Scottish Court of Session Decisions

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

Grant of Corimony
v.
Mackenzie of Suddie

Date: 11 December 1678

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[See page 236.]

In a suspension and reduction, at the instance of Mackenzie of Suddie, and Grahame of Drynie, against Grant of Corimony, of a decreet of spuilyie pronounced by the Lords, upon probation by witnesses, which is before mentioned, debated and decided upon the 30th day of November last: It was further alleged, for Mackenzie of Suddie, that the foresaid decreet, as to him, was in absence: for, though the process was returned by Mr Roderick Mackenzie, junior, indefinitely for the defenders, yet it is offered to be proven by his oath, and he hath already given his declaration, that he was never employed nor informed by Suddie; and therefore, being to him as a decreet in absence, the Lord sought again to consider the testimonies: by which it would appear, that there was not any thing proven against him.

It was answered, 1mo. That when an advocate doth return a process for the defenders, if his oath or declaration may loose that, it would insecure all the decreets in foro: for though that hath been sometimes sustained before subscribed returns, when it depends merely upon the clerk to mark for whom advocates compeared, yet it neither hath, nor can be admitted, since advocates have been accustomed to subscribe the returns of processes, and so may, by the return, declare for whom they compear: but when it is indefinite for the defenders, it must be for all or none of them. 2do. Though the decreet had been without all compearance,—the spuilyie being proven by witnesses,—there can never be a reason sustained, that it was not proven without publication of the testimonies, and without redarguing the Lords with iniquity. And therefore, though, in decreets in absence, defenders may be heard when the probation was by writs, which are always published, and not so accurately considered in absence; or though the party absent may propone a defence eliding the libel, though proven: yet, it being the Lords' sole trust to advise probation by witnesses with close doors, without publication or dispute upon the testimonies, wherein they use a like accuracy in all cases, seeing the parties are not to know what are in the same testimonies; therefore they can sustain no reasons against the probation by witnesses, even in decreets in absence.

The Lords repelled both these reasons, and adhered to the decreet, and found the letters orderly proceeded.

Vol. II, Page 656.