Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Bayne v. James Scot's Heirs
1696 and 1698.
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1696. January l6.—Halchaig reported James Bayne, the King's masterwright, against the Heirs of James Scot, writer to the signet, for payment of a sum contained in a contract for rebuilding Hugh Boyd's burnt land. Alleged, The said contract is discharged. Objected,—That the discharge is vitiated, and some words delete which excepted that contract.
The Lords, before answer, ordained the writer and witnesses of the discharge to be examined if the same was only in relation to the top-storey, as also the commoners and trysters betwixt them since, if they did not hear James Scot acknowledge that as a debt even subsequent to the discharge.
Vol. I. Page 701.
1698. November 9.—The Lords advised the process betwixt James Bayne and the Children of James Scot, writer to the signet, mentioned supra, page 701. They were pursued in a poinding of the ground upon an infeftment forth of Boyd's land. The Defence was, Bayne had discharged the debt. It was answered,—The discharge was vitiated and scored, and related to another bargain of additional work, and not for the four storeys mentioned in the contract of building. And the lawyers being this day heard on the presumptions on both sides, the Lords were much divided, as in a case of divination. Three or four were Non liquet and unclear; but the plurality found the discharge null and not probative, though the rasure was not in loco substantiali; yet the writer declared, at the subscribing, he remembered of nothing then delete or vitiate; and that it was a writer to the signet framing a discharge of the infeftment without a formal renunciation; which was the only legal way to extinguish the real right against Bayne's singular successors, if that had been the thing actum et tractatum betwixt them. On the other side, it was both hard and dubious to take away a discharge, the subscription whereof was not denied, but ascribed to another cause of an additional bargain, upon so slender grounds.
