Scottish Court of Session Decisions

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

Vans
v.
The Lady Bairfoord

Date: 23 November 1677

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George Ross, having obtained decreet against the Lady Bairfoord, she suspends, and raises reduction, and craves to be reponed to her oath;—and Alleges, That she never received advertisement to compear to depone; whereupon she offers to make faith. Her advocate also disclaimed his compearance, and alleged that the decreet was made up by collusion; and that she and her son, being both called for a debt of her husband's, and both decerned, the compearance might have been only for her son.

It was answered, That, albeit the Lords do ordinarily repone parties to their oath, when they are holden as confest, and compear not, yet, where they compear, produce writs, and dispute, such parties cannot be reponed; especially in prejudice of singular successors, acquiring bona fide, for onerous causes, and resting upon the Lords' decreet in foro. Neither can any respect be had to the advocates' disclaiming of their appearance, or dispute; which would evacuate all decreets. But, if any collusion can be proven, it must be per membra curiæ, by the Lords or clerks, whose assertions, ex intervallo, long after decreets are extracted, will not be received against the same, but the oath of the party only; unless it were in the time of extracting, or immediately after. And, in this case, advocates cannot disclaim their compearance, seeing the decreet bears, “writs produced for the defender;” and, as to the son, there is nothing said for him at all.

The Lords ordained the clerks to be examined upon oath.

Vol. II, Page 563.