His Majesty's Advocate v. Jean Hay, Widow of John Cuthbert [1758] UKHL 2_Paton_272

UKHL
His Majesty's Advocate v. Jean Hay, Widow of John Cuthbert
[1758] UKHL 2_Paton_272 · 1758-04-26
A bond was granted by a party to his creditor, upon which adjudication, charter, and infeftment followed, this adjudication comprising several other separate debts; the bond debt lay over for 66 years, when the present claim was made, and the negative prescription pleaded against the adjudication: Held that a claim made before the Government Commissioners of Enquiry on forfeited estates and registration thereof, together with a submission, followed by decree-arbitral, entered into by the debtor with one of the creditors in the separate debts comprised in this adjudication, and assignation of that debt by him to the debtor within the 40 years, were sufficient to interrupt the negative prescription in regard to the debt, it being one of those comprised in the adjudication thus acknowledged by the debtor.Nov. 6, 1690.Hugh, Lord Lovat, granted bond, of this date, for the sum of 1600 merks Scots, payable at the term of Martinmas then following, in the year 1691, to the Bishop of Murray, his heirs, executors, or assignees.1703.Feb. 9, 1703.In 1703, this bond was assigned to Robert Frazer, advocate, which appears to have been done in trust, and for the Bishop's behoof; as appears by letter, of this date, under Frazer's hand, declaring that this bond was “assigned in trust to me for your behoof.”

Nov. —

On 18th November 1703, the said Robert Frazer, upon the above bond, as well as upon other bond debts assigned to him in trust, and a bond debt due to himself by Lovat, obtained decree cognitionis causa against Lady Frazer of Lovat, eldest lawful daughter of Hugh Lord Lovat, the debtor then deceased. In this decree there was comprised a bond, granted by Hugh Lord Lovat, to Janies Frazer of Phopachy, dated 16th April 1694, for the sum of 1800 merks, which was afterwards assigned to Robert Frazer, in trust for Alexander

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Jan. 26, 1704.May 9 and 26, 1704.Upon the above decree cognitionis causa adjudication followed, against the estate of Lovat for the several debts comprised therein; and charter of adjudication and infeftment duly recorded, of these dates.Mar. 14, 1707.The Bishop of Murray, reciting the bond granted by Hugh Lord Lovat; and the assignation thereof in trust to Robert Frazer, did, of this date, assign the said bond to John Stewart, merchant in Inverness; and he, of same date, granted back bond, acknowledging that the same was granted and assigned to him by the Bishop, for behoof of Jean Hay the respondent, and her children, and binding himself to denude in her favour.In the meantime, titles had been made up in the name of Lord Prestonhall, whose eldest son, Alexander Mackenzie, had married the eldest daughter, and heir to the estates of Hugh Lord Lovat, against whom the decree of cognitionis causa was obtained.1706.After this, the title of Alexander Mackenzie was made up, after his father had purchased several of the debts and encumbrances on the estate. He himself also purchased in several other adjudications. Thereafter Alexander Mackenzie was attainted, for joining in the rebellion of 1715, and his estates forfeited.In 1718, the executor of Robert Frazer, who had constituted the above debts against the estate of Lovat, lodged a claim before the Government Commissioners of Enquiry, setting forth several debts, and among the rest, the 1600 merk bond of 1690 in question. It was duly registered as a claim by the Government Commissioners on Lovat's estate, the liferent interest which Alexander Mackenzie had therein being involved in his forfeiture.1738.In 1736, Stewart disponed this bond to the respondent, for behoof of her children.In 1738, Simon Lord Lovat, who had succeeded to the estates, and Robert Frazer, grandson of James Frazer of Phopachy, the grantee in the bond of 1694 for 1800 merks, comprised, as before mentioned, in the adjudication, did enter into a submission to William Grant, and James Fergusons, Esqs., advocates, as arbiters, whereby these gentlemen, in terms of the submission to them, and after discussion had therein, decerned and adjudged the said Lord Lovat to pay to the said Robert Frazer the sum of £1000

