Cochran of Preistgill and Dykes of Halburn, v. James Urquhart of Knockleith
Date: 12 June 1705 Case No. No 10.
A person was held as confest upon a personal citation, tho’ there was only a warrant for edictal citation, because a warrant for edictal citation includes a personal citation.
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In the action at the instance of Cochran of Preistgill, and Dykes of Halburn, against James Urquhart of Knockleith, as donatar to the forfeiture of Halburn, for repetition of a sum paid to him as a composition for transmitting the gift of forfeiture to Preistgill, with annualrent from the Parliament 1690, the pursuers contended, That the disposition of the gift bearing for onerous causes in general, infers that the donatar received near to the value of the lands, and Halburn's oath should be taken on the composition.
Answered for the defender, Heritors buying back their own forfeited lands, or friends for their behoof, always get an easy bargain; and, what was given, must be proven by the donatar's oath who received it, since the writs bear not the particular sum.
The Lords found the pursuers behoved to prove by Knockleith's oath, the quantity of the sum given for the composition.
Upon this the pursuer craved, That Knockleith might be holden as confest, although not personally apprehended; since it appeared from the execution, that he had industriously absconded.
The Lords granted a diligence to cite him edictally at the market-cross of the head burgh of the shire, and at the parish church door.
A messenger finding him accidentally, gave him a copy by virtue of this warrant, as personally apprehended; upon which, the pursuers craved he might then be holden as confest.
Answered, That could not be, since there was no warrant for a personal, but only for an edictal citation.
Replied, That a personal citation includes the edictal, as being something more, and a better certioration; the warrant for an edictal citation having proceeded allenarly on a supposition of the parties lurking and keeping out of the way, so as he could not be apprehended personally.
The Lords held him as confest; but declared, That if he came in to depone betwixt and a certain day, he should be received.
