Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Robert Hay v. Alexander Home of Blackburn
Date: 28 January 1665
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William Home of Suinewood by his bond grants him to have borrowed from Thomas Hay, tailor in the Canongate, seven score pounds in 1624. This bond is registered in 1641; and assigned by the said Thomas to his son Robert Hay, also tailor, in 1654; who now pursues Alexander Home of Blackburn, as son and heir to the said William, granter of the bond, and upon the other passive titles.
It is alleged for the defender, that no process can be sustained upon the extract of the bond, because the same was registered after the decease of the said William, granter thereof, whereunto no procurator could have consented for him, he being dead; and so the same extract cannot prove, neither ought to be respected till the principal be produced. Which allegeance the Lords having considered, they ordained by their interlocutor, the pursuer to condescend upon adminicles, (if he had any) for instructing of the verity of the said bond libelled. Conform to which ordinance, the pursuer's procurator condescended upon that he had an arrestment raised upon the said bond, which is a sufficient adminicle.
This condescension the Lords found not enough; therefore ordained the pursuer to produce the principal bond before sentence.
Which the pursuer doubting how he might do, at the next calling of this cause, the pursuer, in fortification of his said libel, offered him to prove by the defender his oath of verity simpliciter, that the debt acclaimed by the said extract was a true debt yet resting; and that it consisted in his perfect knowledge to be so; and that he had promised to meet with the pursuer to take order for payment thereof.
Whereunto it was answered for the said defender, that he was not obliged to give his oath as was craved, seeing the foresaid summons is not so libelled against him; and unless there were a new summons raised, he is not obliged to answer to these particulars the pursuer would refer to his oath.
Whereunto it was replied, that it was in supplement of his summons, he was content to refer the said points to the defender his oath; igitur.
Which the Lords having considered, they, by the act of litiscontestation, find the said points probable by the defender his oath; and, therefore, assign the pursuer a day to warn him personally to compear personally to depone, both anent the passive titles and anent the truth of the debt referred to his oath. Upon which act letters are directed whereby he is summoned, personally apprehended; yet failyieing to compear, he was holden as confest, and decerned as heir to his father, et aliis nominibus, titulis passivis et alternativis quibus supra, to pay the said Sum. This decreet is twice in the register.
Act. Mr. Lawrence Oliphant.Alt. Mr. Rodger Hog.
Signet MS. No. 32, folio 46.
