Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. VII.
If presumed to comprehend debts in which the granter is a substitute only.
Sir John Sinclair of Stevenson, v. The Executors of William Barnsfather
Date: 7 July 1724 Case No. No 28.
A general discharge of a factor's accompt was found not to comprehend a sum received, for which he himself granted receipt, obliging himself to pay it to his constituent, and procure his discharge of the debt.
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Sir John pursued these executors for payment of L. 824 Scots and annualrents thereof, contained in a bond by Andrew Gray to Sir John in the year 1697; which sum, Gray had paid to Barnsfather anno 1698, and taken his receipt or discharge, wherein Barnsfather obliged himself to procure Sir John's discharge.
It was pleaded in defence, That it was to be presumed Barnsfather had accounted to Sir John for that money, or paid it in to him, he being then his father Sir Robert's servant, and employed by Sir John both in getting in and giving out money, and he was for many years thereafter Sir John's factor, and accounted almost annually with him; that in his last fitted accompt, Sir John discharged him of his intromissions with his rents, and of all other intromissions whatsoever preceding the date; and that Barnsfather reckoned himself noway debtor to Sir John, was to be presumed from his leaving a legacy of 2000 merks to one of Sir John's sons.
It was answered, That it did not appear that Sir John employed Barnsfather sooner than the year 1710, when he appointed him his factor; that the receipt puts the Representatives of Barnsfather under an obligation to account and pay the same to Sir John; that the general clause in his factor-accompts, discharging all other intromissions, can only regard intromissions of the same nature with rents, and could not extend to extraneous intromissions with large sums of money, such as this pursued for. And as to the argument from the legacy, it was answered, That it could be of no Weight in the present question; for Barnsfather died rich and without children, and he had made the bulk of his money under Sir John and his father, from whom he possessed a lucrative farm.
The Lords found, That the general discharge at the foot of the accompt, of charge and discharge, betwixt the pursuer and the deceased William Barnsfather did not comprehend the sums in the bond discharged by the said William Barnsfather.
Act. Arch. Hamilton, sen.Alt. Ja. Graham, sen. & And. Macdowal.Clerk, Dalrymple.
Fol. Dic. v. 3. p. 250. Edgar, p. 72.
