In Competition, Pleas are receiveable by Exception, which otherwise would be Competent only by Reduction.
Tulliallan and Condie v. Crawfurd
Date: 17 June 1664 Case No. No 92.
A discharge which had been rejected in a suspension, but extract superseded to give time to instruct it; not being instructed within the time, was not afterwards, when instructed, received in defence against a declarator of an apprising.
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Tulliallan and Condie pursue a declarator of an apprising led against them, as satisfied and paid within the legal, by intromission, and as an article adduce a discharge of a part of the sum apprised. The defender alleged, That the allegeance was not now competent, because it was res judicata, before the Lords of Council and Session, in anno 1637, where the same allegeance being proponed in a suspension,
The Lords found not the same instructed, and therefore found the letters orderly proceeded, yet conditionally superseding execution of the decreet till such a day, that, in the mean time, if the same were instructed, the instructions should be received; and nothing was produced during that time, so that it cannot be received more than 27 years thereafter to take away an apprising clad with long possession, and now in the person of a singular successor.
The pursuer answered, That his declarator, founded upon the said article, was most just and relevant, it being now evident, that the sum apprised for was paid in part; and as for the point of formality, albeit in ordinary actions, where terms are assigned to prove, and so a competent time granted to search for writs, if certification be admitted regularly, it is valid, and yet, even in that case, the Lords will repone, upon any singular accident, in a suspension, ubi questio non est de jure, sed de executione.
The Lords would not delay execution unless the reasons be instantly verified;
Yet in petitione will not take away the right.
The Lords sustained the defence, and would not sustain the foresaid article, in respect of the decreet in foro contradictorio, though, in a suspension here, there was no allegeance that the writs were new come to knowledge, or newly found, nor could be, because it was alleged in the decreet.
