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M'Farlane, upon an advance of L.60, consigned to Brown a quantity of oil to the value of L.93. 3s. 4d. and at the same time wrote Brown the following letter accompanying an invoice of the oil:—‘30 th September 1819.—I have this day received L.60 to account of the above oil, consigned to you as security; which oil I allow you to dispose of to the best advantage, unless the above L.60 is paid within a month of this date.’
II. The plea of prescription was farther inapplicable, as the consignment had taken place under a written contract; and this was merely an action of count and reckoning for the proceeds of property belonging to the advocator, and which the respondent had in his possession; Tait on Evidence , p. 458; Armour v. Boyack, 1685, Mor. p. 11091; Drummond v. Stewart, 19th Feb. 1740, Mor. p. 11,103; Butchard and others v. Mudie and others, 13th June 1781, Mor. p.11,113; Saddler v. M'Lean, 17th Feb. 1794, Mor. p. 11,119; Hamilton and Co. v. Martin, 24th January 1795, Mor. p. 11,120.
Answered —The delivery of the oil in question formed part of a transaction between the parties relating to moveables alone. The triennial prescription applied to such a transaction. At all events, the quinquennial prescription of the act 1669, c. 9, was directly applicable. The authorities referred to by the advocator are not applicable, as they refer to cases of mandate or factory alone. This is not an action for count and reckoning as under a factory or mandate, but an action for payment of the alleged balance of a particular account.
The only writing in this case was the letter accompanying the invoice of the goods, which does not constitute a writing of the nature of that writ by which prescription can be elided; that letter was not written by the advocator; and, as it did not require to be discharged by writing, it cannot be considered as evidence that a debt or claim existed within the period of prescription, and therefore could not elide the presumption, after prescription had run, that the debt was discharged; Ross v. Shaw, 19th Nov. 1784, Mor. p. 11,115; Douglas v. Grierson, 18th Nov. 1794, Mor. p. 11,116.
The Lord Ordinary ‘advocated the cause, altered the interlocutor of the sheriff, and repelled the plea of prescription.’
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