Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Anent Competent and
v.
Omitted

Date: 31 January 1671

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One alleging exhausted, it was answered, That the said defence was competent to have been proponed before the commissaries, and being omitted there, it could not be received now in secunda instantia. replied, That he could not propone it before the commissaries, because they nor no inferior Judge sustain this defence, exhausted by lawful sentences before the intention of your cause, unless they say obtained a decreet of exoneration, (though it be relevant before the Lords;) and why should he have proponed that which would have been repelled? duplied, That having proponed it, and being repelled, he should have advocated upon that ground.

Vide Hope's Minor Practicks, Cap. 2. of confirmation of testaments; page apud me No. 13; 7th December, 1609, Aikman.

Advocates' MS. No. 119, folio 88.