Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

George Hay of Balhouse
v.
Bane of Delny

Date: 10 February 1670

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In an action pursued at Balhouse's instance, as heir to his father, for payment of the sum of £1730, as part of £2501, against Bane of Delny, as heir to his father, who was cautioner for Monro of Foules, compearance was made for Foules, the principal, who proponed a defence of payment, of the whole bond; and, for verifying thereof, produced three discharges, one dated in August 1648, bearing the receipt of the whole byrun annualrents, and of £987 of principal; the second, bearing a receipt of 1000 merks, dated the 1st of December 1646; and a third, dated the 6th day of the said month, 1646, bearing, at the date thereof, and of before, to have received payment of the whole preceding annualrents, and of the sum of £1148; whereupon he inferred that the three discharges did amount to the whole sum in the bond.

It was replied for the pursuer, That the two first discharges were included in the last, which was granted within six days after the second discharge, and the sum therein contained did amount to the two sums contained in the two first discharges. Likeas, the defunct Mr Francis Hay, being a right honest and understanding man, would have granted a full discharge of the bond, or have given up the same; whereas, after the said last discharge, he did assign the sums now pursued for as a part of his daughter's tocher.

The Lords, notwithstanding, finding the matter unclear; in respect the last discharge, which was posterior to the first two, did bear a receipt of money at the date thereof; before answer, they did ordain the persons who did pay the sums contained in the two first discharges, and such others as knew what was done at that time, to be examined upon their knowledge if the last discharge was given in contemplation of money given at that time.

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