THE NATIONAL BANK OF SCOTLAND v JAMES HOPE and Mandatary (Court of Session)

In bar of this last defence the pursuers pleaded, that when, in the course of the multiplepoinding, they discovered that James Hope was a partner in the company which had carried on its business under the name of ‘Robert Hope,’ and without any more distinctive firm, claims against Robert Hope became claims against him not only as an individual but as a partner; and being thus made in an action in which decree could be obtained against Robert's estate, as one of the partners, served to interrupt prescription.

Note .—‘The only defences on which the defender seriously asked absolvitor, without admitting or offering probation of the disputed facts, were the two specially mentioned in the interlocutor; and the Lord Ordinary is bound to say, that he has not repelled either of them without some hesitation.

The defender admits that the pursuers are entitled, hoc statu, to assume the truth of these averments; and he meets the argument on the case referred to, and the plain principle on which it proceeds, partly by observing that this principle is not sufficiently set forth on the record, and chiefly by contending that its adoption only gives more irresistible weight to his second great defence of the sexennial prescription.

Upon the other point, of prescription, there is also some perplexity. More than six years had undoubtedly elapsed before the defender was convened in the present action. But the bills had been produced and claimed upon in a multiplepoinding, in which he was a party, at an early period; and in that action, and long before the expiration of the six years, they were claimed upon as vouchers of a company debt. The question is, whether this was sufficient to interrupt the prescription?

A. Wood .—1 admit that interruption as to one partner does so as to his other partners; but it not being stated in the summons that Robert Hope signed as a partner, the multiplepoinding cannot interrupt against James Hope, who was a partner.