Scottish Court of Session Decisions

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

John Anderson
v.
James Bell

Date: 27 January 1772

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Anderson, pursuing upon a comprising for the maills and duties of the lands therein contained, compearance was made for James Bell,—who alleged, That he having likewise comprised, and having denounced the lands within year and day, which were suspended by Anderson's procurement, of purpose to delay him, his comprising ought to be drawn back to the date of the denunciation, and so repute to be within year and day of the first comprising, and so fall within the Act of Parliament.

It was replied, That the suspension of the letters was at the instance of the common debtor; neither can it be said that it was raised dolo malo, albeit the pursuer had procured the same; because, the suspension being discussed, the letters of apprising were suspended simpliciter; in respect that they were raised for the whole sum contained in the bond, whereas Bell had discharged the half thereof under his own hand.

The Lords did prefer the pursuer to the whole duties; and found, That there being a just reason to suspend the comprising, it could not be drawn back, unless that Anderson's fraud and dolus had been otherwise made appear, and proven by his writ or oath; quo casu they would have sustained the allegeance.

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