SECT. 2.-Triennial Limitation.

The long prescription is simply the extinction of a right because the holder has not made use of it within a certain defined period. The short prescription, or, more properly speaking, Limitation, is an exclusion on the ordinary means of proving the obligation; and as it is said to proceed on the presumption of the obligation being fulfilled, it admits of no interruption or suspension.

The triennial prescription, or limitation of the existence of an obligation to three years, applies to the greater portion of the debts contracted in ordinary business without a written obligation. Under this head may be classed debts to merchants by account, whether for providing goods by wholesale to dealers or by retail to private families; accounts for aliment or board; accounts of law-agents; accounts for medical attendance, &c. It has been held to include a factor's fee for uplifting rents, and general management; but not advances of money, travelling charges, and official fees, nor goods consigned between merchants in different countries.2 Accounts for inserting advertisements in a newspaper have been held to come under this prescription.3

Prescription does not begin to run until the date of the last article; so after an account has been incurred, any addition to it within three years will act like an interruption of the long prescription. New entries, however, though between the same parties, if they be on a separate account, and on a different matter of employment, cannot be counted.5 But where a law-agent was employed in several separate actions by the same party, and his accounts were divided into corresponding branches, it was held that the whole made. one course of employment, and that prescription did not begin to run till the close of the whole.6 It did not break the continuity of a law-agent's account, that he was for a while a partner with another, and that the account for that period was rendered in the partnership name. It is held that if the debtor die within the three years, the prescription does not run.8

1579, c, 83. E. iii. 7, 17.- Grubb v. Porteous, 3d March 1835. Moncrieff v. Durham, 26th May 1836.-3 Robertson and Fyfe v. Contributors to National Monument, 7 July 1840. E. iii. 7, 17.- Campbell v. Jolly, 20th May 1824.-6 Elder v. Hamilton, 15th May 1833.-7 Torrance v. Bryson, 5th December 1840. See Barker v. Kippen, 29th May 1841.Auld v. Aikman, 7th July 1842. See Ross v. Guthrie, 11th November 1839, where the heirs' oath was allowed where the debtor died within three years.

The alimentary allowance by the father for the sustenance of a natural child does not come within the clause of the act applicable to other alimentary debts. In alimentary accounts, each year's charge runs a separate course of prescription. The same takes place as to servants' wages, which prescribe in three years (see above, p. 257), and as to rents of houses where there is no written lease.2

Where an action had been brought and dismissed as incompetent, it was found not to interrupt the triennial prescription; and it would appear that there is no judicial interruption to this limitation (which presumes payment), unless by the commencement within the three years of the action which is finally successful.

Writ or Oath.-The triennial prescription does not extinguish the obligation; it merely deprives the creditor of any means of making it good against the debtor, except two which are mentioned in the act, viz. the oath of the debtor admitting resting owing, or a writing under his hand from which the continuance of the debt is inferred. The oath which can be administered embraces the constitution of the debt, and the subsistence of it; whether it was incurred? and whether it has or has not been paid? If the debtor admit the furnishing in his oath, and a payment to account, he will not be absolved by maintaining that the sum so given was sufficient payment, if there be means of estimating the real extent of the debt. Where the party admits that the debt was incurred, and pleads, not that it was paid, but that it was compensated, prescription is elided, and an inquiry is opened as to the compensation. If, however, the debt be specifically denied, it cannot be proved by ordinary evidence.6 The oath of the wife may be appealed to where her husband has incurred a debt for such furnishings as come under her management, and the oath of any person having the sole management of a concern may be referred to in the same manner.7

Arrestments now prescribe in three years. (See below, p. 469.)8

SECT. 3.-Miscellaneous Prescriptions.

Quinquennial.-A prescription of five years takes place in

3

Thomson v. Westwood, 26th February 1842.- 1579, c. 83. E. iii. 7, 17. Cochran ». Prentice, 24th November 1841.- Napier v. Smith, 14th December 1838.-5 Mitchell v. Ferrier, 23d November 1842.Alcock v. Easson, 20th December 1842.-7 1579, c. 83, Tait on Evidence, 260-264.- 1 & 2 Vict. c. 114, § 22.

all bargains concerning moveables or sums of money, which may be proved by witnesses, such as contracts of sale, letting and hiring, &c. Agricultural tenants are protected by it from demands for rent if not pursued for within five years after removal from the lands on which the rent is due. Rights to multures and minister's stipend also prescribe in five years. This prescription, like the former, leaves the obligation open to proof by the writ or oath of the party, and thus it does not apply to written bargains. The quinquennial prescription does not run against minors.2

Vicennial.-Holograph obligations (see above, p. 139), if not attested by witnesses, prescribe in twenty years. The oath of the debtor may however be appealed to, not for establishing the original obligation, but simply the verity of the writing as holograph of himself. This prescription does not run against minors.3 A service of an heir prescribes in twenty years. (See above, p. 100.)

