CHARLES WALKER v JOHN MACGILP (Court of Session)

His Lordship stated the grounds of his opinion in a note, in the following terms:

The result of the matter then is, that the consents given in 1823 were not held to have fallen by the long period of inaction that had followed, or to require to be renewed when the discharge was at last applied for; and if this was the case in 1834, still less could these consents have fallen or ceased to be operative and binding in 1829, when the respondent brought his action against the bankrupt; and it is upon this ground mainly that the Lord Ordinary has proceeded in holding that the defence founded on these consents ought to have been sustained.

Nothing is said in the interlocutor as to the advocator's right to withdraw a plea of compensation advanced by him, and sustained in the inferior court, or to have his right of action on the compensating claim reserved to him; and the Lord Ordinary means to give no decision on these points. The plea of compensation will probably be thought to have fallen, when the debt against which it is stated is disallowed in toto; and if the advocator has a legal right still to insist in his counter claim, it needs no reservation.’

Answered for the advocator—1st, As the debts sued for were constituted by liquid documents of debt, an action of constitution was not necessary to enable the respondent to be ranked. 2d, The respondent, as the assignee of Sinclair and Young, was bound by their concurrence to the advocator's discharge, and barred from insisting in this action. 3d, At all events, the advocator having obtained a final discharge, any decree against him is incompetent.

Their Lordships recalled the Lord Ordinary's interlocutor, advocated the cause, and in respect of the discharge, found, that the respondent's debt was extinguished, except as to the dividends to be received in the sequestration; and to that extent they altered the interlocutor of the Sheriff, and found no expenses due to either party.