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Scottish Court of Session Decisions >>
Boil of Kelburn v Mr. John Wilkie. [1669] Mor 16590 (26 January 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor3816590-045.html Cite as:
[1669] Mor 16590
Warrandice in whatever terms conceived, found to extend no further than the sums paid out, and the expenses of the party.
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Boil of Kelburn having gotten a commission from the Presbytery of Irvine, to uplift some vacant stipends, he gave bond to pay to them £850 therefore; and being thereafter charged by Mr. John Wilkie, collector of the vacant stipends, Kelburn paid him 600 merks; whereupon Mr. John gave Kelburn hisd ischarge of these vacant stipends, and of his bond to the Presbytery, with absolute warrandice of the discharge, especially bearing to relieve and free him of the bond to the Presbytery. Thereafter Kelburn was decerned to make payment of that bond. After a long debate Mr. John Wilkie compeared; whereupon Kelburn charged Mr. John to pay him the £850, with annual-rent and expenses, upon the clause of warrandice. Mr. John suspends on these reasons, First, That he was circumvened, never having read the discharge; 2dly, That clauses of warrandice, (however conceived) are never extended further by the Lords, than to the skaith and damage of the party warranted, which, if it be componed for never so little, the warrandice reacheth no further than the composition, and it can never be extended ad captandum lucrum ex alterius damno; so Kelburn having gotten stipend worth £850, he cannot seek the same back again, but only the £400 he paid out. It was answered, That albeit general clauses of warrandice be so interpreted, yet this is an express and special paction, to relieve Kelburn of this bond, which, if it had been per se, would have been valid, although without an onerous cause, and cannot be less valid, having so much of an onerous cause.
The Lords did take no notice of the reason of circumvention, Mr. John being known to be a provident person, but restricted the warrandice to the £400 received by the suspender, and annual-rents thereof, and the expenses of plea against the Presbytery; and found it nowise alike, as if it had been a paction apart, but being a specialty in a clause of warrandice, it was to be interpreted accordingly, pro damno et interesse only.
