Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.

Sir Robert Douglas
v.
Sir J Scott.

1737, June 17.
Case No. No. 12.

Click here to view a pdf copy of this documet : PDF Copy

The Lords sustained the interruption of the prescription of the L.100 bond by the holograph receipt of annualrents, and found that receipt although holograph probative against Sir Robert Douglas the principal debtor as well as against the creditor who granted it and the cautioner who produced it. I doubted much of this interlocutor, for the thing appeared very suspicious; but there was no division on the Bench, and I being in the chair did not put it to the vote. 2dly, They sustained the defence against the 2500 merks bond assigned to Sir Patrick Scott in 1679, that Sir John could not sue upon it ante redditas rationes, notwithstanding of the prescription of the tutor-accounte. We did not think that the decision in the case of Mauldsley,* that compensation cannot be pleaded upon a prescribed debt, had any connection with this case, which is not compensation but payment, since the law presumes that the debt was paid re pupillu Lord Arniston was also of this opinion, but he further differed from that decision, though it were a proper compensation, and said he would always doubt of it, till it were confirmed by a series of decisions.

Dict. No. 139. p. 2677.