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Scottish Court of Session Decisions >>
Alexander Gray v William Reid, Tenant in Wariston. [1699] Mor 11399 (8 December 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Mor2711399-063.html Cite as:
[1699] Mor 11399
Alexander Gray v. William Reid, Tenant in Wariston
Date: 8 December 1699 Case No. No 63.
Three consecutive discharges, two by the father, and one by the son, not equivalent to a discharge of all precedings, unless the son knew of the father's discharges.
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William Reid and his father having possessed the lands of Wariston by a 19 years tack from the year 1680, Alexander Gray, as having right to the tack-duty, pursues for payment.
The defender alleged, That he could not be liable for rents preceding the 1687, inclusive; because he produced three consecutive discharges, one for the 1684; another for the 1685, granted by Alexander Cruikshanks, the pursuer's author, and a third for the 1686 and 1687, granted by David Cruikshanks and his tutor, who was the son and representative of the said Alexander and the pursuer's cedent.
It was answered; Three consecutive discharges granted by the same person, without reservation of bygones, do infer a presumption that all precedings were paid; and that presumption hath been sustained, though the consecutive discharges were not all granted to the said person, but two to the father, and one to the son; but they were never sustained when granted by different persons; nor is there reason for it; because the granter of three consecutive discharges knew of the two former when he granted the last; whereas, a son granting a discharge of a particular year, knows that the granting of a single discharge does not prejudge him as to bygones, and may be ignorant what his father had discharged.
It was replied; The heir is eadem persona cum defuncto, and therefore the discharges must be conjoined. 2do, It appears, by the son's discharge, that he perfectly knew of his father's; because the discharge enumerates several particular payments made to his father, and some to himself or his tutor, making up two years rent discharged; so that, having seen these particular receipts, he must also be presumed to have seen these two former discharges.
It was duplied; The heir is eadem persona as to the representation; but this presumption, arising from the granting of three discharges, that the granter knew precedings paid, depends upon the particular knowledge of the granter; and the son may be ignorant of what was known to the father. 2do, The son's discharge enumerating the father's receipts, proves that the son knew of the receipts enumerated; but proves not his knowledge of the two former discharges; which, if it were instructed, would certainly be relevant.
“The Lords did not incline to conjoin the son's discharges with the father's, to infer the presumption that precedings were paid, unless the son's knowledge of the father's discharges were qualified; and, before answer, ordained the son and his late tutor to be examined, if they saw or knew of the said former discharges.”
