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Scottish Court of Session Decisions >>
John Baillie v M'Intosh of Aberarder. [1753] Mor 2680 (10 August 1753)
URL: http://www.bailii.org/scot/cases/ScotCS/1753/Mor0702680-139.html Cite as:
[1753] Mor 2680
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XVI.
Effect relative to Prescribed Debts.
John Baillie v. M'Intosh of Aberarder
Date: 10 August 1753 Case No. No 139.
Tack-duties extinguished by the quinquennial prescription upon act 1669, not proponable as a ground of compensation.
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In the year 1730, M'Intosh of Aberarder accepted a bill for 500 merks to Duncan M'Intosh. In the year 1731, Duncan took a nine years tack from Aberarder of certain lands, at a tack-duty of 200 merks yearly. Before the close of the tack, Duncan turned a notour bankrupt, and fled the country. Returning several years after, he conveyed the sum in the above mentioned bill to one of his creditors; who, in a process against Aberarder's son and heir, insisted for payment. The defence was compensation upon the tack-duties, which had never been cleared. Answered, The tack-duties are prescribed by the act 1669, it being more than five years since the tacksman's removal. Replied, The act only bars an action for payment after the five years, but not an exception as in the present case, where payment is not demanded of the rent, but only in extinction of a separate obligation by compensation. Duplied, The genuine effect of the statute is to presume payment of rents which are not claimed for five years, till the contrary be proved by writ or oath. It may be be true that Aberarder would put nothing in his pocket by claiming payment of the rents, when he was owing to the tacksman an equivalent sum by bill. But this circumstance, whatever effect it may have with regard to presumption founded upon circumstances, ought not to be regarded against a statutory presumption, with which judges can take no liberty.
The Lords were unanimous, that compensation is not relevant in this case, more than where the compensing debt is sopite by the long prescription.
