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 £5, 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 >>
Prestongrange v Richard Waird. [1678] Mor 5024 (13 July 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor1205024-003.html Cite as:
[1678] Mor 5024
Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. I.
General clauses in Discharges presumed to comprehend Personal Debts.
Prestongrange v. Richard Waird
Date: 13 July 1678 Case No. No 3.
A general discharge granted to a vassal, though referring to a special account, was presumed to include the feu-duties for which he was personally liable, tho' not mentioned in the account; but not the feu-duties of years before the vassal's right, for which no action lay, but a poinding of the ground.
Click here to view a pdf copy of this documet : PDF Copy
Prestongrange pursues Richard Waird his vassal for the feu-duty of Dolphington, for thirty-nine years preceding the summons; the defender alleged absolvitor from 1656, and preceding, because he produces a general discharge by the pursuer to Bryssie, then heritor, of all debts, sums of money, and others whatsomever, that he could lay to Bryssie's charge, for any cause or occasion preceding any manner of way. The pursuer answered, That this general discharge had a special account of the same date, and could be extended no further than to writs of that nature, which are contained in the account, and at most to personal debts, but not to feu-duties, which are debita realia. Likeas Bryssie, by a declaration produced, declares, ‘That the feu-duties were neither paid nor considered in that discharge,’ but whatever might be pretended for the years Bryssie was heritor, because he might have been personally overtaken and pursued for these years, yet as to former years which were in his author's time, though the ground might have been poinded therefor, yet it could not be said in any way that Bryssie was debtor therein. It was replied, That the petty account produced is only about an hundred pounds Scots, whereas, in this general discharge, there is an exception of an hundred pounds Sterling resting, and this discharge is only general, and hath no particular by which the generality might be limited; and as to Bryssie's declaration, it was after he was denuded, when neither his writ nor his oath could prejudge a singular successor.
The Lords sustained the general discharge for the years that Bryssie was heritor, and so debtor, but not for the years of his authors, which were only debita fundi.
Fol. Dic. v. 1. p. 340. Stair, v. 2. p. 632.*** Fountainhall mentions the same case:
The Lords found, that a general discharge did not extend to cut off the payment of bygone feu-duties owing to a superior as non cogitatum.
