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Keir v Marjoribanks. [1546] Mor 5036 (31 July 1546)
URL: http://www.bailii.org/scot/cases/ScotCS/1546/Mor1205036-016.html Cite as:
[1546] Mor 5036
Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. IV.
Whether General Discharges comprehend rights of reversion; back-tacks; actions of improbation.
Keir v. Marjoribanks
Date: 31 July 1546 Case No. No 16.
A discharge of a contract, discharging sums of money, with this general clause, “and all other points,” &c. was found not to extend to a rever ion contained in the contract, though there was no other Point to which the clause could refer.
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The Laird of Keir discharged all the soumes of money containit in the contract made betwixt him and Mr Thomas Marjoribanks, and grantit him weill paid thereof, except ane certain soume, and also dischargit the said Mr Thomas of the remanent points of the said contract, and sua it was that there was no other points in it that Mr Thomas aught to do to him, but the giving of ane reversion of the lands contained in the contract, as the said contract mair fully proports. The Laird raisit summonds upon Mr Thomas for not fulfilling of the contract, viz. in the points of the reversion. —He allegit, Was dischargit by the Laird's acquittance, as fulfilled quia ilia clausula qualis one of the remanent points should not be supersedit; and it behovit to be comprehendit, because there was no other in the contract concerning Mr Thomas, as said is. — It was allegit, That the reversion was of greater avail than the points specially dischargit, viz. the soumes of money, because the reversion was an heritable right of the lands, and sua it could not come under a general clause. —It was allegit for Mr Thomas, That albeit it were of greater avail nor the points speciallie dischargit, nevertheless in this case it should be comprehendit here, because ‘ubi clausula generalis, non potest operari nisi quoad majora express. et quum illa tantum restant tunc comprehendit illa, ut per Joannem Monachum, in Cap. In quali de re Jud. et per Silium, et alios Cap. Sedes extra de restitutione; sed in casu nostro nullum restabat punctum contract. per Thomam implend. preter commissionem reversionis; et ex qua acquittantia erat; dictusque Dominus Keir fatebatur se plane solutum de omnibus pecuniarum summis in contractu contentis, et de eadem in omnibus aliis punctis contract. prefat. exoneravit Mr Thomam; igitur per generalem illam clausulam exoneravit ipsum etiam de danda reversione; et ulterius dicebat Mr Thomas, quod reversio longe erat minoris valoris quam summæ pecuniarum de quibus erat exoneratus, et ideo deberet illud punctum tanquam minus expressum videri, per clausulam generalem remiss. In omnibus non obstan. major pars dominorum interlocuti sant clausulam predict, non comprehendere reversionis donationem, et quod oportebat specialiter et in specie eadem remitti, et jndicio meo male judicat. et contra jura; et in hac questione omnes erant equaliter divisi, et Dominus Cancellarius votum suum tulit Domino Keir.’
