Click here to view a pdf copy of this documet : PDF Copy
In a removing pursued by the Earl of Arran Stuart, against one Crawford, to remove from Kinneil, the defender alleged, He was tenant to the Earl of Arran Hamilton. Afterwards the same Crawford being pursued to remove by the Earl Hamilton; and the defender alleging, That the pursuer had produced no title to instruct his precept of warning and summons; his former confession was obtruded to him by way of reply, and found by the Lords, that the defender's judicial confession, (though not excepted by the pursuer,) was sufficient to prove against himself, and serve loco tituli to the pursuer.
Spottiswood, (Removing.) p. 277.*** Colvil reports this case:
The umquhile Earl of Arran Hamilton pursued one Crawford to flit and remove from the kirklands of Kinneil. It was answered by the defender, That the pursuer produced no title to instruct his precept of warning and summons. It was replied, That the said Crawford being pursued for the said cause by the Earl of Arran Stewart, did allege, for his defence, that he was tenant to the said Earl Hamilton, which confession made of a sasine was a sufficient title, quia confessio et res judicata paribus passibus ambulant, L. unica C. De confessis, et Bart in L. 6. D. Ibidem. It was answered, and reasoned among the Lords, That the said confession was not accepted by the other party, nor no instruments nor documents taken upon the acceptation of the same, and so the defender ought not to be prejudged by such a naked assertion, rather than a confession accepted by the party in judgment, and howsoever it was the pursuer could not be said to found his intention upon the defender's confession, nor upon a title, as was in the de-defender's hands, appertained to the defender. The Lords, for the most part, found, by interlocutor, that the judicial confession made by the defender, albeit it was not accepted by the pursuer, was sufficient to prove against the defender, licet nonulli fuerunt in cantraria opinione.
