Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Gardiner
v.
Christie

Date: 3 February 1670

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In a spuilyie, pursued at Christie's instance, as assignee, by one Mac Andrew, who was tenant to Gardiner, whereupon he had recovered decreet; there was a suspension and reduction raised upon this reason,—That the ground of the decreet was, that the discharge granted to Gardiner was posterior to the assignation made to Christie, the pursuer; and seeing the discharge was relative to a disposition, prior to Christie's assignation, which was not proponed: And that Gardener's advocates, who are made compearing in the decreet, have deponed upon oath, that they had proponed their allegeance only upon the discharge, but not upon the disposition that was relative thereto; and that they were never called the time of the advising of the cause:

The Lords did repone Gardiner against the decreet of spuilyie, and ordained it to be turned into a libel; that both parties might be heard to allege, as if they were in prima instantia; and that, notwithstanding the decreet was extracted, as being in foro contradictorio: because they found, that it was done by the error or negligence of the clerk.

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