Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Sir George M'Kenzie v. John Fairholm
Date: 14 February 1668 Case No. No 23.
Homologation of a bond subscribed by a minor as cautioner for his father, found not inferred, altho' the son, after majority, had taken discharges for annualrent not paid by himself.
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Sir George M'Kenzie insisted in the reduction of the bond subscribed by him, as cautioner for his father in his minority. It was alleged for John Fairholm, that he could not reduce upon minority, because he had homologated the bonds after his majority, in so far as he had accepted discharges of the annual rent, bearing deduction of the bond by his father as principal, and him as cautioner, and discharging them both; which discharges Sir George himself did receive from John Fairholm, and paid the money. Sir George answered, That the discharges do not bear that he paid the money, but bear that the same was paid by the principal debtor; and his receiving of a discharge, not having paid, cannot import his homologation or acknowledgment of the bond; for, to prevent question and trouble, one may take discharge of what he denies to be due, and the bond being then standing unreduced, he may well accept a discharge, not knowing the event of the relevancy, or probation of his minority.
The Lords repelled the defence, and found that the discharges imported no homologation, unless it were instructed that Sir George, out of his own money paid the annualrent.
