Scottish Court of Session Decisions

Subject_1 COLLUSION.

Borthwick
v.
Clerk

Date: 28 November 1628
Case No. No 3.

A party having denounced, in order to comprise, and the debtor suspending, the denouncer was preferred to another, who denounced, and completed his comprising and got himself infeft, before the suspension could be got discussed, the said person having procured the suspension by his own travel and expenses.

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In an action of removing by a compriser against another compriser, who had both comprised the lands of the common debtor, and the pursuer having first comprised, and being first infeft, the defender having denounced before the pursuer, after which denunciation, the common debtor having raised suspension of the charge and denunciation, during the dependance whereof the pursuer expede and intented his comprising; and this suspension being discussed against the suspender, which was alleged by the defender in this removing, to have been procured by this pursuer, by his travel and expenses, and by his finding caution, whereby he was in dolo to pass through his own comprising, whereby the defender's denunciation, which was first made, became extinct, so that he was forced, after the discussing of the suspension, to denounce of new, and so he was after the pursuer, ejus dolo et culpa, quæ non debet sibi prodesse; this allegeance was sustained in favours of the defender, the second compriser; but that the suspension was purchased by the pursuer ut supra, that was found ought to be proven by writ, or by this pursuer's oath.

Fol. Dic. v. 1. p. 152. Durie, p. 401.