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Scottish Court of Session Decisions >>
Philip v - [1696] Mor 15806 (11 November 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Mor3615806-044.html Cite as:
[1696] Mor 15806
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In the case of one Philip, the Lords refused to sustain a compensation founded in this manner : The discharge produced bears all counts and reckonings and debts betwixt them to be discharged, except a bond containing the sum of 50 merks, which is declared not to be comprehended under the generality fore-said; whereupon allowance was craved of that 50 merks. The Lords found, seeing it related to a bond which was not produced, this exception could neither constitute nor instruct the debt. But if such a clause related to a debt, without mentioning bond or ticket by which it was constituted, it might be more dubious; for in that case the rule, non creditur referenti nisi constet de relato, could not take place; and if there be nothing to instruct the debt but an exception in a discharge, the abstracting it frustrates the other of his mean of probation, which being an evident in another’s hands, and liable to many inconveniencies, no man will rely upon it, without having some document and instruction of the debt in his own hands.
