Condictio indebiti was sustained, although it was pleaded, that there existed, an obligatio naturalis vel eivilis, prior to the payment, by a bond and sentence of a Court; but the bond was obtained by improper means, and the court was not duly constituted.
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There being a decreet recovered by another Fiddes against Jack, before the English officers at Leith, in the beginning of the year 1652, for a sum of money; whereupon Jack being incarcerate, he was forced to give a bond to this defender, who was assignee constitute by this Fiddes, and to give his brother cautioner therein. Upon which new bond Jack was also charged, and an act of warding followed thereupon; the bond being registrate in the town court books of Edinburgh. Jack gave in a bill to the Parliament, which was remitted to the Session, desiring repetition of the sum. It was alleged, There could be no indictio indebiti, where there was obligatio naturalis or civilis preceding: Ita est there was not only a civil obligation by the sentence recovered, but by the new bond granted to the assignee, who was not obliged to know, how, or what way the sentence was obtained: And Jack having transacted therefore he could not now be heard to quarrel the transaction against the assignee, or to crave repetition. It was answered, That the officers' sentence was most unjust, both in the matter and in the manner, they having no civil jurisdiction: And the same defender was assistant to the cedent in recovering of the sentence, as he will not deny. Likeas, the pursuer was forced to grant the new bond to him as assignee, and pay the new bond to free himself of prison; there being no civil judicatory, where he could have any remedy; the English Judges for administration of justice not being then established, who sat not till June 1652. And though it had been sitting, it could not have been expected that Jack could have helped himself, by any course they would have taken, for annulling the sentence of the English officers. Likeas, by an act of the late Parliament, all sentences pronounced by the Englishes, since their in-coming, are appointed to be reviewed.
The Lords repelled the allegeance, and sustained repetition.
