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Hamilton of Bangour v My Lady Ormiston and her Children. [1716] Mor 11100 (25 July 1716)
URL: http://www.bailii.org/scot/cases/ScotCS/1716/Mor2611100-303.html Cite as:
[1716] Mor 11100
Triennial Prescription of Accounts, Act 1579. c. 83.
Hamilton of Bangour v. My Lady Ormiston and her Children
Date: 25 July 1716 Case No. No 303.
Aliments prescribe, quoad modum probationis, in 3 years.
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In a process betwixt these parties, among several other points this came to be discussed, viz. What is the term of prescription of bygone aliment? And it was contended for the defenders, That all aliments prescribe, quoad modum probationis, in three years, conform to the act James VI. Parl. 6th, cap. 83d, by which it is statuted, That all actions of debt, for house-mails, men's ordinaries, servants' fees, merchants' accounts, and other the like debts, that are not founded upon written obligations, be pursued within three years, otherways the creditor shall have no action, except he either prove by writ, or by oath of his party.
Answered for the pursuer; That there is not one word in the act of Parliament that with any propriety of speech can be extended to signify aliments; and that “men's ordinaries” which is the only word that can with any colour be so stretched, by the common and known acceptation of the word, signifies no more but men's entertainment and mails in a public-house, and that the words, “all others of the like nature,” are certainly restrictive, and do exclude aliments, as being of a very different nature from any that are there enumerated.
Replied for the defender; That aliments fall very properly under the act, it being designed to cut off many debates for debts that had tractum, which consisted of furnishing from time to time, and were not usually constituted by writ, and where the presumption lay that they would not lie over unpaid, and frequently not being constituted by writ, receipts and discharges were often, omitted; and therefore, 1mo, “Men's ordinaries” may very well include aliment, which is a daily provision; and though the true import of the word is not at this day so well understood, yet in the general notion of it, it seems to comprehend all maintenance furnished from time to time; 2do, Though the word had a restricted signification, yet the other clause in the act “and other the like debts,” does certainly comprehend the subject in question, the act being plainly designed to take in all those current accounts of furnishing, providing, &c. and there can be no difference assigned betwixt the merchant's and the entertainer's account; nay, the reason of the law militates much more in this than the other, the advance for aliment being more necessary, and not so usually lying over as that of merchant-accounts; 3tio, Our practice favours it, for so it was almost in terminis decided in February 1714, Lady Carnfield against the Duke of Gordon, (see Appendix); and it is consonant to Sir George M'Kenzie's opinion, who, in his observations upon this act, says, That if action be intented within the three years upon spuilzies, removings, or aliments, &c. it does not prescribe in less than 40 years.
“The Lords found the aliment prescribed in the terms of the act of Parliament.”
Act. Boswell.Alt. Sir Walter Pringle.Clerk, Gibson.
Fol. Dic. v. 2. p. 119. Bruce, v. 2. No 25. p. 33.
*** A similar decision was pronounced January 1722, Cuming against Andrew; see Appendix.
