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Scottish Court of Session Decisions >>
Sir William Binny and Sir Robert Baird v Johnston, Leckie, and Crawfurd. [1692] 4 Brn 8 (24 November 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040008-0017.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir William Binny and Sir Robert Baird v. Johnston, Leckie, and Crawfurd
Date: 24 November 1692
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Sir William Binny and Sir Robert Baird against Johnston, Leckie, and Crawfurd, merchants in Glasgow, craving to be reponed against a decreet in foro obtained by Andrew Alexander, factor, at Rochell, against them. The Lord President thought this was not to be reputed such a decreet in foro as was irreducible and unquarrellable; for it was not the proponing dilators or defences against the relevancy of the libel only that made it in foro, (for advocates might propone such without advice from their clients,) but defences in facto to be proven. The rest of the Lords thought this distinction against the act of regulation in 1672, and that it would open a door to loose any decreet in foro, and to hold fast again, as the Lords pleased to call it, a decreet in absence, or on compearance. Therefore, to shun this arbitrary course, they laid hold on a general letter, wrote by the debtors, seeming to acknowledge the debt; and found the letters orderly proceeded against the two subscribers; and as to Leckie, the third, seeing the letter bore it was also written by his warrant, ordained him to dispone if he gave any such order.
