The judge ought to pronounce a distinct interlocutor upon the relevancy of the libel and defences.
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In a decreet obtained by James Hume against Christian Hume, as intromissatrix with her husband's goods, for her husband's debts, before the Commissary of Lauder, and given parte non comparente, and upon contumacy, for not compearing to give her oath, the summons being referred thereto, and she summoned to that effect, was reduced upon this reason, viz. because she was not summoned by a messenger, nor yet by the ordinary officer of Court, but by a common boy; and also, because there were diverse defences given in by the defender's procurators for her, which were neither repelled nor admitted, and so not discussed in process, nor no minute therein bearing litiscontestation to have been made, as ought to have been; for albeit the defences were noways relevant, but in effect a denial of the libel, and that the libel was referred to the party's oath of verity, and that she was summoned to that effect, which the obtainer of the sentence alleged to be in effect litiscontestation, and that the defence needed to be proported in the process to be repelled, being only the denying of the libel in substance; yet the Lords found, That the Judge ought to have given his answer formally to them, and should have repelled them, and admitted the libel by his signature, and therefore, that not being done, the sentence was reduced.
Act. Craig.Alt.—.Clerk, Gibson.
Fol. Dic. v. 2. p. 182. Durie, p. 669.
