Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XIV.
Discharge of Trust. - Settlement of Factory-accounts. - Expenses of plea after extract.
Charles Menzies, Writer to the Signet, v. Alexander Gordon of Pitlurg
Date: 26 January 1709 Case No. No 88.
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In the action at the instance of Charles Menzies against Pitlurg, for damage and expenses sustained by him in a former process of reduction and declarator against the same defender, the Lords refused to allow any such expenses to the pursuer, in regard there was a decreet in that former process extracted, and no expenses therein decerned, which did terminate the plea; albeit it was alleged for the pursuer, That his first summons contained a conclusion for damage and expenses against Pitlurg; and he might legally insist in that conclusion, whereon nothing was done, notwithstanding of the decreet extracted upon other points, as is daily observed in general and special declarators, actions against principals and cautioners, passing from pro loco et tempore, &c.; because, albeit different conclusions for different effects may be insisted in after extracting decreet in other points, the article of damage and expenses is but a consequence of the process, which is understood to be past from when not demanded and modified in the decreet.
Fol. Dic. v. 1. p. 439. Forbes, p. 311.*** Fountainhall reports the same case:
1709. February 1. —Hamilton, tutor to Menzies of Kinmundie, having obtained a decreet of sale of his pupil's lands, for payment of the debts he had proved affecting it, he affixes placards for a roup; and though Charles Menzies writer to the signet was the highest offerer, yet he exposed them to a second roup, and therein preferred Alexander Gordon of Pitlurg, whereof Charles raised a reduction, and was preferred; but Pitlurg having possessed for some years, there was a count and reckoning raised, wherein Charles was ordained to find caution to pay him what in the event should be found due, on Pirlurg's ceding the possession; and this process being closed by an extracted decreet, Mr Menzies now insists for his expenses and damages, incurred through Pitlurg's intermeddling clandestinely in his bargain; which being reported by my Lord Grange, the Lords seemed to agree to these positions, 1mo, That the expenses laid out in process cannot be acclaimed after a decreet is extracted thereon, for then lis est finita, and there is no more process depending; and esto the defender had been both calumnious and litigious, yet no new process is competent for these expenses, because, after extracting, law presumes such an acquiescence that no more is to be claimed by either party than what is contained in the decreet terminating the plea; 2do, That this rule will not extend to damages, but a process might be raised for these; or, if there was a conclusion in the first summons to that purpose, not insisted on before, he may now give out his process of new, and insist upon that conclusion whereon there was no debate nor interlocutor before; 3tio, That in this particular case, though Pitlurg was in mala fide to interpose in the roup, yet Charles did not give in his bond of caution when instrumented, and so being in mora, retarded the process; thus the one fault must compense the other; and refused to modify either expenses or damages to Charles, and assoilzied Pitlurg from the same.
