BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Home v Home. [1678] Mor 12172 (22 June 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor2912172-314.html Cite as:
[1678] Mor 12172
One litiscontestation may be made both upon the charge and the discharge. If the defender have a total defence exclusive of the whole account, it ought to be proponed at the bar, to exclude the account.
Click here to view a pdf copy of this documet : PDF Copy
In an accompt at the instance of Sir Alexander Home against his brother Mr Patrick, it was alleged for the defender, That he ought not to give in his articles of discharge till the charge were constituted and instructed, for till then he could not know how far he was liable, that he might give up the articles of discharge to balance the same. 2do, He had a total defence, viz. That Sir Alexander was denuded, and his right was come by progress in the defender's person.
The Lords found, That processes for compts and reckonings were articulate libels, referred to auditors, because the whole articles of charge and discharge could not conveniently be discussed at the bar, yet the same method is to be followed therein, as in other processes, that one litiscontestation may be made both upon the charge and discharge; for the articles of discharge are defences of payment, compensation, and retention, or the like; so that if the defender have a total defence exclusive of the whole account, it ought to be proponed and discussed at the bar, to exclude an account, unless it be emergent after the act of compt and reckoning; and therefore, after the defender hath seen the pursuer's account, he ought simul et semel to propone his defences, first against the relevancy of the articles in the charge, and then offer his articles of discharge against the relevancy, whereof the pursuer is to be heard, and litiscontestation to be made on the whole; which the Lords declared they would follow in this, and all other compts and reckonings.
