Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION IV.

Private Deed, how far probative.
Subject_3 SECT. IV.

Deed without witnesses, how far probative.

Andrew Bruce
v.
Alexander Buchan

1684. January.
Case No. No 501.

Discharges granted by a tutor to his pupil's tenants, holograph without witnesses, not sustained to instruct an article of compensation against the tutor's assignee.

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An assignee to a debt pursuing, the defender proponed compensation thus, that the cedent being tutor to the defender, intromitted with his rents before the assignation, which was offered to be proved scripto, by the cedent's discharges to the defender's tenants; and he hath not yet counted with the defender for these his intromissions.

Alleged for the pursuer; That the discharges produced are null, as wanting writer's name and witnesses, and not being holograph.

Answered for the defender; That discharges to tenants for their rents are sustained per consuetudinem patriœ, without the ordinary solemnity of other writs.

Replied; That such discharges to tenants are only sustained against their masters, and not against third parties.

The Lords would not sustain the said discharges against the assignee, unless, in fortification thereof, the defender could prove the delivery of the rent to the cedent before intimation. Here the tutor was not discharged; and it was not debated, if “ought and should intromit” in the tutor could be obtruded against the assignee; which seems not unreasonable; and being competent against the cedent's tutor before assignation, the minor could not be prejudged of that benefit by the tutor's assigning.

Fol. Dic. v. 2. p. 259. Harcarse, (Compensation.) No 259. p. 61.