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M'Nacht v M'Ghie. [1609] Mor 3546 (23 February 1609)
URL: http://www.bailii.org/scot/cases/ScotCS/1609/Mor0903546-003.html Cite as:
[1609] Mor 3546
Discharge of one Correus how far it operates in favour of others.
M'Nacht v. M'Ghie
Date: 23 February 1609 Case No. No 3.
The pursuer of a spulzie having discharged one of the defenders for his own part, it was found, that this discharge did not cut off the action against the other defenders.
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Ane pure man callit M'Nacht, persewit M'Ghie, and certaine uthers, for spulzie of his goods. They exceptit peremptorilie that they sould be assoilziet, becaus the persewar had transacted with- ane of the committars of the fact be writ, and received satisfaction and dischargit him the spulzie, and sua in effect has past fra the spulzie, and having tane satisfaction from ane could persew nane of the rest. It was ansrit be the persewar, that the transaction could only liberate the man that was dischairgit for his own pairt, and na farder; and as the spulzie wald devyde amongst them according as they were proven to be committars pro ratis portionibus, sua wald it be devydit in the transaction. The defendar producit ane practic betwixt Kinfawns and Barclay of Strowie and Lindsay, No 1. p. 3555. be the whilk, in ane spulzie of evidents persewit be Kinfawns against Thaime, they having exceptit that he had transactit with the Lord Ruthven, the Laird of Bathyok, and uthers whom he had persewit; and that in ane general submission betwixt Kinfawns and the said Lord, &c. ilk ane of thaime had dischairgit uthers of all things they could claime of uther, the Lords fand that exception relevant, and assoilziet. This was done in anno 1554,——It was remembrit amongst the Lords, that, in an action of spulzie persewit be James Douglas in Leith against Wallaces, and the Laird of Bogie, the transaction betwixt the persewar and Bogie relievit the Wallaces. In this cause the Lords fand, that gif the persewar had transactit generallie, and given an absolute dischairge to any of the committars, granting him satisfied of the hail guids spulzied, it wald relieve the hail defendars, but gif it wer onlie ane particular dischairge of that man's pairt, it sould not liberate the rest of the defendars of thair parts.
