Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Veitch v. Carlile of Boytach and Gordon
1695 and
1696.
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1695. February 28.—In a competition between Veitch and Carlile of Boytach, it fell to be debated, How far this was a nullity in a decreet, that it bore the defender was personally apprehended, and was holden as confessed; and now, after sixteen years, and after an adjudication led upon it, another creditor raises a reduction; and, calling for the grounds and warrants, he finds the execution to have been done at the defender's dwelling-house, and not personal, as the decreet bore; and so craved to be preferred.
The Lords balanced long the inconveniencies on both hands: For, 1mo. They considered, after so long a time, one is not able to produce the executions of his summons whereon a sentence followed; but, if he do, and there be found any nullity or disconformity with the decreet, then it is upon his own peril. 2do. The extractors ought to be cited, to answer either for their fraud or ignorance in giving forth a decreet contrary to their warrants. 3tio. That, in such cases, an execution, bearing he was personally apprehended, might be stolen out from these obscure persons, prevailed on by a little money, and a null and insufficient one put in its place. 4to. That, if the defender compeared and proponed other defences in the adjudication following on that decreet of constitution, and said nothing against the debt, nor craved to be reponed, that was a clear confession and homologation; and another creditor of his cannot, after so long a time, quarrel that decreet. But, 5to. It is of the highest importance if I once get out a decreet which has no warrants nor foundation from the minutes, because I have assigned it to a third party, therefore, that it cannot be regulated nor controlled against me by the minutes; and there shall be no redress, but such a sham decreet shall stand; and an extractor shall be master of the security and property of the subjects.
The Lords resolved to hear this case argued, and superseded to give answer till then.
Vol. I. Page 675.
1696. February 4.—The Lords heard the cause between Veitch, Carlile of Boytach, and Gordon in Dumfries, mentioned 28th February 1695; and, having balanced the inconveniencies on both hands, they sustained the decreet, holding Boytach as confessed; and repelled the nullity that it was extracted disconform to the warrant,—the second execution bearing expressly that he was not personally apprehended, but only at his dwelling-house, so that he could never, on that citation, be holden confessed; in respect, an adjudication being deduced on that decreet, Boytach compeared therein, and craved a term to produce a progress, but craved not to be reponed to his oath; and that it was now, after many years, come into the person of a third party and a singular successor; and Boytach was now become bankrupt; and the party might very likely lose his debt if it came to his oath; and the first execution bore him to be personally apprehended. All which circumstances the Lords conjoined. But the Lords would have examined the clerk, extractor, and messenger, if they had been alive;—but it was represented they were all dead; and the Lords thought the clerks and extractors ought to be liable in damages in such cases, because of their malversation.
