Case where the party being out of the country must have been ignorant of the citation.
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Thomas Wright in Leith having pursued James Wright for the price of a ship pertaining to him, and which the defender had sold for a price within the just avail, the ship being only disponed by the pursuer to him upon trust; this summons being referred to the defender's oath, and he summoned and holden as confest for not compearance, and decreet given against him for the price of the ship libelled; whereupon the defender, who was not within the country when he was summoned to give his oath, raising summons at his home coming, which was divers years after the sentence, and desiring to be reponed and his oath to be received, seeing that citation was only executed against him upon sixty days, he being then in Muscovy, whereby the citation could not come to his knowledge, and thereby could not be called contumax; it were great rigour that a decreet should stand against him for so great a sun above his value, and exceeding the worth of the ship; specially seeing the ship came again in the hand of the same party's creditor, viz. Robert Monteith, who sold the same if another person, with express consent of the said Thomas Wright, and the price recovered therefor was converted to his own use, viz. for payment of his debts; and the party alleging, that this would invert the inviolable practice, if parties should be reponed against such decreets for being out of the country when they were cited; for such sentences are as lawful as if the party had been cited within the country, they being absent for their own private negotiation; and if either the party holden as confest so decerned should die, or that execution should follow thereupon, it were a dangerous preparative to make such sentences to fall, but specially in this case, where, after the party's citation to give his oath, his procurator compeared and obtained divers long diets assigned to exhibit him, which depended more than a year, in which time he might have conveniently advertised, or craved commission to the Judges where he was to take his oath, if there had been reason for granting the same; notwithstanding whereof, the Lord found that he ought to be reponed, and restored him to the giving of his oath, specially seeing nothing had followed upon the decreet, and seeing it was confessed by Thomas Wright that he had consented to the posterior alienation of the ship, and that the price was given to his creditors.
Act. Nicolson.Alt. Mowat.Clerk, Gibson.
Fol. Dic. v. 2. p. 184. Durie, p. 497.*** Auchinleck reports this case:
James Wright being pursued by Thomas Wright, and in the said James's absence out of the country, he is held as confest. After three or four years absence, he returned and meaned himself to the Lords, and craved to be reponed to give his oath, being, the time of his absence, in Muscovy, where he could receive no advertisement; and the matter whereupon he was to depone was so clearly untrue, that it were great injustice to decern him as confest for contumacy. The Lords, after trial of the whole matter, found he ought to be reponed, although it is contrary to the daily practics.
