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The Lords found, That a person out of the country, being cited at the market-cross of Edinburgh, and pier and shore of Leith, upon 60 days' warning, to be holden as confest, though he was not cited personally, and that the decreet could not be questioned upon that ground as null; but if he were living, and desired to be reponed to his oath, there might be ground to repone him.
Reporter, Newbyth.Clerk, Mr John Hay.
Fol. Dic. v. 2. p. 184. Dirleton, No. 367. p. 181.*** Stair reports this case:
Thomas Logie having pursued George Buchanan for several articles of accounts referred to his oath. The defender alleged absolvitor ab instantia, That he could not be holden as confest, because he was not personally apprehended by a messenger. It was replied, That he was out of the kingdom, and cited upon 60 days, with certification to be holden as confest, according to the common consuetude, whereby all Scotsmen are liable to the jurisdiction of the Lords; and if they have any interest in Scotland, they ought to have procurators in Edinburgh, which is communis patria, to answer for them, as to all certifications, whether it be in improbations, or being fugitive for not appearing to underly the law, or to give their oaths, or to be holden as confest, and so the law holds them contumacious if they have no procurator to compear, and shew the just cause of their absence, and so purge their contumacy, in which case they will get commissions to depone abroad. It was duplied, That the certification pro confesso is only sustainable upon being personally apprehended, and not upon citation at the dwelling-house, which is more than the market-cross, especially in this case, where the articles are alleged to be several years before the defender went out of the country, and no citation till immediately after he was gone.
The Lords held the defender as confest, upon the citation at the market-cross of Edinburgh, &c. but allowed him commission to depone abroad, if his procurator did desire it.
Stair, v. 2. p. 437.*** Gosford also reports this case:
In an action betwixt one Buchanan and Logie, this general point was considered, it a party absent, out of the country, and the libel referred to his oath may be holden as confessed. The citation being upon 60 days, the reason of the doubt was, that it was looked upon as a principle, that no party can be holden as confessed but such as are cited personally apprehended. The Lords did find otherwise by their interlocutor, upon the reason that it might be a general prejudice to all trust and commerce, seeing defenders, who were sure there could be no other probation against them by writ or witness, might so dispose upon their affairs as to retire out of the country, of purpose to defraud their true and lawful creditors.
