Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Maxwel of Netheryett
v.
Stuart of Shambellie

1683. January.

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Stuart of Shambellie having suspended, upon compensation, a decreet for £300, obtained against him by Maxwel of Netheryett, and having, after an interlocutor sustaining the compensation, but before the pronouncing of sentence, beat the charger; he, the charger, insisted upon the Act ——, Parl. 14, James VI, and craved the letters might be found orderly proceeded. Alleged for the suspender, That it was only the meaning of the said Act that the invader should not be allowed to propone any thing after the invasion; but it were hard to cut him off from compensation already sustained. Answered, The charger did industriously give the first provocation by injurious words, knowing the suspender to be a hasty man. Replied, The suspender must be cut off from his reasons of suspension; for the Act of Parliament operates as much as a discharge of the debts suspended on, so as they can never be the gronnd of any action in time coming, or sustained as a defence or reason of suspension in this process, and has not simply the effect of an absolviture ab instantia, but extinguishes the litigious subject. The Lords having found, upon advising the proof, That though the charger uttered first some injurious words, the suspender gave the first blow with his staff, and so was the first aggressor: They found the pursuer's reply relevant, and that the suspender was cut off from his grounds of compensation founded on, and could not use them in any other process. Vide No. 934, [Strachan against Tolquhoun, January 1687.]

Page 254, No. 902.