Scottish Court of Session Decisions

Subject_1 WRIT.

Andrew Trail
v.
Christie

1745, July 30.
Case No. No. 19.

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These parties were before us formerly, in July 1743, upon a question on the stamp act. (No. 15.) The question now was, Whether a general discharge of all bills could be taken off by a proof by witnesses that this bill of L.160 was not intended to be included? which the Ordinary found it could not. The President and I were very clear it could not; but Tinwald and Kilkerran being strongly impressed with the proof that the Ordinary had taken before answer, were for making an exception of this case from the rule. But after long reasoning, we all agreed to take the suspender Andrew Trail's examination in presence (23d July); and after examining him, the 30th, we adhered.—30th July, A discharge being granted of two bills that had been lost, and of all bills or bonds that ever had been granted preceding the date of the discharge, and which discharge was written by the granter himself, the granter offered to prove by witnesses that a bill of L.160 Scots, which was payable some little time before the date of that discharge, (and which the debtor averred he had actually paid, and in particular, that he had paid a balance of it at granting the discharge), was not meant to be included in that discharge, and mentioned some circumstances that raised in us a strong suspicion that it was not intended to be comprehended; yet we could not allow a proof by witnesses to redargue an express writing.