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Scottish Court of Session Decisions >>
Dr Robert Trotter v The Lady Harviston, and Dundass, her Son. [1694] 4 Brn 209 (8 November 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040209-0473.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Dr Robert Trotter v. The Lady Harviston, and Dundass, her Son
Date: 8 November 1694
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The Lords found a decreet quarrelled de recenti, upon informality or wrong extracting, might be recalled summarily on a bill; but, after any considerable space, that they ought to proceed by way of reduction. Yet, in this case, because the charger refused to discuss summarily on the bill of suspension given in by the Doctor, who was cautioner for Watson in the suspension; therefore, though they would not force the charger to produce his decreet hoc ordine, yet, ad informandum animum judicis, they ordained Mr John Dalrymple, clerk to the process, to produce the grounds and warrants of that decreet to Phesdo, before whom the bill of suspension was presented; that if he found any irregularity in extracting that decreet, he may then pass the suspension without caution, seeing the charger will not insist. For some thought there might be cases where a suspender ought not to be put to find caution, where he had a relevant reason, and that likewise proven as a discharge of the debt. But it was answered,—There was still need of caution, seeing the discharge may be quarrelled as false; but, if a decreet be extracted spreto mandato, after a stop given, I think it may suspend without caution.
