Johnson v. Tillie, Whyte, & Co. [1916] ScotLR 181 (12 January 1916)

Johnson v. Tillie, Whyte, & Co. [1916] ScotLR 181 (12 January 1916)

Where the writs produced, though dated within the triennial period, establish both the constitution and prima facie resting-owing of the debt, the requirements of the Act 1579, c. 83 are satisfied; further proof is competent to clarify the effect of any alleged agreement as to settlement and the quantum due.

Citation
[1916] ScotLR 181
Parties
Pursuer: Henry Johnson; Defenders: Tillie, Whyte, & Company
Jurisdiction
Scotland
Judgment Date
12 January 1916
Procedural Posture
Civil / Appeal (reclaiming Motion) From Interlocutor of Lord Ordinary
Outcome
Appeal refused; interlocutor of Lord Ordinary adhered to.
Legal Topics
Prescription and Limitation of Actions, Triennial Prescription, Proof by Writ or Oath, Resting Owing of Debt
Civil Procedure Contract Law Prescription and Limitation of Actions Triennial Prescription Proof by Writ or Oath Resting Owing of Debt

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Parties

Henry Johnson

Pursuer

Tillie, Whyte, & Company

Defenders

Procedural Posture

Civil / Appeal (reclaiming Motion) From Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether writs dated within the triennial period are competent to prove resting-owing of a debt under the Act 1579, c. 83.
  2. 2 Whether further proof beyond writ or oath is competent after sustaining a plea of prescription.

Ratio Decidendi

Where the writs produced, though dated within the triennial period, establish both the constitution and prima facie resting-owing of the debt, the requirements of the Act 1579, c. 83 are satisfied; further proof is competent to clarify the effect of any alleged agreement as to settlement and the quantum due.

Court Disposition

Appeal refused; interlocutor of Lord Ordinary adhered to.

Orders

  • Proof habili modo allowed to clarify the effect of the alleged agreement and the amount due.