Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INDEFINITE PAYMENT.
Subject_3 The creditor, in an account, of which a part was prescribed, was found entitled to impute partial payments, in satisfaction of articles of his account, three years preceding the date of such payment; though these articles were part of those which had fallen under prescription.

James Good
v.
Christian Smith

Date: 26 February 1779

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[Faculty Collection, VIII. 158; Dict. 6816.]

Monboddo. The statute 1579 is a most beneficial statute, and the Court has done well in applying it to the case of tradesmen's accounts; but I have a doubt as to its application with respect to the partial payments in controversy. The question is as to indefinite payments; they must be applied to the prior debt, that is, within the three years. The application, by our law, goes upon the presumption of what would have been the application, that is, to the eldest debt, and of which the prescription is nearest run.

Braxfield. If it is admitted that the account was actually due at some prior period to the three years, the indefinite payment falls to be applied to the elder debt; but that is not the case. Yet still I have doubts: it is pleaded, that the payments made were of a former account. Now, suppose this were the case of a house possessed from year to year for a long time,—that payments have been made indefinitely:—I bring an action for three years' rent. Says the tenant, Here are receipts. The just answer would be, You was tenant before, and the indefinite payments must go to the payment of rents of former years.

President. By the short prescriptions, the debt is not prescribed. It is only the mode of proving that is limited. I must consider things in the state that they were in at the time.

Justice-Clerk. Candidly gave up his opinion.

On the 29th June 1779, “The Lords found that the payments made within the three last before citation, must be imputed to the eldest of the debts not prescribed at the dates of those payments;” altering the interlocutor of the Lord Justice-Clerk.

Act. J. Dickson. Alt. J. M'Laurin.