Consent not presumed, when the Deed can be ascribed to another Cause.
George Deans v. Margaret Crichton and Spouse
Date: 20 June 1673 Case No. No 71.
A minor having subscribed a bond, and suspended after majority, upon a discharge granted to one who was conjunct cautioner with him, the Lords found this did not infer homologation against him to make him pay the remainder.
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In a reduction and a suspension raised at the instance of the said George, of a bond granted by him to William Lowrie, and the said Margaret, then his spouse, upon a reason of minority and lesion, he having subscribed the same when he was minor et in familia paterna, it was answered, That he had homologated the same after majority, in so far as, being charged upon the bond, he had suspended, upon payment of a part of the bond, for which he produced a discharge. It was replied, That the payment made by the pursuer was but by one of the cautioners, who was only bound with him, and his making use thereof could be no homologation to make him liable for the rest, seeing in law a debtor may insist upon diverse reasons, et petere contraria; and, notwithstanding that payment made by a conjunct cautioner might be alleged upon to free him pro tanto, yet that did not hinder him to reduce the obligement upon minority and lesion.— The Lords did sustain the reason, notwithstanding of the answer, and found, that what deeds of homologation are alleged to constitute a debtor, they ought directly to relate to the deeds done in minority, and necessarily to imply a confirmation thereof, which was not in this case. Upon the 2d July thereafter, it being alleged, That it was offered to be proved, that the time of the subscribing the bond he was 20 years of age, married, et extra familiam, and in the place of a public clerk, and he never revoked intra annos utiles, nor ten years thereafter, the Lords did find it relevant to assoilzie from the reduction.
Fol. Dic. v. 1. p. 381. Gosford, MS. No 596. p. 341.
