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.
Jolly v. Laird of Lamington
Date: 20 February 1685 Case No. No 31.
The taking a total discharge does not infer homologation. A partial discharge infers homologation as to the remainder.
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William Baillie of Lamington having revoked and raised reduction debito tempore, of a bond granted by him in minority, the process chanced to be lost, and being pursued post annos for payment, he procured a discharge from the creditor's assignee, which discharge being questioned by the cedent's creditor, as granted by a person whose assignation was in trust for the cedent's behoof, Lamington recurred to his revocation and reduction upon minority and lesion, and offered to prove the tenor thereof.
Against which it was alleged; That Lamington, who had homologated the bond not only after his minority, but even after the said pretended reduction, could not have the benefit thereof now, suppose the tenor were made up.
Answered for Lamington; That the taking a total discharge, either upon discharge or voluntary payment, ad majorem securitatem, cannot import homologation; though partial payments and discharges would infer homologation as to the remainder.
The Lords sustained the answer for Lamington, and allowed the tenor to be proven incidenter.
