Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Oliphant
v.
Cowper

Date: 21 February 1678

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The tutor of Stormont having drawn a precept upon Cowper to pay to Kinfauns 800 merks, Kinfauns assigns the precept to Laurence Oliphant; who thereupon pursues Gilbert Cowper for payment, who alleged compensation upon debts due by the cedent before the assignation; which was found relevant, and an act extracted: which being called, the defender produced some writs for proving the cedent's debts; the pursuer was content to allow what was produced, and craved decreet for the rest.

The defender alleged, That the Ordinary could not advise the writs produced for satisfying the desire of [the] act; but the same behoved to be advised by the Lords, proven or not proven, according to the ancient and inviolable custom; for though the Ordinary may refuse to admit writs not relating to the cause, when offered, to stop circumduction of the term, yet if that which is proper be offered, he cannot advise whether it proves in the whole or in part; which is a great security to the lieges, and hath this advantage to defenders,—that, before the probation come in to be advised by the course of the roll, he may produce further.

The Lords found, That the Ordinary could not advise the production; but declared,—that if the defender would not consent to a decreet for the superplus, but delay, the same should be cum onere expensarum.

Vol. II, Page 617.