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Scottish Court of Session Decisions >>
Francis Farquharson v His Majesty's Advocate. [1755] Mor 11108 (22 July 1755)
URL: http://www.bailii.org/scot/cases/ScotCS/1755/Mor2611108-313.html Cite as:
[1755] Mor 11108
Triennial Prescription of Accounts, Act 1579. c. 83.
Francis Farquharson v. His Majesty's Advocate
Date: 22 July 1755 Case No. No 313.
A Clerk to a submission found to have no claim for his trouble, after three years, unless proved resting owing by writ or oath.
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Francis Farquharson having been clerk to a submission between Lord Lovat and Fraser of Phopachy, in the year 1738, entered a claim upon the estate of Lovat for L.100 Sterling to himself, and L. 20 Sterling to his clerk, alleging that he had not been paid by Lord Lovat.
Objected for the Crown; That the claim was cut off by the triennial prescription, unless proved by writ or oath of party.
Pleaded for the claimant; This debt does not fall under the statute 1579; only accounts current, and debts contracted de die in diem, are under the statute, and may not be proved by witnesses; because of the danger of making up accounts, consisting of a variety of articles, from the memory of witnesses; but a debt, such as this, being a honorarium for a single article of service, neither falls under the words nor intendment of the law; action would have been good against Lord Lovat himself; for it was found in the case of Gabriel Napier, (See Appendix) that a clerk to a submission can pursue for his fee, though the arbiters cannot; action, therefore, will be likewise good against the Crown.
2do, This case falls under the exception of the statute; the debt is proved by writ, viz. by the decreet-arbitral produced, which bears to be written by the claimant's clerk; and this is not only proof by writ of the claimant's having been employed, all that the law requires, but also of the performance of the work.
Answered for the Crown; The words of the act, ‘merchants’ accounts, and ‘other like debts,’ are sufficiently extensive to comprehend this claim: By repeated decisions, writers' and agents' accounts have been found to be comprehended under this law; 16th December 1675, Somervell, No 285. p. 11087.; 29th November 1709, Mason, No 298. p. 11094. And the true reason of the act, which is, that no man is presumed to let his accounts lie over unpaid for three years after the date of the last article, applies with greater force to this account than to any other; debts of this kind do not enter into an account; they are commonly paid when the decreet-arbitral is pronounced, and no receipts or discharges are taken for such payment; the legal presumption, therefore, is, that this honorarium was paid by Lord Lovat; and that presumption can only be taken away by writ or oath of party.
Answered to the second; This case falls not under the exception of the act; for that no proof arises from the decreet-arbitral, that the work was performed by the claimant; it proves no more than that the decreet was written by such a person. Besides, the presumption of payment, established by the act, still remains; and the words, “proved by writ,” means proved by writ of the debtor, not of any third party.
“The Lords dismissed the claim.”
Act. Burnet.Alt. Macqueen.Clerk, Kirkpatrick.
Fol. Dic. v. 4. p. 107. Fac. Col. No 159. p. 240.
