Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Carsan v. Maxwell
Date: 27 November 1677
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Carsan obtains a decreet for making arrested goods forthcoming, before the Stewart of Kirkcubright, against Maxwell; who suspends,
1mo, It bears no dispensation. Answered, The defender was compearing in the decreet, and so had acknowledged, founded, and prorogated the jurisdiction, without proponing that dilator; et primus actus judicii est judicis approbatorius. And it was within ten days of a head-court, at which time inferior judges need no dispensation. Replied, The compearance is disclaimed as officious, simulate, and patched up; and the decreet bears not that the procurator compearing for him had a mandate. Duplied, A mandate was presumed, and the decreet needed not bear it. Yet see supra, No. 576, M'Min and Newlands, [19th June, 1677.]
Their second and third reasons of suspension were, that the decreet was intrinsically null, because it bears defences were repelled, and docs not tell what they were, only because the judge knew them to be frivolous and dilatory. Item, that compensation was proponed and repelled.
But the reason of this was because it was proponed generally, without a special condescendence whereon the compensation was founded. I offered to admit any relevant exception of compensation, or otherwise, providing it were instantly verified. Which they failyieing to do, after several side-bar callings, the letters were found, by my Lord Strathuird, orderly proceeded.
