Scottish Court of Session Decisions

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

Mr Patrick Reid
v.
James Wood

Date: 15 January 1679

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Mr Patrick Reid, as assignee to a decreet against James Wood, having charged him thereupon, he suspended on double-poinding; wherein Mr Patrick was preferred, and a decreet extracted. He suspended again, and a second decreet of suspension was extracted; and now he raises reduction and declarator, and insists on this reason,—that the last decreet was unwarrantably extracted, there being a stop by deliverance of the Lords upon a bill.

It was answered, That the pretence of any stop cannot recal any decreet, unless, de recenti, at the time of the extracting, it had been complained of, that the clerk had extracted, notwithstanding of a stop in his hand. But if Wood himself had obtained a stop, and did not deliver it to the clerk, it can be no ground of reduction; and, though he did, it can be no ground to quarrel the decreet, except de recenti: for the putting on, or taking off of such stops, being no material interlocutors, are never mentioned in decreets; and if, upon the pretence thereof, decreets should be reduced ex intervallo, these not being kept as warrants of the decreet, none could be secure. 2do. Wood has given a bond of corroboration, bearing expressly, That, in corroboration of the decreet, he obliges him to pay the sums decerned;—and so can never quarrel the decreet upon any ground before the corroboration.

It was replied, That the corroboration was no voluntary deed, but was to shun caption; and, if the decreet was unwarrantably extracted, it was not a lawful but unwarrantable violence, to take the party with caption. And it was found, in the case of Thomas Rue against Andrew Houston, upon the 3d of July, 1668, That the giving a bond by a party taken with caption, for the debt of the horning, being without abatement, was no transaction, nor hindered the debtor to suspend and reduce the debt in the horning, and the new bond in consequence; in the same way as, if payment had been actually made upon distress, the same might be repeated, if the decreet were reduced.

It was duplied, That though a simple bond of borrowed money, given for satisfying of a decreet upon caption, and obtaining a discharge of the debt, did not hinder repetition upon quarrelling the decreet; yet that never was extended to a bond granted in corroboration of the decreet, which has the same effect as if the grounds of quarrelling were repeated and renounced.

The Lords repelled the reasons of reduction, and would not stop the execution: But there being in the same summons a declarator,—that the debt contained in the decreet was originally due to Andrew Balfour; and Wood having assignation to a debt due by Balfour, might affect this sum, being conveyed by Balfour, to Reid his son-in-law, without a cause onerous;—

It was triplied, That Reid had deponed it was for a cause onerous, viz. for employing a sum which Balfour was obliged, by his contract of marriage, to employ for the heirs of the marriage; and whereof Reid's wife was the heir; and for the sums advanced to Balfour for his entertainment in prison, and for his funeral charges.

The Lords sustained the declarator; and found the obligement to employ, no sufficient cause in prejudice of a creditor of the father: and found the other causes ought to be instructed otherwise than by Reid's oath.

Vol. II, Page 671.