Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION. VIII.

Quinquennial Prescription.
Subject_3 SECT. III.

Stipends.

Baird
v.
The Parishioners of Fyvie

Date: 23 July 1678
Case No. No 254.

A stipend not being pursued for in five years, can be proved only by writ or oath of the defender.

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James Baird, as donatar to the escheat of the Minister of Fyvie, pursues the Parishioners for bygone stipends, who alleged, Absolvitor, because by the late act of Parliament, stipends prescribe if not pursued within five years after they are due. It was answered, That the act is not a simple prescription, but quoad modum probandi, that they shall only be proved by writ, or oath of party: Ita est, there is writ here, viz. a decreet of locality. It was replied, That the act requires probation by writ, under the hand of the debtor, acknowledging the stipend to be resting, which is not in this case.

The Lords sustained the defence, seeing there was no writ under the Parishioners' hands acknowledging these stipends resting, or that they were proved by their oaths resting, albeit several years had run before the pursuer had got the gift of escheat, which he alleged should not be counted, the right being then the King's.

Fol. Dic. v. 2. p. 118. Stair, v. 2. p. 639.