Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Walker
v.
- -

Date: 14 February 1740

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A contract was reduced upon the head of fraud and circumvention ; and Walker, the defendant, was condemned to pay £100 sterling, in name of damages and expenses.

The pursuer gave in a petition craving that the interlocutor might be so explained, that 300 merks, which Walker had given the pursuer in consideration of the contract reduced, might be deduced from the foresaid L.100 sterling ; which petition the Lords having advised with the answer, found, That Walker could not retain the 300 merks oft' the L.100, but reserved him action as accords. Some of the Lords, particularly Arniston, doubted whether he could have any action for recovery of the 300 merks. Elchies thought he could have none. Others thought that by the reduction every thing ought to be brought back to the former state,—restitutio enim it a facienda est ut unusquisque in integrum jus suum recipiat ; and so were for giving Walker retention of the 300 merks.