Scottish Court of Session Decisions

Subject_1 GENERAL DISCHARGES and RENUNCIATIONS.
Subject_2 SECT. I.

General clauses in Discharges presumed to comprehend Personal Debts.

Sir David Carnegie of Pittarrow
v.
The Earl of Southesk

Date: 15 January 1696
Case No. No 5.

Against an action for payment of a considerable sum of debasements, the defence was laid on a decree-arbitral, ordaining the parties to discharge each other of all accounts, &c. Answered, the decree proceeded on special claims; and it was offered to be proved that this article was neither actum nor tractatum at the time. The Lords sustained the defence.

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The Lords advised the debate between Sir David Carnegie of Pittarrow and the Earl of Southesk, if Pittarrow's compensation was to be sustained on the bond to pay the third part of the expenses which he should depurse in reducing the decreet of Parliament, evicting from him the lands of Craig; and whereof he gave in a general account of 10,000 merks expended by his father, and L. 17,000 by himself. Alleged, Absolvitor; because both parties having entered into a submission of all their claims to Sir George Lockhart and Sir John Cunningham in 1681, whereon followed a decreet-arbitral, ordaining them to discharge one another of all counts and reckonings; and this behoved also to be included, especially seeing there was nothing excepted but their reliefs of cautionry. Answered, That decreet proceeded on special claims, whereof this article of the expense of the process of Craig was none; and if Harry Douglas, Sir G. Lockhart's servant and others were examined, it would appear this debt was neither actum nor tractatwn, nor under consideration at the time.——The Lords thought it dangerous to loose decreets-arbitral, and general discharges, on such expiscations, and that such eminent lawyers would not have inserted a general clause to operate nothing; therefore they found it sufficient to cut off all the depursements prior to the said decreet-arbitral, but that it did not strike off the bond itself; so the expenses wared out by Pittarrow on that plea since 1681 were yet entire, and might be claimed. The next question occurred, how his account should be proven, and if he was bound to give in a special condescendence of his expenses? Pittarrow obtruded the obligement, that his honest word and declaration was to be taken without any farther instruction or probation. Southesk urged, That did not impede why he should not be more special; and it was not enough to give in an exorbitant article of L. 17,000 in gross, without some more satisfying account. The Lords ordained him to give in a more particular account, and to be as special in it as he could. Some moved he should in supplement depone anent the verity of his expenses; but it was thought the clause in the obligement exonered him from any further verification than his subscribed declaration; though, if the Lords had any jealousy, they might also require his oath ex officio, especially if any of it was clandestinely done, and conveyed for corrupt and unavowed ends.

Fol. Dic. v. 1. p. 341. Fountainhall, v. 1. p. 700.