Consequence where a defence has been dolose emitted.
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Burnet having pursued M'Clellan for payment of a debt of his son's, as behaving himself as heir to his son, by intromission with the duties of the lands, wherein his son died infeft, and litiscontestation being made, and the cause come to be advised; the defender alleged, That he could not be decerned as heir to his son, because he instantly verified, that he had another son, who is now instantly at the Bar, who did exclude him.—It was answered, That this defence is not competent in this state of the process, though it be instantly verified, because it cannot be pretended new come to his knowledge, seeing the father could not be ignorant that he had another son; so it was dolose omitted, to postpone the pursuer, who hath run a course of probation by witnesses. And the cause being now concluded,
The Lords, before answer, having proponed to the son, whether he would suscipere judicium, and answer in this process, as if he had been cited, which he having undertaken, the Lords assoilzied the father, and allowed the pursuer to insist against the son upon the passive titles, and him to make his answer thereto.
Stair, v. 2. p. 318.*** Dirleton reports this case:
A Father being pursued, as behaving himself as heir to his son, and litiscontestation being made, and witnesses adduced; the time of the advising, it was alleged, That the father could not represent his son as behaving, because the defunct had a brother, who was produced, and at the Bar: Whereto it was answered, That, in hoc statu, the defence was not receivable; and it could not be said to be noviter veniens, seeing the father could not be ignorant that he had another son.
The Lords, in respect of the state of the process, would not receive the defence, though verified instanter, unless the son would suscipere judicium, and be content that the process should proceed as against him; which appears to be hard; seeing that which was to be proved was not only that the defender intromitted, but that he was apparent heir; and in casu notorio, no probation was to be respected to the contrary; and though the father could not but know that he had a son, yet he might be ignorant that his son would be preferred to himself, as to the succession of his own son; and in damno vitando, ignorantia juris is excusable.
