Where the party has purged the mora, although he die in the inferim before deponing, decree will not be allowed to go out without a new circumduction.
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Thomas Kincaid being creditor to Somervell of Gladstanes, he arrests, in Hugh Blair Dean of Guild of Edinburgh's hands, as debtor to the said Somervell, and pursuing a forthcoming, and a day being taken to produce him to depone, the term is circumduced against him, which the said Hugh being advertised of, he comes in, and makes faith, and offers to depone; but the act not being there, it is delayed till another time, and witnesses avisandum is put up in the minute-book. This being in the end of a Session, before the next, the said Hugh dies. At the sitting down of the next Session, Thomas Kincaid and Thomson, his assignee, crave out the extract of their decreet of circumduction. Alleged, There can be no decreet, because it was passed from by his subsequent compearing, and making faith. Answered, This is not sufficient, unless he had actually deponed; and if the coming in to make faith stopped decreets, then they would always offer themselves, as if they were ready, and so delay causes long enough; and now by his death the mean of probation of their debt is lost, et non debet lucrari ex sua culpa.—Replied, That it is a certain principle in form, that after a party compears and makes faith, the former decreet of circumduction cannot be extracted, till the act be of new called again, and the circumduction craved de novo; likeas, these arrestments being libelled at random, that you owe their debtor to 10 or L. 20,000 Scots, it were an intolerable stretch that, on such a circumduction, afterwards loosed by the party's offering to depone, a party's heir shall pay the vast sum, where truly he owed nothing; and though there may be an inconvenience to assoilzie, where it may be he was truly debtor, yet that may be remedied by your calling and circumducing of new, or by proving the debt by his count-book, or otherwise, though the mean of probation by his oath is indeed perished. The Lords considered, where a defender is truly contumacious in a process where a libel is referred to his oath, and a decreet is thereupon extracted against him in his own life-time, and no endeavours used by him to be reponed against the same before extracting, it is just that such a decreet should stand as a fixed evident against his representatives after his decease; because not only is the mean of probation now lost by his death, but law strongly presumes, that if the defender had compeared, he would have acknowledged the libel, and therefore he absented himself; but here the Dean of Guild had shewed himself willing to depone, and had actually made faith, and so purged the former mora; and so they not having of new circumduced the term against, him, the Lords refused to give out the decreet, but prejudice to them to instruct him debtor by his count-book, or any other manner of way. If the Lords had observed any collusion, or tergiversation in his deponing, they would not have so clearly liberated him, but there appeared none.
Fol. Dic. v. 2. p. 186. Fountainhall, v. 2. p. 115.
