Scottish Court of Session Decisions

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.

Catharine Graham
v.
The Earl of Leven and Major Colt

Date: 20 January 1710

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Catharine Graham, relict of John Murray, sergeant in the castle of Edinburgh, as executrix to her husband, pursues the Earl of Leven as governor, and Major Colt as paymaster of the said garrison, for £38 sterling of arrears, when be served there; and, after some debate, she obtains a decreet: which being suspended, the Earl insisted on thir reasons:—That the decreet was null, being pronounced the last day of the Session, and extracted in the vacance, when the Earl had no access to apply. 2do, She had no sufficient active title in her person, being only a decreet dative and a license, excludendo sententiam; and though she now produces a confirmed testament, yet, that being confirmed after she had extracted her decreet, that superveniency can never validate nor supply the defect, seeing the confirmation should be before extract. 3tio, He produces a discharge under the husband's hand for a part of the claim; and, as to the remains, be must have deduction and allowance of sixpence off his eighteen pence, which is a sergeant's pay, each day, for clothing-money, and a penny the pound for poundage-money, and one per cent, of invalid-money; all which being allowed, he is willing to pay the superplus.

Answered to the first,—That decreets pronounced the last day of the Session are as good as those pronounced any other day, else the lieges would be very insecure. To the second, Her active title is good enough, seeing she produces a confirmed testament, whether it was produced before extract or not. As to the third, anent the discharge, it was competent and omitted, and was kept up on design to procure a new suspension; and she repeated a reduction of it ex capite metus, as extorted from her husband vi majore,—he being thrust into the pit of the castle till he gave it. To the fourth, No deduction for clothing, except for those years they got clothes, seeing he was put to buy to himself; 2do, Fourpence is all that uses to be defalked off a sergeant's pay; and, for the poundage and invalid-money, she is content to allow them.

Replied,—Though decreets in the end of the Session are valid, yet, where parties are surprised, and left without remedy, they may the more easily be reponed; and her active title is nowise sufficient, unless it had been produced to the clerk before extracting: And, for the discharge, competent and omitted can never be obtruded against it; for bona fides non patitur bis idem exigi, and exceptio doli mali will for ever exclude a party from seeking payment of that which he has gotten already; and no decreet can bar that, if instantly verified; but the truth is, this was noviter veniens ad notitiam, and very providentially found by the Major, who had forgot it. And, as to the reduction of it ob vim et meturn, though she gets a gratis-warrant, yet that should give her no privilege impune to wound and bespatter the honour and reputation of the least of her Majesty's subjects, but much less those of the first rank and quality. And they are content to give her a day to prove that it was extorted viis et modis; and when she succumbs, what redress gets my Lord?

The difficulty that took off its being a res judicata was, that she had extracted before she had confirmed; and yet it was thought, that, by the regulations 1695, that could only open the decreet ad effectum to supply that nullity only, but all the rest stood good; therefore they reponed the Earl to found on the discharge allenarly, but repelled his reasons of suspension as to all other defences, except that of payment only.

Vol. II. Page 557.