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In 1747, Lord Lovat was attainted of high treason, and his estates forfeited; and the present claim on the 1600 merk bond was made by the respondent in 1749, in pursuance of the vesting act thereanent, saving the right of lawful and just creditors.It was objected to the claim by the appellant, on behalf of the Crown, that no document having been taken on the debt, from the date of Robert Frazer's adjudication in 1704, until the entry of the present claim, the same was prescribed and barred by the negative prescription. To this objection it was answered, that the adjudication obtained by Robert Frazer in 1704, having been completed by charter and sasine, became a right of property, against which the negative prescription could not run; that the lodging this claim against the Lovat estate, in pursuance of the vesting act in 1715, before the Government Commissioners of Enquiry, and the registration thereof by them, was equivalent to pursuing the debt; and that the foresaid submission entered into between Lord Lovat and Robert Frazer in the year 1738, and the decret arbitral pronounced therein in 1739, were documents taken upon the adjudication, and which must preserve the whole adjudication, though comprised of distinct and separate debts, as to the right of every person therein, as well as the particular claims thereby submitted and adjudicated on. And further, that it appeared from the disposition and translation by John Stewart to the respondent Jean Hay in the year 1736, that he, Stewart, held this bond in trust for the behoof of her children , who being all minors, and the years of minority being deducted, the negative prescription could not apply to them.July 27, 1757.The Lords found, on report of Lord Prestongrange, unanimously, “that the bond for 1600 merks, with the adjudication, charter and infeftment thereon, are not cut off by the negative prescription.”Against this interlocutor the present appeal was brought.Pleaded by the Appellant .—The act of parliament 1469, establishing the negative prescription, declares, “That the party to whom the obligation is made, and who has interest

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Pleaded for the Respondent .—That this bond originally was assigned to Robert Frazer, for the purpose of suing diligence thereon, and taking adjudication for the same against the estate of Lovat, with the view to make the same

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After hearing counsel, it was

Ordered and adjudged that the interlocutor be affirmed.Counsel: For Appellant, C. Pratt, Ro. Dundas, C. Yorke. For Respondent, Edward Starkie, R. Mackintosh.Note .—These two cases derive importance from various considerations. The first seems to authorize the inference, that nothing will be sufficient to interrupt the negative prescription, except some proceeding, in a question with the proper debtor in the obligation , within the years of prescription. In that case, certain proceedings had taken place in a process of reduction and declarator of extinction of the debt, as between a co-creditor of the common debtor, but to which that debtor himself was no party, and these were held not to interrupt the running of the prescription, so far as he was concerned. But, in the second case, (which is not reported in the Court of Session reports,) the recognition of a debt as subsisting, was inferred from the parties acquiring right to a decree of adjudication and other documents, in which that debt was contained, though they obtained no right to this debt itself. Such recognition of the debt, though merely inferred, in the manner now noticed, by the proper debtor, was held to interrupt the negative prescription. And this seems to give a latitude to the express words of the statute as to following furth , or taking document upon the debt.But these cases now reported, derive considerable additional importance, from a discussion regarding them, which has recently occurred, in a case now depending before the Second Division of the Court of Session, upon a report by Lord Wood. In the printed pleadings in that case, which has not yet been decided, the cases now referred to, have undergone very ample discussion. This is the case of M'Neill or Morison v. Yorston , the printed pleadings of which bear date November 1849, * and one of which is drawn by Professor More: The circumstances are these:—In 1748, Neil M'Neill obtained a wadset over lands in the island of Gigha for £410 sterling. The wadsetter had four sons, Donald, John, Hector, and Malcolm, and two daughters, Janet and Mary. Heritable securities, which were followed by infeftment, were granted in favour of those sons and daughters, so as to create a subordinate security over the wadset right, to the full extent of £410 covered by it. Neil M'Neill, the original wadsetter, died in 1749, and was succeeded by his eldest son Donald M'Neill, who made up a title, as his father's heir, to the original wadset, and in 1775 he disposed this wadset to John Cowan. The lands of Gigha, over which this wadset extended, were sold to Sir Archibald Campbell, who also purchased the wadset from Cowan, and obtained right thereto in 1779. In the meantime the subordinate heritable securities which had been constituted in favour of Neil M'Neill's children, and which exhausted the £410 contained in the wadset, had been entirely overlooked by all parties; but, having been discovered upon a search of the records, Sir Archibald Campbell applied to Cowan to produce discharges of these heritable securities. An action of reduction and declarator of extinction of

