BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Lawson v L. Ardkinlass. [1636] Mor 5023 (24 February 1636)
URL: http://www.bailii.org/scot/cases/ScotCS/1636/Mor1205023-002.html Cite as:
[1636] Mor 5023
Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. I.
General clauses in Discharges presumed to comprehend Personal Debts.
Lawson v. L Ardkinlass.
Date: 24 February 1636 Case No. No 2.
A general clause, discharging all action or payment of any debt or sum of money resting by contract, bond, decreet, or otherwise, though subjoined to a discharge of small sums mentioned nominatim, will be sufficient to defend against any process on a prior obligation, though for a larger sum than those mentioned in the discharge.
Click here to view a pdf copy of this documet : PDF Copy
One Lawson, as executor to his goodsire, pursuing the Laird of Ardkinlass for payment of 2000 merks, contained in a bond, made by the defender's father thereon, who producing a discharge granted by the donatar to the pursuer's goodsire's escheat, who was the creditor foresaid of this sum, without consent of this same pursuer, and subscribed by him, bearing, that they had discharged this same defender of this sum of 300 merks, and other 360 merks contained in two bonds, wherein the pursuer's godsire was cautioner for the Laird of Ardkinlass, and which he had paid as cautioner for him, in the which discharge the said donatar, and the pursuer, besides the discharge of these two special sums, by a general clause therein contained of this under-written tenor, had also discharged the defender of all action they had competent against him, for payment of any debts or sums of money resting to the pursuer's goodsire, by the defender's father, by contract, decreet, bond, or otherwise whatsoever, or paid by him for the said Laird of Ardkinlass, at any time preceding their deceases; in respect of the which discharge, bearing the said general clause, granted by this pursuer long after the date of this bond, now pursued for, the defender alleged absolvitor, and the pursuer replying, that the general clause contained in this discharge, which is subjoined, but accessory to the two particulars expressly discharged, cannot extend to this sum now acclaimed, seeing the same is far greater than the sums particularly discharged; and it is not probable, that it was then intended, that this sum of 2000 merks should have been discharged under the general clause, there being two less sums mentioned specifice, and this great er sum never being mentioned, so that the discharge cannot be esteemed to meet this, but this must be esteemed as non cogitatum; for if it had been treated on, or thought it should meet the same, it could not have been conceived to discharge 600 merks in two bonds, and to have omitted a far greater sum; this reply was not respected, and the exception was found relevant, and proven; for the general clause foresaid was found ought to extend to this greater sum, albeit the special sums discharged were less.
Act. Hart.Alt. ——
Fol. Dic. v. 1. p. 340. Durie, p 797.
