Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Isobell Nicoll and James Innes, her Husband
v.
Thomas Blair and Sir Thomas Wallace of Craigie, Advocate

Date: 12 July 1664

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Thomas Blair, merchant in Edinburgh, by his bond obliges him to content and pay to Andrew Nicoll, burgess there, the sum of L.27, 11s. Sterling money, in 1662. Sir Thomas Wallace of Cragie, advocate, by his [bond,] obliges him to cause the said Thomas end counts with the said Andrew Nicoll, and that under the pain of L.8 Sterling. Andrew dies. His relict, Isobell Nicoll, confirms his testament, and gets her nominated to him executor dative, and that by being surrogated in the place of the commissary fiscal of the commissariot of Edenburgh; item, gets licence to pursue for her deceased husband's debts. Whereupon, with consent of James Innes, writer in Edenburgh, her spouse, she registrates the said two bonds; obtains decreet thereon before the Lords; and on this decreet raises letters; and then charges with horning: which they suspend, 1mo, Because the said decreet is for null defence; for if they had been cited thereto, then the said [Thomas] Blair would have alleged, as [he] does now, that the said decreet could not be pronounced; because the said L.27 ought to be compensed in the first end of 4000 merks owing by the charger to the pursuer, at least to his pupil, to whom he was nominated curator sine quo non; for whom he had advanced and disbursed considerable sums of money on aliment and education, and so had good right to the said 4000 merks; so that he has intented action, for payment making thereof to him against this charger, as intromitter with her husband's goods, even now depending before the Lords of Council and Session: and therefore, till that process be discussed, thir letters ought to be suspended; especially seeing he is willing to compense the said sum of L.27 with the said 4000 merks. And as to Sir Thomas Wallace, 1mo, It is strange how this decreet could pass against him, seeing he, being a member of Court, and constantly attending on the house, the said decreet (if any such had been) could not have escaped him. But, 2do, He has an unanswerable defence, to wit, that his ticket is alternative, obliging him either to make the said Thomas Blair end counts with the said Andrew Nicoll; or otherwise to re-deliver him a bond, (deposited then in his hands,) for the said L.8, granted by the said Thomas to him, that he might thereupon suit execution; but there is no clause in the said ticket that can on any ways be construed obligatory on the said Sir Thomas to pay the said L.8 himself. But so it is, that by warrant from Andrew Nicoll, he delivered the said bond to Thomas Blair, granter thereof.

At the calling of the suspension, of consent of parties, the copy of the suspension is holden for the principal. The charger's procurators declare, that they passed from Sir Thomas Wallace; and that they charged him with, and insisted only against, the said Thomas Blair. For instructing the summons against him, there is produced the extract of the said decreet alleged obtained, with the letters of horning raised thereupon.

Against the reason of suspension, it was alleged for the charger,—That compensation was not in this case receivable; yea, that to allege or crave the same was both absurd and irrelevant, seeing there was a decreet of the Lords produced; whereupon, according to the law of Scotland, there was parata executio, by act of Parliament in King James VI. his time, Parl. 12. act. 141. whereby it is appointed, that no compensation be received after sentence, except the debt were both liquid, and could be instantly verified.

To the which it was duplied for the suspender,—That the act of Parliament extended only to decreets given in foro contentioso. Item, that there was a process intented [at] the suspender's instance, in his own name, and in behalf of his pupil, for the recovery of the said 4000 merks, wherein all the instructions of compensation are produced.

Whereto it was triplied for the charger,—That the act of Parliament was general, of all decreets; and that by the undeniable practice of Scotland, the said act doth militate against such as are contumaciously absent; otherwise it were to no purpose to obtain sentence, et contumaces lucrarentur ex suo dolo. 2do, It were against all reason, that upon raising or intenting of a process, (which is in every man's power,) execution of sentences or decreets should be stopped after they are pronounced by the Lords of Session; and especially when the defender has many just defences against the pursuit intented against him; and when the pursuit is only raised at the instance of the suspender's pupil after obtaining of the decreet whereupon this charge, by him suspended, is founded; by the which it evidently appears that the same is only raised, dolo malo et animo protelandi litem. And all that could be now craved was, that action might be reserved, at the instance of the said pupil, as accorded of the law. 3tio, Neither in this suspension, nor in the said process, are there any [writs] produced to instruct the said suspender's title as assignee, or having right from the said minor; so that, albeit decreet were obtained at the said minor's instance, for the said sum of 4000 merks, against the charger, (as is not,) yet it were against all law, equity, and reason, that the curator should compense debts justly owing by himself, with debts owing to his pupil. Igitur, The letters ought to be found orderly proceeded.

The Lords repelled the reason of suspension, with the duply, in respect of the reply and triply made thereto; reserving always to the said Thomas Blair, suspender, action for the said 4000 merks, upon his pretended assignation thereto. In the mean while, find the letters orderly proceeded, ay and while the suspender pay to the charger the said L.27, 11s. Sterling, with the said L.8, also contained in Sir Thomas Wallace, his ticket.

Suspenders, Mr. Thomas Winziet, and Sir Thomas Wallace. Alt. Mr. George M'Keinzie. Signet MS. No. 65, folio 20.