Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Hector M'Kenzie
v.
Grant

Date: 26 January 1675

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Alexander M'Kenzie, having obtained a decreet of registration against Grant of Glenmoristoun, as representing his father upon the passive titles, Hector, as heir to Alexander, pursues transference. The defender alleged Absolvitor; because the decreet of registration is null, in so far as it bears, That the defender was holden as confessed, being lawfully summoned; and doth bear, By a messenger-at-arms, personally apprehended; and therefore is null; because no party is ever holden as confessed upon another citation: and, therefore, decreets do still bear, that parties were holden as confessed, because they were lawfully summoned by a messenger-at-arms, “personally apprehended.” It was answered, Though it useth to be expressed, and, being quarrelled de recenti, might be a ground to recal or reduce the decreet, when the executions would be found to instruct whether it was personally by a messenger or not, yet the decreet of registration being obtained in anno 1648, and never quarrelled till now, that there is a reduction raised; the same cannot be found null; because, in actis judicialibus, omnia presumuntur sollenniter acta. And, in this decreet, the defender was compearing: and it cannot be presumed that the defender's advocate would have suffered him to have been holden as confessed, if the citation had not been truly given, personally, by a messenger; which being obvious, and omitted, the decreet, after so long a time, cannot thereupon be annulled. The Lords sustained the decreet, unless the defender, upon his reduction, would offer positively to prove, by the executions, that the citation was not by a messenger personally.

Vol. II, Page 310.