A decree for a random sum, where the party had been holden as confessed, was considered to be presumptive evidence of the debt, till taken off by contrary evidence.
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Elizabeth Brown, relict of Archibald Jack, merchant in Largs, obtained decreet against Robert Jack her son, and representative of the said Archibald, before the Bailie-Depute of Cuningham, for L. 1000 Scots, as her legal share of her husband's moveables. This decreet was assigned by her to Macinlay, and he insisted in a process, upon the passive titles, against the heir and relict of the said Robert, for payment of the sum contained in the decreet.
The defenders pleaded, That the decreet was not an instruction of the debt, because, 1mo, It was pronounced by an inferior Judge upon a random libel, bearing great sums and values of goods, as belonging to the defunct, of which he never was possest, and concluding against his son as vitious intromitter with his father's effects, whereas he never intromitted with any of them; 2do, A procurator compeared for Robert the defender, and denied the libel; but the decreet; did not bear that he had a mandate; 3tio, The libel was referred to oath, but no day taken for the defender, and a day only assigned; and when the day came, the pursuer restricted her libel, and the defender was held as confest. Which being the whole progress of the affair, Jack contended, That no credit ought to be given to the decreet, but that the pursuer should yet prove as in libello.
It was answered for the pursuer, That such objections against the decreet were not now relevant, when the only mean of proof was lost, by Robert Jack's death; 2do, It appeared by the decreet that the defender Robert was personally apprehended, and consequently it must stand with much better reason than a decreet against a person out of the kingdom legally cited, which decreets are every day sustained; 3tio, Though the decreet did not bear the procurator's producing a mandate, yet it did not from thence follow, that no mandate was produced; and this defect, though true, was supplied by the defender's being personally apprehended; 4to, It was no presumption against the decreet, that a great sum was libelled and thereafter restricted, that being the daily practice.
The Lords found, That the decreet was a presumptive evidence of the debt, which they sustained, except the defenders did take it off by a more clear probation.
N. B. In this cause there was a letter from the clerk of the Bailie-court of Cuningham produced to the Lords, which bore, that neither a mandate, when one was personally apprehended, nor second citation, was usual in that Court.
Act. Pat. Boyle.Alt. And. Macdorval.Clerk, Justice.
Edgar, p. 26.
