Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. VI.

Defences.

The Laird of Innes
v.
Gordon

Date: 22 February 1676
Case No. No 143.

Exceptio falsi omnium ultima hinders not action of improbation and reduction, both on falsehood and nullity.

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Gordon of Buckie having granted a bond of L. 1000 to Walter Ogilvie, his half-brother, in anno 1626, and he having assigned the sum to the Laird of Innes, he pursues this Buckie, as representing his goodsire, granter of the bond, who proponed a defence upon two discharges, one of 300 merks, and the other of 1200 merks. Innes raised reduction and improbation of the last discharge; 1mo, As being null by the act of Parliament, as wanting the writer's name; 2do, As being false; and before litiscontestation Innes having petitioned that Buckie might abide by the bond, and that some old witnesses might be examined, to remain in retentis, for proving that Walter Ogilvie neither was, nor could be at Banff (where this discharge bears to be subscribed) upon the 22d day of January 1629 years, because he was at Edinburgh upon the 26th day of January 1629 years, as appears by a letter of Slains, subscribed by him of that date, wherein Philorth and one Gardner are witnesses; who being examined, did depone, that Walter Ogilvie was several weeks before the letter of Slains in Edinburgh, agreeing about the slaughter of his brother. Innes now insisting upon the nullity in the foresaid article in the indirect improbation, the witnesses inserted being dead; it was alleged for the defender, That the pursuer could not insist upon the nullity, having once insisted upon the improbation, which is omnium exceptionum ultima, and having put the defender to abide by, and examined witnesses upon the indirect articles.—The pursuer answered, That though improbation be the last exception, it is not here proponed by way of exception, but by way of action; and when the same libel contains both improbation and reduction, the pursuer may insist jointly upon both;

Which the Lords sustained.

The defender further alleged, That, as to the reason of reduction upon the nullity, he would condescend upon the writer, which hath always been sustained to elide, that nullity.—The pursuer answered, That the act of Parliament doth declare such writs simply null, wherein writer and witnesses were not designed: And though the Lords have admitted of designations to be condescended on, yet that was only in casu recenti, where the writer and witnesses were alive, that they might be adduced to improve. But here, in a matter so ancient near 50 years since, the defender cannot be admitted to supply this nullity, by designing a writer at random, who cannot be known, especially seeing there are so many evidences of falsehood in the writ.

The Lords found the discharge null, for want of the designation of the writer; but if the defender will presently design a writer that is alive, or though he be dead, will produce several of his manuscripts, that may be compared with the hand-writing of this discharge, they will consider the same with the indirect articles of the improbation.—See Writ.

Fol. Dic. v. 2. p. 188. Stair, v. 2. p. 420.