In a process for payment of furnishings made to a defender, he succumbing in the relevancy of the proof of a peremptory exception, was not thereafter allowed to deny the libel.
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In a reduction of a disposition made by one Baillie to the said Spreul, at the instance of Baillie Hall and his co-partners, ex capite inhibitionis, it was answered, That the inhibition was served upon a dependence; and albeit decreet followed thereupon against Baillie, the common debtor, yet the decreet was null, and did not constitute Baillie debtor in any liquid sum; in so far as the libel, being for the price of merchant goods, and for damage and interest, there was nothing proved; and the decreet was pronounced without any probation whatever.—It was replied, That the decreet was opponed, bearing that the price of the goods and the value of the damage were particularly libelled; but the defender proponing a peremptory defence, without denying the quantities or prices libelled, did thereby liberate the pursuer from probation; and the term being circumduced against him for not proving the defence, the decreet was valid, and the inhibition served upon the dependence.
The Lords did sustain the reduction, notwithstanding of the answers made to the reasons; and found, that there was no necessity to the pursuer to prove the quantity and prices libelled, seeing the defender did noways deny the same, when he proponed his peremptory defence; but if the prices were exorbitant which were libelled, they reserved to the defender to intent action for modification thereof to the true avail.
Fol. Dic. v. 2. p. 187. Gosford, MS. No 465. p. 241.
