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Scottish Court of Session Decisions >>
Dalgarno v The Laird of Tolquhoun. [1680] Mor 5030 (19 November 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor1205030-010.html Cite as:
[1680] Mor 5030
Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. II.
Whether General Discharges and Renunciations comprehend Heritable Debts.
Dalgarno v. The Laird of Tolquhoun
Date: 19 November 1680 Case No. No 10.
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The Lords found a general discharge containing an exception of one particular, which confirms the generality in casibus non exceptis, could not extend to take away an obligement to procure a right to a comprising, because general discharges are never extended to heritable rights.
Fol. Dic. v. 1. p. 341. Fountainhall, MS.*** Stair reports the same case:
Beatrix Dalgarno pursues the Laird of Tolquhoun for the annualrent of 1000 merks, which he was obliged to pay her yearly for her aliment, by a contract betwixt him and William Johnston. Tolquhoun suspends upon this reason, that his obligement is in a mutual contract betwixt him and the charger's husband, whereby he is obliged “to dispone the lands of Balhosse, and to procure right to an apprising thereof, led at the instance of John Johnston,” which being the mutual cause, and not performed, this obligement is causa data non secuta. The charger answered, That upon this minute Tolquhoun entered in possession, and therefore cannot refuse the annualrent of the 1000 merks, which was the price, for in so far the mutual cause is performed. 2do, There is produced a general discharge by Tolquhoun, in which he acknowledges “there were several transactions betwixt him and William Johnston, and that he had been his factor, and had intromitted with his girnels and farms, whereof he was satisfied, and discharges all debts, sums of money, bonds, obligations, clags, claims, and contracts, for whatsomever cause, with an exception of a particular obligement;” which therefore being a general discharge, must exoner Johnston the charger's husband. It was replied, That general discharges are never extended to particulars of greater value in specie than those exprest; and, therefore, bonds, debts, and obligations being exprest, it could never be extended to the warrandice of heritable rights, nor to the obligements to dispone heritable rights, such as the obligements in this contract; and the exception is only of bonds for sums of money, which is a different species from dispositions of lands, and of greater importance; and though this discharge would be sufficient to take away a bond of money of the greatest sum, being in specie exprest, yet it cannot extend to an obligement to dispone lands, or any obligement of warrandice, though the particular interest were of less moment, yet the species of land or warrandice are of greater import.
The Lords found, that this general discharge did not extend to this obligement, ‘to dispone lands, or to procure dispositions thereof;’ but found Tolquhoun liable to pay annualrent so long as he was not legally put from his possession.
