Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XII.

Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.

Helenor Dawson and Hill, her Husband,
v.
Murray of Spot and his Creditors

Date: 13 February 1706
Case No. No 287.

Found the reverse of Peacock against Baillie, No 269. p. 12140.

Here an exception of nullity was admitted, being instantly venfied.

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Archibald Douglas of Spot having, 4th August 1671, disponed his estate to William Murray of Dunipace, his brother-in-law, upon his giving a back-bond of the same date for 40,000 merks, payable to the disponer and the heirs of his body; and, failing these, to be null; and, in all events, affected with the warrandice of the disposition; in the year 1699, Helenor Dawson, relict of the said Archibald Douglas, and Esquire Hill, her husband, pursued a declarator of trust and extinction of the said disposition, upon a back-bond they had right to, granted by the said William Murray to the said Archibald Douglas, dated 28th of August 1671, acknowledging his right to the estate of Spot to be only in security of L. 40,000, and that he should impute the rents exceeding the annualremt in payment of the principal sum. William Murray raised improbation of this back-bond as false and forged, and obliged the pursuers to abide by And when they insisted in their declarator, it was alleged for Spot and his Creditors, That the back-bond pursued did not only lie under the violent presumptions of falsehood, but was null, and incompatible with the former back-bond, of the same date with the disposition, owned and acknowledged by Archibald Douglas's granting discharges of annualrent, conform thereto, during his lifetime, who lived long after the date of the pretended second back-bond.

Alleged for the pursuers; It is not competent to offer other objections of nullity and incompatibility, after litiscontestation upon the exception of falsehood that is omnium ultima.

Answered for the defenders; Though exceptio falsi est ultima hath passed into a rule for preventing confused and superfluous debate, and that an exception, so grievous and troublesome to the party to whom it is made, might not be alleged at random; yet that cannot be so interpreted, as to exclude the exception of a manifest nullity, arising from the writ itself, and instantly verified. Since ordinarily, after litiscontestation upon any defence, and probation led, clear nullities instantly verified are allowed to be proponed at advising. All forms of procedure are but designed to serve justice; and no material prejudice can be alleged against the admitting of exceptions instantly verified. 2do, Falsehood was not here objected by way of exception, but by way of action of improbation; in which case, it might be insisted in, without prejudice to the exceptions and defences competent to the pursuer, against the other party's declarator, when insisted in by them. Besides, it was Murray of Spot who raised the improbation, and never insisted therein, and his Creditors are now defending their rights and diligences upon his estate, to whom it is entire to object such obvious and pregnant nullities, or incompatibilities, against the pretended back-bond, notwithstanding that their common debtor thought fit to attack it first by an improbation. Yea, lately, in a case of falsehood insisted in betwixt Drummelzier and Wallace, witnesses having acknowledged their subscription, but that they saw not the party subscribe, the writ was found null, though not false. 3tio, Esto the last back-bond were true and formal; yet Archibald Douglas's receiving payment of annualrents, conform to the first back-bond, long after the granting of the second renders the second back-bond null and ineffectual, as incompatible with the first: For, by the first back bond, William Murray is proprietor, and Archibald Douglas only a creditor; whereas, by the second, the latter proprietor, and the former simply creditor.

Replied for the pursuers; If exceptio falsi be ultima as to other exceptions, it must be so as to nullities, which have no greater privilege than other exceptions, and rather should be less privileged, because they are obvious; and a person passing them over, and entering in litiscontestation, homologates the writ. But granting that nullities were receivable after proponing of falsehood, incompatibility is no nullity; 2do, There is no incompatibility in the matter; for, in laws and contracts, posteriora derogant proribus, and the second back-bond regulates, the first; 3tio, Incompatibility is a dangerous topic in matters of trust, ubi aliud agitur, aliud simulate concipitur, and those conveyances please and succeed best, that are in appearance must contradictory and mysterious.

The Lords found the objection of nullity and incompatibility receivable, notwithstanding of the objection of falsehood; and found the two back-bonds to be incompatible; and that the receiving of payments, conform to the first bond, after the date of the second, renders the second null, as incompatible with the first.

Fol. Dic. v. 2. p. 199. Forbes, p. 97.