Sir Francis Kinloch of Gilmerton v. William Forbes of Tolquhon
Date: 3 July 1704 Case No. No 114.
A person out of the kingdom holden as confest, upon a citation at the market cross of Edinburgh, pier and shore of Leith, as equivalent to a personal citation of one with in the kingdom.
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Sir Francis Kinloch, as having right to a decreet of furthcoming obtained against Sir Alexander Forbes of Tolquhon, as debtor to Adam Urquhart of Meldrum, pursued William Forbes of Tolquhon, as representing Sir Alexander his uncle, for payment.
Alleged for the defender, The decreet is null; for that, 1mo, Sir Alexander was held as confest, upon an edictal citation at the market-cross of Edinburgh, pier and shore of Leith, which was unwarrantable, as appears from a decision observed by Dirleton, February 5. 1665, No 38. p. 3708. And if a citation at the dwelling-house of one not personally apprehended within the kingdom be not sufficient for holding him pro confesso, because of the party's probable ignorance of what may be done in his absence; multo magis doth law presuma ignorance of what is done, in a way more remote from one's knowledge and observation, against him at the market-cross when out of the kingdom. Nor is it sufficient to say, That Sir Alexander ought to have left a procurator when he went out of the kingdom, seeing utcunque such a procurator might have appeared and defended Sir Alexander, had the citation come to his knowledge, he could not have deponed for him; 2do, The decreet is null by act of sederunt, in so far as it stands scored at the minute-book, for not payment of the dues.
Answered for the pursuer, If an edictal citation, at the market-cross of Edinburgh, pier and shore of Leith, were not a sufficient ground for holding persons pro confesso, there could be no furthcoming or constitution pursued against those out of the kingdom, but what is founded on writ; and so unjust men might defraud their lawful creditors, by withdrawing and going abroad. Nor doth the simile of an execution at one's dwelling-house not personally apprehended, hold in this case; because persons, while in the country, may, upon due enquiry, be got cited personally, whereas such as are furth thereof, are not only hard to be found, but also cannot be cited upon the warrant of any Judge of this nation, and are presumed to have settled procurators at the chief seats of justice, and where citations are appointed to be given. As to the cited decision, it doth not meet the case, for there only a warrant to cite a vagrant person, at the market-cross, in order to hold him pro confesso, was refused; 2do, The scoring in the minute-book proves nothing, being no act of a Judge; and to reduce decreets upon such a head were of dangerous consequence; for it is known, that the keeper of the minute-book lends the same daily to advocates' servants, agents, and others, whereby any decreet might easily happen to be scored in that book; and it were even too great a trust, to allow the keeper of the minute-book himself the power of annulling all sentences in his hands, by scoring at his pleasure. Again, the old obsolete act of sederunt, founded on, bears only, that in case the clerks extract a decreet that is scored for not-payment of the macer-dues, they should eo ipso be liable to the macers for the same, but doth not in the least annul the decreet.
The Lords rebelled the defences, and sustained the decreet of furthcoming.
