Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. VI.

Defences.

Mr James Forrester
v.
Robert Rowat

Date: 8 July 1697
Case No. No 150.

The proponing the defence of falsehood, debars from objecting to any nullity in the title of the pursuer, but does not preclude the defence of payment or the like.

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Rankeilor reported Mr James Forrester of Logie against Robert Rowat, sailor in Greenock. Rowat pursuing on an assignation from one who died in America for her share of an executry, Logie offered to improve the assignation as false. After extracting the act for abiding by, and consigning, Logie propones sundry other defences, as that the excutry is exhausted, and her proportion of 12,000 merks libelled is exorbitant, and he must prove the quantity. —Answered, Εxceptio falsi est omnium ultima; and you having betaken yourself to that, can never, return to other defences; but the cause must stand or fall on the event of the trial of the falsehood, seeing I undergo the hazard of my life and reputation, and you venture nothing but L.40. and so cannot be suffered to recur to other defences: And for this sundry decisions were alleged; 3d July 1662, Peacock, §, 12. h.t.; 22d February 1676, L. of Innes contra Gordon of Buckie, No 143. p. 12056.; 23d January 1666, Earl of Kinghorn, § 12, h. t.—Replied, The proponing of falsehood does, indeed, debar the proponer from quarrelling, or objecting any nullity against the title or writ craved to be improved; but, quoad alios effectus, it can never cut off the defence of payment, or the like. The Lords sustained this reply; and found other defences receivable, which did net concern the title.

Fol. Dic. v. 2. p. 188. Fountainhall, v. 1. p. 783.