Footnote

* It is understood that the death of one of the parties has prevented the Court from deciding this case.At first Lord Swinton, as Ordinary, pronounced an interlocutor finding that it was incompetent for a wadsetter to create a subordinate heritable security upon the wadset right; but he afterwards altered this interlocutor, and found that the wadsetter “had full power to burden the said lands to the full amount of the principal wadset;” and the Court adhered to the Ordinary's interlocutor, upon advising a reclaiming petition, with answers. It was thus decided, that such subordinate heritable securities were, like feurights, separate heritable burdens, ingrafted on the principal right. This case, so far as this point is concerned, is reported in the Dictionary, p. 16,555.The case then turned upon the question, as to whether these heritable securities had been extinguished by payment , and after various proceedings before the Lord Ordinary, it fell asleep subsequent to 1799. But it ultimately turned out that there had been no payment of these securities, and in 1818 Mr. M'Neill, then the proprietor of Gigha, granted a precept of clare constat in favour of Neil M'Neill, the son of Malcolm M'Neill, who was the youngest son of the original wadsetter, as the heir of line of his said deceased father, and also of his deceased uncles, John and Hector, and of his aunt Janet, to the respective heritable securities held by them. And Neil M'Neill received payment of their shares of the heritable bonds. By the precept of clare constat Mr. M'Niell of Gigha admitted the subsistence of the debts, but it was overlooked that these heritable debts were payable, not to the heir of line of the creditors, but to the heir of conquest .Consequently, Janet M'Neill or Morison, the daughter of Donald M'Neill, the eldest son of Neil M'Neill, the original wadsetter, being, in right of the father, the heir of conquest of these deceased creditors, and not having heard of the proceedings above mentioned till 1836, then wakened the process of reduction and declarator, and also, after serving herself heiress of conquest to her deceased uncles and aunt, raised an action for payment of the heritable debts due to them.In defence against this action it is pleaded that any claim at her instance was cut off by prescription, in respect no proceedings had been taken by her for greatly more than 40 years after the date of the securities. This raised the question, Whether the proceedings, in the reduction and declarator, to which she had been called as a defender, did not interrupt the prescription? and also, Whether the acknowledgment of the proper debtor in the heritable securities, as to their subsistence, (by the precept of clare constat alluded to,) though made to a wrong heir, did not also bar the prescription? Various other pleas were also stated, to which it is here unnecessary to advert. But it was pleaded, on the authority of Robertson , 27th November 1751, that Donald M'Neill, the father of Mrs. M'Neill or Morison, having acquired the original wadset, in right of his father, and being also the heir-apparent of the creditors in the heritable bonds above mentioned, the latter were extinguished confusione . It turned out, however, on a careful examination of the pleadings in the case of Robertson , that this case must have been erroneously reported, as the pleadings shew, that the decision must have turned not on the doctrine of confusio , but on the ground of the wadset in that case having been radically null, and so neither requiring, nor admitting of any title being made up to it.Lord Wood, in reporting the case now referred to, says that “both the plea of prescription and the other pleas of the parties, present points of considerable importance, apparently not free from difficulty, and which deserve the consideration of the Court.” He further says:
“The Lord Ordinary is inclined to be of opinion that prescription was interrupted. At the same time, the case of Hay , 9th March 1756, (M. 11,276,) and House of Lords, 24th April 1758, and of Wright , 11th December 1717, (M. 11,269,) may be thought to be adverse to this decision. It, however, occurs to the Lord Ordinary that there is room for soundly distinguishing between them and the present case.”