A bill of an old date, bearing to be for rent of land, was found to be taken away by three consecutive discharges of rent on a posterior tack, the last of which discharged all precedings.
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George Home, town-clerk of Edinbugh, having verbally set to George Anderson part of the lands of Dreghorn, for one year, from Martinmas 1727, at the rent of L. 300 Scots, afterwards, by a written tack, set him the whole lands for 1200 merks, to commence at Martinmas 1728; and, of the same date with the tack, viz. 22d November 1727, drew on him the following bill, which he accepted, “Pay to me or order L. 300 Scots, at the terms following, viz. L.150 as the just and equal half thereof, at the term of Candlemas 1729, and the like sum in payment of the whole at Lammas thereafter, which, when paid, these presents shall be to you a sufficient discharge of a full year's rent for your possession of the lands of Dreghorn, set by me to you, and that for crop 1728, and oblige your friend,” &c.
After Mr Home's death, a process was brought on this bill by his two daughters, in which the tenant pleaded on the age thereof; and that he produced three consecutive discharges of the rent of the lands of Dreghorn, and that it appeared by a discharge, 18th November 1730, that Mr Home then received payment of L.163:16:4 Scots of rent not due till Candlemas 1731, including 100 merks allowed for repairing the sit-house at Dreghorn.
The Lord Ordinary, 10th July 1744, “In respect the bill pursued on was granted for rents then to become due, and that there were three consecutive discharges produced, granted by the deceased George Home to the defender, the last whereof discharged all proceedings, therefore sustained the defence; and assoilzied and decerned, especially considering the long taciturnity on the bill, and that no demand was made upon it during the father's life, though surviving the date of the bill several years.” And, 22d November 1744, he adhered.
Pleaded in a reclaiming bill, That the consecutive discharges being for rents due on another tack, did not apply, and that Mr Home being obliged to repair the sit-house, the tenant was entitled to deduct the 100 merks he bestowed thereon out of the first and readiest of his rent.
The Lords adhered.
Pet. Lockhart.
Fol. Dic. v. 4. p. 120. D. Falconer, v. 1. p 16.