Decennial.-Actions on the ground of the transactions between tutors or curators, and their wards, on either side, prescribe in ten years after the expiry of the guardianship. (See above, p. 38, et seq.)

Septennial. The operation of certain cautionary obligations is limited to seven years. (See above, p. 217.)

Sexennial.-Bills of exchange and promissory notes prescribe, as documents of debt, in six years. (See above, p. 331.)

CHAPTER IV.

SMALL DEBT ACTIONS.

It is not within the scope of the present work to describe the forms of Process in the Courts of Law. Such a department could afford no serviceable instruction to unprofessional persons, and a treatise on this branch of the law, from which practitioners could acquire any instruction, or in which they would find any thing beyond those general rules of practice with which they must all be thoroughly acquainted, would occupy far wider limits than can be spared.

11669, c. 9. Hunter v. Thomson, 29th June 1843.- 1669, c. 9. E. iii. 7, 20.-3 Ibid. 26.

In these circumstances, it may seem inconsistent with the general plan of the work to give an account of the practice under the small debt acts. But as the procedure in these courts is exceptional to the ordinary rules of practice, and not discussed in the books set apart for the examination of the forms of courts,-as one of the acts gives jurisdiction to persons who may not be practically bred to the law, and as it is intended that both of them should be appealed to without the intervention of legal advisers, there seemed to be a sufficient reason for giving a digest of the acts on this occasion.

SECT. 1.-General Principles.

By these acts, a summary and exclusive jurisdiction is vested in Sheriffs and Justices of peace respectively. There is no recourse from their judgments to a higher court, unless in the special circumstances in which a sheriff's decision may be appealed against to the Court of Justiciary; but if the statutory jurisdiction be exceeded, or any thing irregular or illegal be done, the Court of Session will interpose by suspension or reduction, as where a clerk allowed warrant of poinding to be extracted without a precedent charge,1 and where the justices allowed a record to be made up with written pleadings in contravention of the act.2

It has been held that compliance with the terms of the Acts is a matter of public policy, and that parties may not dispense with it of consent-as by assenting to the question being discussed by written pleadings.3 It is difficult to say how far the circumstance, that the foundation of the debt is palpably illegal, will be a foundation for a suspension or reduction of the proceedings, because it is difficult to draw a line between such cases and those where the judges are merely wrong in point of law-a defect which admits of no remedy in a higher court. A suspension was passed on a decree of the justices for one quarter's aliment of a bastard child, the paternity never having been established against the person decerned against. A decree of the justices for the contents of a procurator's account, for conducting a case in their court, was suspended, it being contrary to the terms of the statute to act by procuration.5 Lord Meadowbank in this case made the remark, "I apprehend the meaning of the

'Munro. Dick, 21st June 1839.-2 Miller v. M'Callum, 1st Feb. 1840. Ibid., 14th November 1840.- Lindsay v. Bar, 23d June 1826.— 5 Miller v. M'Callum, 14th November 1840.

small-debt act was, to confer on justices jurisdiction in actions of debt for which there was a legal origin. The proper course is for the court to instruct the justices what cases they have a right to entertain."

Some of the errors of the justice of peace small-debt courts have arisen from their attempting to exercise, in the administration of the small-debt act, the powers conferred on them by other statutes. A case having occurred in which the justices decerned against a pawnbroker for the value of a pledge improperly withheld, without the special form of the pawnbrokers' acts having been adopted, the proceeding was with some hesitation sanctioned by the court; but on the recurrence of a like informality, it was found necessary to check it by suspension. By a special act, arrestment of wages in dependence of the action is abolished in cases under the small-debt acts.3

SECT. 2.-Sheriff Courts.

Actions for small debts in the sheriff courts are regulated by the statute 7th Wm. IV. and 1st Vict. c. 41. The amount for which such action may be brought is limited to £100 Scots, or £8, 6s. 8d. It is competent in all demands of civil debt, including rents and statutory penalties; and the action may be instituted where the original debt exceeds £8, 6s. 8d., provided the excess be departed from (§§ 2, 4, 5). Where actions for the sum so limited are pursued in the ordinary form, the judge may limit the expenses to such as are allowed by the act in small debt cases (§ 36). Such cases may be removed with consent of the pursuer from the sheriff's ordinary court to the small debt department, either when the original claim does not exceed the sum limited, or when it is reduced to that amount in the course of the proceedings (§ 4).

Actions of Multiplepoinding may be raised under the act, for the division of any sum not exceeding £8, 6s. 8d. among several claimants (§ 10).

Warrants may be issued for citing witnesses, transferable from county to county by indorsation; and any witness not appearing after a citation of forty-eight hours, is liable to a penalty of 40s. unless he have a valid excuse (§ 12).

A party who does not appear personally or by a friend, is held to have abandoned his case, unless a good excuse

1 Henderson v. Wilson, 18th January 1834.- M'Connell v. Scott, 21st November, 1840.-3 8 & 9 Vict. c. 39.