Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 PERSONAL AND TRANSMISSIBLE.

Calder
v.
M'Kenzie

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An act of litiscontestation transmits certain penal actions against heirs, because by this a relevancy is established, and parties join issue in going to proof upon that relevancy ; but, in an act allowing a proof before answer, no relevancy is established, nothing is determined at all, no obligation is created which did not before exist, and no room for arguing that the ground of action is rendered transmissible against heirs : Every defence relevant in law, may still be proponed ; and, though the libel should be proved, the defender may be assoilyied.

So it was argued for the Relict and Children of M'Kenzie, tutor of Kilcoy. The case was a transference of an action of oppression and damages, brought by Calder against M'Kenzie, for having defamed him as guilty of an intention and attempt to assassinate him,—concluding also for a censure, and a sum in solatium. In this, an act before answer was pronounced and extracted, before M'Kenzie's death : after his death, a transference being brought, Lord Stonefield transferred it, that is, the whole statu quo, reserving all defences. And the Lords adhered.

On the above subject, see Bank., V. II, p. 608; Erskine, B. 4, tit. 1, § 70,also p. 591, 642; Falc., 22d January 1751, Hepburn against M'Lauchlan ; Kilk., p. 396, 401 ; Mack. Obs., p. 136 ; Dict., V. II, p. 74. See rather on the other side, Fount., 19th January 1710, Lady Ormiston against Hamilton. But, upon looking at this decision, it is not in point.