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Alexander Gray v William Reid. [1669] 4 Brn 466 (8 December 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Brn040466-0904.html Cite as:
[1669] 4 Brn 466
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Alexander Gray v. William Reid
Date: 8 December 1669
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Alexander: Gray pursues William, Reid, late tenant in Wariston, for payment of his rent, crop 1680.
Alleged,—Absolvitor; because I have three consecutive discharges for three subsequent years after that acclaimed.; which presumes payment of all precedings,—they not being accepted in any of these reiterated discharges.
Answered,—Apochœ trium annorum is a good defence by the Roman law, and ours; but then they must be all granted by one person, and be total as to the full rent; whereas, here, the first two years are discharged by Cruikshanks, the father, and the third by his son, with consent of his curator; likeas, one of of them is only quoad the money and victual-rent, but not of the kains, customs, and straw.
Replied,—That pater et filius being una et eadem persona, especially where he is heir, their discharges ought to be conjoined, to the effect to import liberation of preceding years; and Dury observes thàt the Lords sustained three discharges granted by a minister, whereof two were to the father, and the third was to the son: And, as to the omitting to mention the small casualties in the discharge, that was nothing; for they use commonly to be paid without any receipt in writ.
The Lords considered that the three consecutive discharges, hitherto sustained to infer liberation for precedings, were always where granted by one and the same person; for law presumes he has got payment of the preceding years, else he would not have forgot to [have] excepted in one of these three discharges; and that it is not a like case to be granted by a father and a son, as to be granted by one person to a father, and then to his son; which is the species facti in Dury, 27th February 1631, Williamson contra L. of Balgillo; seeing the son might be ignorant what his father had received or discharged. Therefore, to supply that, it was here offered to be proven by Cruickshanks's son's oath, and his curator's, that they knew that his father had discharged the two preceding years, and that his discharges were shown to them. Upon which allegeance the Lords ordained them to depone before answer, the tenant's case being favourable after so long a time.
