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Katharine Donaldson, Relict of John Kedzlie, v George Murray. [1766] Mor 11110 (15 January 1766)
URL: http://www.bailii.org/scot/cases/ScotCS/1766/Mor2611110-315.html Cite as:
[1766] Mor 11110
Triennial Prescription of Accounts, Act 1579. c. 83.
Katharine Donaldson, Relict of John Kedzlie, v. George Murray
Date: 15 January 1766 Case No. No 315.
A writing, holograph of the defender, but not signed, was found sufficient to bar the triennial prescription.
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Katharine Donaldson brought a process against Murray for payment of L. 30:13: 4 Sterling, as the price of malt delivered to him at different times, and, in proof of her libel, produced a writing in the following words:
“November 21st, 1755, George Murray to Mrs Kedzlie, to 46 bolls of malt, at different times, this day included, at 13s. 4d. Sterling per boll.’
This note was admitted to be holograph of Murray, but was not signed.
The defender pleaded the triennial prescription; and contended, That the exception in the act 1579, c. 83. with regard to written obligations, and a proof by writing after three years, could be understood of probative writings only; but that this note was not probative, and could not be considered in any other light than as an open account.
Answered; The effect of this prescription is only to limit a proof by witnesses, of which our law is particularly jealous. Hence it has been understood to apply to those cases where the creditor proposes to prove the constitution of the debt by parole evidence alone. But, where there is any writing under the hands of the debtor, though affording but presumptive evidence of the debt, that has been thought sufficient to entitle the creditor to a proof by witnesses, if still necessary, or to throw the onus probandi of payment upon the debtor, according to the degree of evidence which arises from the writing. It has never been thought necessary that this writing should be strictly probative, or such as would be sufficient per se to establish the debt, or show that it is still resting. Thus it was found, that a letter, containing a general mandate for “such furnishings as should be necessary,” barred the prescription, and entitled the creditor to prove by witnesses, after three years, that furnishings were actually made; 5th July 1681, Dickson, No 288. p. 11090. The same effect was given to a letter acknowledging debt in general; 20th February 1708, Elliot, Div. 15. h. t. In neither of these cases was the writing such as to create a valid obligation, or per se to prove the furnishings or debt pursued for The note founded on in the present case, being holograph of the defender, and found in the custody of the creditor, appears such proof that the malt was delivered to the defender, as even to supersede the necessity of any further evidence.
“The Lord Ordinary, in respect the note was of the hand-writing of the defender, decerned for the sum. Upon two reclaiming bills and answers, the Lords adhered.”
Act. Rae.Alt. Alex. Gordon, Junior.Clerk, Home.
Fol. Dic. v. 4. p. 107. Fac. Col. No 31. p. 54.
