Where the defender has been in dolo to take out the decree, competent and omitted cannot be obtruded.
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A decreet at an assignee's instance, being quarrelled as ultra the pursuer's title, in so far as, though two of four cautioners were discharged, and excepted from the assignation, and the defender, then pursuer, represented another of these cautioners, decreet was taken against the pursuer, (then defender, who represents but one of the four cautioners) for three parts of the debt.
Answered; The reason was competent and omitted, in respect the assignation was given out in process, and decreet pronounced thereon in foro contentiosissimo; 2do, Res est homologata et transacta, the defender having gotten an abatement of the sum decerned, and discharged the decreet.
Replied; The defender being in dolo to take out a decreet in such terms competent and omitted cannot be obtruded, though the pursuer's advocates had not observed the error; 2do, What the pursuer did in obedience to the decreet, cannot be constructed homologation, which is actus voluntarius, seeing he was under the lash of a charge of horning upon the decreet at the time; 3tio, The defender's dole ought to open the transaction; and the pursuer now insists, as representing a co-cautioner, for relief of the third share of the other co-cautioner now insolvent; and it were hard to make the pursuer pay four shares, when two were discharged, and a third cautioner insolvent.
The Lords repelled the answer of competent and omitted, and homologation, in respect of the reply thereto; but sustained the transaction relevant.
In this process the Lords found, That the assignation, bearing, that the two cautioners were discharged, though for love and favour, did operate a discharge of the half of the debt, and was more than a pactum de non petendo.
Fol. Dic. v. 2. p. 207. Harcarse, (Decreets.) No 409. p. 109.
