Scottish Court of Session Decisions

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

William Hamilton of Wishaw
v.
Andrew Lundie

Date: 17 December 1673

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In a declarator, pursued by Hamilton of Wishaw, against Andrew Lundie, to hear and see him found liable for six or seven years' rents of the lands of Fordell, upon a discharge subscribed by him to the tenants, bearing a receipt of two years' duty; and therefore that the said Lundie, as tutor, did discharge the said tenants thereof, and of all preceding years since the death of Sir John Brown, with absolute warrandice: Likeas, it being referred to his oath what years he intromitted with, he did depone that all intromissions he had, he did profitably expend the same for the use of his pupil; which was an acknowledgment of his intromission with the whole years libelled.

It was answered, That the general discharge of all bygones, being subjoined to the particular receipt of two years only, could not infer actual intromission of all these years; and the most it could import was to secure the tenants upon the warrandice, in case they should be troubled. And, as to the oath and quality subjoined, it did not bear intromission with the whole years libelled.

The Lords did find, That the discharge did only import the receipt of two years' duty, and that the oath and deposition, being qualified as said is, did not import actual intromission of the whole years libelled; and, therefore, that the pursuer ought to prove otherwise, the defender's actual intromission with the duties of all years, preceding the two years contained in the discharge.

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