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Scottish Court of Session Decisions >>
Grant of Corriemony v Lauchlan Macintosh of that ilk. [1704] 4 Brn 597 (19 December 1704)
URL: http://www.bailii.org/scot/cases/ScotCS/1704/Brn040597-0091.html Cite as:
[1704] 4 Brn 597
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Grant of Corriemony v. Lauchlan Macintosh of that ilk
Date: 19 December 1704
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Macintosh granted a blank bond, for 1960 merks, to Lieutenant-colonel Grant, and he tills up Robert Grant his natural son's name therein; who charging, the other suspends on compensation for a liquid debt due by the Lieutenant-colonel to him. Answered,—This is not inter easdem personas, the charger being the son, and the compensation craved being for a debt of the father's. And on this the decreet goes out against Macintosh, on the last of July 1687. He now raises reduction and declarator against them, wherein he offers to prove his ground of compensation to be clearly inter eosdem, because he produces a back-bond under Robert's hand, acknowledging his name was only inserted and borrowed for the Lieutenant-colonel his father's behoof, to whom the bond was delivered blank; and this being noviter veniens ad notitiam, and not dolose omitted by him, but has been deceived by the Lieutenant-colonel's stratagem, therefore it is yet receivable.
Answered,—He oppones his decreet of suspension in foro, where it is either competent and omitted, or proponed and repelled. Likeas compensation must be instantly verified, and cannot be proponed in the second instance; as appears by the 141st Act, Parliament 1652; yea farther, the Lords found a decreet in absence did exclude compensation, 25th July 1676, Wright against Shiels.
Replied,—That Act of Parliament is no more but the ordinary exception of competent and omitted, which takes not place in decreets of suspension, as Stair observes, lib. 4, tit. 1; and the Lords, on the 18th of June 1662, Earl of Maritimi against Brae, found the said Act of Parliament did not extend to decreets of inferior courts, because competent and omitted is not receivable against such decreets; and Haddingon, voce Compensation, in the case of Ogilvy and Napier, 20th November 1610, says, the Lords thought the said Act of Parliament was wrong printed, or wrong understood, seeing compensation may ofttimes be proponed after sentence.
Duplied,—This was to shake the foundations of our law, where these were undoubted principles, That compensation must be inter eosdem, and liquid, and instantly verified, and not proponable after sentence; and that the granting a blank bond is a tacit renouncing of the defence of compensation; as was expressly decided, 27th February 1668, Henderson against Birny.
The Lords saw there was nothing but res judicata here that stood in Macintosh's way, and therefore allowed the parties to be heard upon what nullities they could allege for opening the said decreet of suspension; for, if that could be turned into a libel, the Lords thought Macintosh's compensation both relevant and proven; but all the difficulty was, how to enter on the decreet in foro, which stood in his way.
