A defence competent and omitted in an inferior court, having been obvious to the procurators, was found not receivable in the second instance.
Click here to view a pdf copy of this documet : PDF Copy
Joseph Baggat having arrested the mails and duties of a tenement as due to his debtor, in the hands of John Caldwall, possessor of the tenement, before the Bailies of Ayr; Caldwall compeared but refused to depone, and therefore was holden as confessed, and decerned. He suspends on these reasons; 1mo, That he was most willing to depone, and produced an instrument of his offer to depone; 2do, That he had a tack granted by Janet Caldwall by a factory from her husband, heritor of the tenement, which would defend him. It was answered to the first, That the instrument of a notary, not being clerk of the Court, could prove nothing against the express tenor of a decreet, but only the oaths of the members of Court; and as to the tack alleged upon, it is null without a tack-duty, and it was competent and omitted in the first instance; and, albeit competent and omitted be not sustained as to decreets of inferior courts, where the defence is in apicibus juris, and is not obvious to the procurators of these courts; yet, in obvious defences, such as, the suspender's own tack, it cannot be construed but dolose omitted to suspend upon, and therefore it is not receiveable in the second instance.
The Lords repelled the reason founded upon the instrument, being contrary to the tenor of the decreet, which could only be controuled by the oath of the Judge and Clerk; and repelled the reason upon the tacks, as being obvious, and therefore presumed to be dolose omitted.
