No. 80. Feb. 14, 1901. Christison v. Knowles. 2D DIVISION. farshire. ALEXANDER CHRISTISON, Pursuer (Appellant).-Wilson, K.C.-Lamb. Adamson. Prescription-Triennial Limitation-Continuity of Account-Change in method of rendering Accounts.-In 1900, a miller raised an action against a horse-hirer for payment of £754 as the balance due on an account for corn and food-stuffs supplied by the pursuer to the defender. The account sued on was stated as a continuous account, beginning 2d May 1887 and ending 30th November 1899, and set forth various payments to account between these dates. The pursuer averred, inter alia, that in December 1895, when a large balance was due by the defender to the pursuer on the account, the defender requested the pursuer thereafter to send a note of the items supplied each month, promising to pay these when rendered, and to pay up the old balance by instalments from time to time; that in accordance with this arrangement a note of the supplies was given to the defender each month; that for some time the defender paid instalments approximating to the amount of these monthly notes, but that ultimately he became very irregular in paying the monthly instalments; that in December 1899 the defender's brother offered to pay the balance admittedly due on the monthly instalments, but refused to pay the older items; and that the offer was accepted, and payment made without prejudice to any rights or claims which the pursuer might have for supplies given prior to December 1895. The defender averred that no balance was due by him to the pursuer. He produced monthly accounts, receipted by the pursuer, for the period subsequent to December 1895, and as regarded the earlier portion of the account he pleaded the triennial limitation. Held, looking to the pursuer's averments, and to the monthly receipted accounts produced, that the account relating to the period prior to December 1895 had been closed under the arrangement then made, and that the triennial limitation applied to it. IN March 1900, Alexander Christison, miller, Denton Mill, near Sheriff of For-Guthrie, Forfarshire, raised an action in the Sheriff Court at Forfar against Keith Knowles, horse-hirer, Panmure Arms Hotel, Edzell, for payment of £754, 9s. 1d., being the balance of an account for corn and food stuffs supplied by the pursuer to the defender on various dates between 2d May 1887 and 30th November 1899, with legal interest thereon. The pursuer averred that (Cond. 2) from 1884, when the defender went to the Panmure Arms Hotel, the defender had ordered and obtained supplies of corn, meal, and food stuffs from pursuer for the hotel stables and farm, "and up till the commencement of the account sued for, these were more or less regularly paid for. Since the beginning of this account, however, defender became very irregular in paying, and although he made payments from time to time as indicated in the account, there is a balance still due of £754, 9s. 1d., the amount sued for. A detailed account of the items supplied and payments made is produced herewith. Pursuer is still supplying the defender with food stuffs." The account produced was stated as a continuous account, extending from 2d May 1887 to 30th November 1899, and shewing on the one side several entries each month for oats, &c., supplied, and on the other side entries of payments to account, the debit balance against the defender, on the whole, being brought out at £754, 9s. 1d. No. 80. -the sum sued for. Feb. 14, 1901. The pursuer further averred;-(Cond. 3) "In December 1895, Christison v. defender, who was then making arrangements to have his hotel taken Knowles. over by a limited liability company, although there was then a large balance due, requested pursuer thereafter to send a note of the items supplied each month, promising to pay these when rendered, and to pay up the old balance by instalments from time to time as he was able. In accordance with this arrangement a note of these supplies was given to defender each month, or at short intervals, and he paid instalments of what he was due pursuer for some time, approximating to the amounts of these monthly notes, and he also made payments to account of the balances then due on 6th January 1896 and 16th September 1897, and on the latter date promised to pay a further sum of £30, which, however, he did not do. Latterly defender became very irregular in paying instalments also, and on 25th September 1899 this action was threatened. After sundry correspondence, defender's brother, David Christie Knowles, offered to pay the balance admittedly due on these monthly notes, but. refused to pay the older items. The payment offered was accepted on 5th December 1899, but only without prejudice to any rights or claims the said Mr Christison may have for supplies given prior to December 1895.'" The pursuer pleaded, inter alia;-(1) The account sued for being due and resting owing, decree should be granted therefor as craved. The defender averred that on a just account being stated, no balance was due by him to the pursuer; referred to and produced the receipted accounts after mentioned; and pleaded, inter alia;—(2) The action, in so far as concluding for food supplies prior to December 1895, is barred by the triennial prescription. The receipted accounts referred to and produced by the defender were a series of approximately monthly accounts for oats, &c., rendered by the pursuer to the defender during the period from April 1896 to August 1899, and receipted by the pursuer on payment by the defender. The defender also produced the following receipt (being that referred to by the pursuer in cond. 3), which was granted to D. C. Knowles, the defender's brother, and was signed on behalf of the pursuer :"Brechin, 5th December 1899.