Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

James and William Nisbet
v.
Hugh Nisbet

Date: 13 January 1629

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James and William Nisbet pursued Hugh Nisbet, as lawfully charged to enter heir to his father, for payment to them of certain sums intromitted with by his umquhile father, who was tutor to the pursuers. In that action, Hugh compearing, took a day to produce a renunciation; which day being past, and he not having renounced, the term was circumduced, and decreet given against him as lawfully charged to enter heir. This decreet was afterwards suspended by Hugh, upon this reason, That he was only decerned as lawfully charged to enter heir, and that he has produced now a renunciation. Alleged, He cannot be heard now to renounce, in respect of the decreet standing, given against him in foro contradictorio. Replied, It is not a decreet in foro contradictorio, although the suspender be compearing therein; because he is neither denying the summons, nor proponing any exception exclusive of the debt, but only against the medium concludendi against him, viz. against that part whereby he was craved to be decerned as lawfully charged to enter heir; and, although it were a decreet in foro contradictorio, yet, he being ready to renounce, re integra, it must be sufficient to suspend the decreet. The Lords found the reason of suspension relevant, unless the charger would qualify some prejudice that he had sustained through the suspender's delaying of him in the first decreet; consideration also being had of the charger's expenses, which should be refunded him by the suspender, at the Lords' modification.

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