Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XIV.
Discharge of Trust. - Settlement of Factory-accounts. - Expenses of plea after extract.
Hutton v. The Earl of Forfar
Date: 17 January 1710 Case No. No 89.
A creditor, in possession of a decree containing expanses, accepted of the principal sum. Found, that he was precluded from afterwards claim in gexpenses.
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The Earl of Forfar being debtor to Robert Hutton, merchant in Edinburgh by a subscribed account in L. 13: 19s. Sterling, he pursues him for payment, and obtains a decreet in absence, bearing L. 25 Scots for expenses of plea. After this, the Earl pays the sum contained in the account, and takes a receipt on the foot of it. Then Hutton charges the Earl for the L. 25 of expenses contained in the decreet. He suspends Upon this reason, That by the receipt produced, the principal sum is paid and discharged, and so the principal debt being extinguished, the expenses must fall in consequence; nam sublato principali corruit accessorium, quod sequitur naturam sui principalis; and if you had any further sum to claim of me, you should have mentioned and excepted it in your discharge, and not have concealed and kept it up, as you did; for if you had spoke of it, I would not have paid the account till I had been freed of all.—Answered, The expenses modified to me by the Judge did ipso momento of his sentence become a separate obligation, subsisting per se, and could never be extinguished by paying the principal debt, the dicharge whereof can go no further than what is expressed; and though an accessory falls with the principal, yet here the expense becomes a distinct independent debt, even as if one pursues on two tickets, and takes a decreet for both, the paying of one of them will not exclude nor exoner quoad the other. Put the case, one discharged a sum bearing annualrent, that will not comprehend the annualrent, unless it be per expressum mentioned; and so does the Roman law decide, l. 49. § 1. D. De act empt. and l. 75. § 9. D. De verb. obligat. Tot sunt stipulationes quot sunt res; there is both a stipulatio sortis et stipulatio usurarum; and the law distinguishes betwixt interest arising ex mora debitoris, and where due ex stipulatione et pacto. In the first case, sorte soluta usuræ peti non posunt; but in the second, though the principal sum be paid, yet the annualrents may be afterwards acclaimed. And so Joannes a Sande observes it was decided in the Court of Frizeland, lib. 3. tit. 14. def. 10. though the principal sum was paid, etiam absque protestatione et reservatione, yet the usuræ rei judicatæ were still due.—The Lords were divided on this point of law, but the plurality found no expense, and assoilzied the Earl.
Fol. Dic. v. 1. p. 439. Fountainhall, v. 2. p. 555.
