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Scottish Court of Session Decisions >>
James Forrester of Logie v Robert Rowat. [1697] 4 Brn 375 (8 July 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Brn040375-0772.html Cite as:
[1697] 4 Brn 375
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Forrester of Logie v. Robert Rowat
Date: 8 July 1697
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Rankeilor reported Mr James Forrester of Logie against Robert Rowat, sailor in Greenock. Rowat pursuing on an assignation from one who died in America for her share of an executry; Logie offered to improve the assignation as false. After extracting the Act for abiding by, and consigning, Logie propones sundry other defences, as that the executry is exhausted, and her proportion of 12,000 merks libelled is exorbitant, and he must prove the quantity.
Answered,—Eœceptio falsi est omnium ultima; and you, having betaken yourself to that, can never return to other defences; but the cause must stand or fall on the event of the trial of the falsehood; seeing I undergo the hazard of my life and reputation, and you venture nothing but £40, and so cannot be suffered to recur to other defences: and, for this, sundry decisions were alleged,— July 3, 1662, Peacock; February 22, 1676, L. of Innes against Gordon of Buckie; January 22, 1666, Earl ofKinghorn.; June 19, l677, Murrays.
Replied,—The proponing of falsehood does indeed debar the proponer from quarrelling, or objecting any nullity against the title or writ craved to be improven; but, quoad alios effectus, it can never cut off the defence of payment or the like.
The Lords sustained this reply, and found other defences receivable which did not concern the title.