-Received from D. C. Knowles, Esq., Market Street, the sum of sixty-nine pounds eleven shillings and sixpence sterling, being balance of monthly accounts due by his brother, Mr Keith Knowles, Edzell, to Mr Alexr. Christison, Denton Mills, for oats, &c., supplied up to 30th November last (and which monthly accounts are hereby discharged, but without prejudice to any rights or claims the said Mr Christison may have for supplies given prior to December 1895)." It was not disputed by the pursuer that the whole items of the account sued on for the period after December 1895 were discharged by the receipts produced by the defender, and consequently that the sum of £754, 9s. 1d. sued for was the balance brought out by the account sued on for the period prior to January 1896. On 7th June 1900 the Sheriff-substitute (Lee) pronounced this interlocutor:-"Finds in fact that for many years the pursuer has supplied the defender with corn and other food stuffs; that from 1884 to December 1895 said goods were supplied on current account, and No. 80. Feb. 14, 1901. Christison v. the defender from time to time made payments to the pursuer in reduction of the amount due by him; that in December 1895 the account then current between the parties was closed by mutual arrangement, and that thereafter monthly accounts were handed to the defender, who has produced valid receipts in discharge of most thereof: Finds in law that, in the circumstances stated, the account which was closed in December 1895 and the subsequent monthly accounts fall to be dealt with as separate debts, and that the term of prescription in the case of each runs from the last item in each account: Therefore sustains the second plea in law of the defender to the extent of limiting the pursuer's proof of the prescribed accounts to the writ or oath of the defender." The pursuer appealed to the Sheriff (Johnston), who, on 20th July 1900, adhered. that the On 6th December 1900 the Sheriff-substitute pronounced this interlocutor:-" Finds in fact that it is admitted by the pursuer that the whole items in the account No. 4 of process dated subsequent to December 1895 have been paid by the defender; defender does not deny the constitution of the debt alleged by the pursuer from May 1887 to December 1895; and that the pursuer has failed to produce any writ of the defender shewing the subsistence of the debt after three years from the close of the account in December 1895 Finds in law that the pursuer has not proved his debt by the writ of the defender, as required by the Act 1579, cap. 83: Before final judgment allows the pursuer, if so advised, to lodge a minute referring his debt, in so far as prescribed, to the oath of the defender, and for this purpose appoints the case to be put to the roll on Thursday, 20th December 1900." On 20th December 1900 the Sheriff-substitute, in respect that the pursuer had failed to refer the debt sued for to the oath of the defender, assoilzied the defender from the conclusions of the petition. The pursuer appealed, and argued ;-The account sued on was truly continuous. The arrangement made in December 1895 did not import a closing of the account or a change in the course of dealing, but merely a change in the method of payment. The plea of prescription ought therefore to have been repelled. At all events a proof ought to have been allowed.2 The argument for the defender sufficiently appears from the opinions of the Court.3 LORD YOUNG.-The triennial prescription deals with trading accounts, and requires those who supply goods to see that their accounts are regularly settled, or to take a document from the debtor acknowledging subsistence of the debt, the alternative being that they have no right to have an action established except by reference to their debtor's conscience. In the present case, in December 1895, when there is said to have been a sum approaching £1000 due to the pursuer, he and his customer arranged to change their system of dealing. It is impossible to deny upon the record and the docu 1 Ross v. Cowie's Executrix, Dec. 4, 1888, 16 R. 224. 2 Wotherspoon v. Henderson's Trustees, July 10, 1868, 6 Macph. 1052, 40 Scot. Jur. 584. 3 Cited by Defender.-Beck v. Learmonth, Nov. 30, 1831, 10 S. 81. Feb. 14, 1901. ments before us that there was a change made then; indeed, it is not dis- No. 80. puted, but is a matter of averment by the pursuer himself. This change was made in December 1895, and was acted upon for about five years, so Christison v. that instead of there being a continuous account monthly accounts were Knowles. rendered, and, generally speaking, were settled. Sometimes there was a small balance at the settlement at the end of the month, which was not paid, but was carried on to the following month, and so on. Now, at the end of five years, after the closing of the old account in December in 1895, this action is brought for the recovery of the balance then undischarged. The question which we have to consider is, whether the triennial prescription applies to this balance. In my opinion it does. In my opinion it does. If this creditor, who has not been attending to his own interests, by either insisting on payment or taking a document, suffers upon a reference to the conscience of his debtor, he has himself to blame for the consequences. I am of opinion that the judgment of the Sheriffs should be upheld. LORD TRAYNER.