NAPIER v CARSON and BARBOUR (Court of Session)

A demand was consequently made upon Mr Napier for the sum contained in the bills, and for the expenses in the process of suspension, in which he had been found liable. Mr Napier now, for the first time, discovered that two of the bills had been protested in one instrument, which was extended only on a five shilling stamp; whereas each of them would have required a stamp of that amount. He thereupon suspended a charge which was given on the decree of the Court of Session, which had been extracted against him.

The chargers answered —The decree charged on is res judicata , in respect that the grounds of suspension now insisted on were competent in the former action, and were then omitted; they, therefore, cannot now be proponed; vide Stat. 1672, c. 16; Glendinning, 6th Jan. 1675 ( Mor. p. 12,226); Paton, 22d June 1681 ( Mor. p. 12,229); Dundas, 9th March 1810; Magistrates of Dumbarton, 18th Nov. 1813; and Patterson, 1st Feb. 1819; Stair , B. iv. tit. 1, § 50; Ersk. B. iv. tit. 3, § 3 and 22.

The Court unanimously refused the note, on the ground that the whole reasons of suspension now urged were competent and omitted in the former action.

There is another difficulty in this case arising from the circumstance of the suspender having only been cautioner in the former action, and now using the plea of res noviter veniens ad notitiam . But then it appears that he was dominus litis in that process, and conducted it to a conclusion. He, therefore, had full opportunity of discovering the objection to the document on which the charge proceeded, and cannot now be allowed to plead ignorance of it. On the whole, therefore, I concur with the opinion that the interlocutor of the Lord Ordinary ought to be adhered to.

Lord Ordinary, Mackenzie. Act. Sol.-Gen. (Hope) et Christison. Alt. Boswell et Marshall. Robert Rutherford, W. S. and H. Cannan, W. S. Agents. B. Clerk.