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Forbes v Gordon. [1695] Mor 5025 (14 November 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Mor1205025-004.html Cite as:
[1695] Mor 5025
Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. I.
General clauses in Discharges presumed to comprehend Personal Debts.
Forbes v. Gordon
Date: 14 November 1695 Case No. No 4.
An old bond being pursued on by an assignee, the defender produced two general discharges, mentioning rents of lands, and subjoining a general clause of all accounts, &c. or any thing else between the parties, with the exception of a sum smaller than that pursued for. The Lords found these two discharges extended to the bond, though they did not mention it.
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Arbruchel reported Janet Forbes relict of Patrick Gordon, against Charles Gordon of Blelack, for payment of 2000 merks contained in his father's bond to his brother Patrick, whereto she was constituted assignee by her said husband. The defences were, 1mo, That the bond being in 1656, there were two general discharges past betwixt them subsequent thereto, the one in 1661, the other in 1663; which, though they at first mentioned only farms and rents of lands, yet had also a general clause of all counts and reckonings, borrowings and lendings, or any thing else betwixt them, with an exception of 350 merks resting to Patrick, the discharger; and he who was so cautious as to insert a reservation of that smaller debt, would much more have secured himself by mentioning the greater sum of 2000 merks, if it had been resting, so that exceptio firmat regulam in casibus non exeeptis. And it being objected, That these discharges were intended, no farther but alleuarly to clear his mail and duty, as tenant, and that they were holograph, and so did not prove their date, it was answered, That such discharges, after count and reckoning, needed no witnesses, and there was geminatio actuum here; and the Lords had found so, 17th December 1680, between James Stuart and Agnew of Sheuchan, voce Proof; and the, defender's father was dead before the assignation now pursued on. The 2d defence was on compensation, that Blelack was cautioner for the said Patrick, the cedent, in several debts, and had either paid, or was distressed. Answered, That did not meet, the pursuer, who was assignee, unless the distress and payment had preceded her intimation. Replied, It was sufficient if the obligement of relief was prior to her assignation, though it was purified after, as had been oft found, viz. 11th Jan. 1627, Paton, No 50. p. 2601.; 23d Dec. 1635, Keith, voce Personal and Real; 16th March 1639, Forsyth, No 116. p. 2650.; and lately, in 1694. Ogilvie against Scot, voce Homologation.——The Lords did not proceed give answer to this second defence, which at least would have founded a jus rebentionis till he was relieved of his cautionries; because they were clear to determine the first point of the two general discharges, which they found very ample and comprehensive, and to extend even to this bond now pursued for; and therefore found the defence on the discharges relevant and proven; and assoilzied.
Fol. Dic. v. 1. p. 341. Fountainhall, v. 1. p. 677.