-I concur. The triennial prescription begins to run from the last date in the account. If the account is a continuous account, no matter how long the period over which it extends, it is the last date in that account from which the triennial period must be reckoned, but if the account is stopped at a certain date (although the trading between the parties may continue) from that date the triennial prescription of the account begins to run. The question therefore here is, whether the account sued for is a continuous account. I think it is not. In order to shew this, it is sufficient to refer to the averment of the pursuer in condescendence 3, where he distinctly states that prior to 1895 there was a continuous account between him and the defender, which was then closed, and that thereafter a different arrangement was made, to the effect that instead of adding what was afterwards supplied to the account which had been running, these future supplies should be charged in separate accounts, and separately settled. It is also recognised that the account was closed at December 1895 by a statement that while the defender was thereafter to pay for monthly supplies each month, he was to pay off the amount of the old account by instalments as he could. That this arrangement was made and acted on is abundantly clear from the receipted monthly accounts and other documents produced. LORD LOW.-I am of the same opinion. I agree with what your Lordships have said. I think it is impossible to get over the receipts which have been produced, and I have no doubt that the Sheriffs have taken a proper view of this case. The LORD JUSTICE CLERK and LORD MONCREIFF were absent. The pursuer having moved to be allowed to lodge a minute referring the resting owing of the debt to the defender's oath,—— THE COURT pronounced the following interlocutor:-" Recall in No. 80. Feb. 14, 1901. Christison v. Allows the pursuer to lodge a minute referring the debt sued for to the defender's oath, reserving meantime all objections to said minute: Quoad ultra affirm the interlocutors of 7th June and 20th July 1900, and find in fact and in law in terms of the interlocutor of 6th December 1900." R. S. SHARPE, Solicitor-BOYD, JAMESON, & KELLY, W.S.-Agents. No. 81. Feb. 14,1901.* 2D DIVISION. HUGH BARR AND ANOTHER, Petitioners (Appellants).— JAMES LEE, Respondent.-Jameson, K.C.-Cook. Police-Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. c. 55), sections 152, 153-" New Street"-Width-Commissioners-Power to sanction width under 36 feet-Dean of Guild-Jurisdiction-Ultra vires.—The Burgh Police (Scotland) Act, 1892, enacts, sec. 152,-" It shall not be lawful to form or lay out any new street within the burgh, unless the same shall . . . be at least 36 feet wide." Sec. 153,-" Every person who shall, from and after the date when this Act shall come into operation in the burgh, form or lay out any new street or who shall build, raise, or add to any house or premises contrary to the provisions of this Act, unless the same shall have been formally sanctioned by the commissioners on a consideration of the special circumstances of the case, which sanction they are hereby empowered to give, shall forfeit and pay" a penalty. . Held that by sec. 153 the commissioners of a burgh have power, "on a consideration of the special circumstances of the case," to sanction the laying out of a "new street" less than 36 feet wide, and that where they have done so their decision is binding on the Burgh Dean of Guild Court, and it is thereafter ultra vires of the latter to refuse a warrant for the erection of buildings on the street so sanctioned, on the ground that it is less than 36 feet wide. Burgh-Dean of Guild.-Observations on the Dean of Guild's jurisdiction in regard to streets. HUGH BARR AND JAMES BARR, joiners and builders in Paisley, Dean of Guild presented a petition in the Dean of Guild Court of that burgh, in Court, Paisley which they prayed the Court to line certain property of theirs at Wellmeadow in Paisley, and to grant warrant to erect thereon certain buildings, conform to plans produced. The petitioners averred;-(Cond. 2) That they proposed to erect certain buildings on their property facing Wellmeadow Street, "and an improved entrance to be formed from Wellmeadow to Walker Street, all as shewn in, and conform to, plans," &c., prepared by an architect, and produced. Objections were lodged for James Lee, surveyor and master of works of the burgh of Paisley, who averred;-(Stat. 2) "The said 'improved entrance' from Wellmeadow Street to Walker Street has not yet been formed or laid out as a new street within the meaning of the Burgh Police (Scotland) Act, 1892, sections 146 to 153 inclusive, but the proposed operations of the petitioners, for which they crave the warrant of the Court, will have the effect of forming or laying out a new street, or part thereof, within the meaning of said sections.' (Stat. 3) "The proposed operations of the petitioners having the effect of forming or laying out a new street within the * Decided Feb. 1, 1901. |