Sarah Cockburn and Mr Patrick Gillespie v. John Stewart and the Tenants of Linton
Date: 18 February 1669 Case No. No 61.
The liberation founded upon an apocha trium annorum is but presumptive, admitting contrary probation.
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Sarah Cockburn being infeft in liferent in an annualrent of 1200 merks yearly, out of the barony of Linton, she, and Mr Patrick Gillespie her husband, insisting for her annualrent, in anno 1657, obtained payment from John Stewart, and gave him a power to uplift the same from the tenants, and delivered to him the letters of poinding, to be put in execution. Thereafter, Mr Patrick obtained a second decreet against some wadsetters, whose rights were posterior to the annualrent, for the years 1658, 1659, and 1660; and, upon payment of these three years, did acknowledge payment made of the said three years annualrent, and all bygones whereunto he had right. Mr Patrick having granted John Stewart a bond to warrant him anent the year 1657, and that he had given no discharges that might exclude him; the tenants of Linton suspend the charge for the year 1657, upon that reason, that Mr Patrick had discharged the annualrent for the years 1658, 1659, 1660, and all preceding whereunto he had right. Whereupon John Stewart charged Mr Patrick upon his bond of warrandice; who suspended upon this reason, that the discharge could not exclude John Stewart, albeit it bare all precedings to which he had right; because, when he granted the discharge, he had no right to the year 1657, which he had received from John Stewart, and given him warrant, and his letters to poind for Mr John Stewart's own use. It was answered, That unless that order had been intimated, the right remained with Mr Patrick; and so his general discharge extended thereto. It was answered, That albeit intimation was necessary to establish the right in the assignee's person, yet Mr Patrick's warrant was sufficient to exclude him; at least, the matter of his right being thereby dubious, the general discharge cannot be effectual against him, if, by the oaths of the wadsetters that got the discharge, it appeared that they paid him not the year 1657; and some of their oaths being taken, he who paid the money for himself and the rest deponed, that the year 1657 was not paid, and that there was no decreet against the wadsetters for 1657, but only against the moveable tenants, to whom the discharge containing the said general clause was not granted.
The Lords found, That in respect of the oath, the general discharge extended not to the year 1657, and therefore suspended the letters against the said Mr Patrick upon his bond of warrandice, and found the letters orderly proceeded at John Stewart's instance against the moveable tenants of Linton, for the year 1657, The tenants further alleged, That since the year 1660 they did produce three consecutive discharges from Mr Patrick, which import a liberation of all years preceding, specially seeing Mr Patrick was never denuded of the year 1657, nor intimation made. It was answered, That such a liberation is but presumptive præsumptione juris, and admits contrary probation, and is sufficiently taken away by the oath of the party, acknowledging that year unpaid, and the warrant given to John Stewart to lift it for his own use, before these discharges.
The Lords repelled also this defence upon the three discharges, in respect of the reply.
