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Scottish Court of Session Decisions >>
Patrick Alexander, Younger of Crossclays, v Andrew Agnew of Scheughan. [1713] Mor 5041 (24 November 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor1205041-023.html Cite as:
[1713] Mor 5041
Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. VI.
General Discharge, if presumed to comprehend debts ab ante assigned.
Patrick Alexander, Younger of Crossclays, v. Andrew Agnew of Scheughan
Date: 24 November 1713 Case No. No 23.
The Lords found warrandice in the assignation to a bond incurred by the creditor granting a general discharge to the debtor, bearing receipt and payment of all bonds, &c. a year after delivery of the assignation, but before it was intimated.
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Mr Patrick Maxwell, in February 1702, having granted bond to Andrew Agnew of Scheughan for L. 318, as the price of 14 oxen bought from him for the use of Sir William Maxwell of Monrieth; this bond, Andrew Agnew, in March thereafter, assigned to Alexander Agnew his son, who transferred it to Patrick Alexander of Crossclays. Andrew Agnew, the original cedent, having, 5th February 1713, before intimation of the assignation to his son, granted a discharge to Sir William and Mr Patrick Maxwells bearing receipt of complete payment of all bonds, tickets, accompts, nolts prices, v or others preceding the date thereof, Patrick Alexander pursued Andrew Agnew to pay the debt upon this ground, that his granting the discharge aforesaid, was a contravention of the warrandice in the assignation to his son, the pursuer's author.
Answered for the defender; Such a general discharge cannot comprehend a debt assigned by him a twelvemonth before, though never intimated, to subject him to contravention of the warrandice in the assignation, Blair of Balgillo contra Denhead, No 63. p. 940; seeing, at the granting of the discharge, he was fully, denuded of the debt assigned quoad his part, and was not bound to know but the assignation was intimated; and, if the assignee sustain any prejudice through his so long neglect of intimation, sibi imputet, non enim est damnum quod quis sua culpa sentit.
The Lords found, that the general discharge by Scheughan, the defender, to Sir William and Mr Patrick Maxwells, bearing payment, did include the bond, and that therefore the warrandice was incurred.
