Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
John Morison v. John Hamilton
Date: 22 June 1708
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John Morison obtains a decreet against John Hamilton, writer in Edinburgh, for £40 Scots, before the sheriff. He suspends, That the decreet was in absence, and he only holden as confessed, and no other mean of probation against him but his oath; and therefore craved to be reponed thereto.
Answered,—The decreet was stronger than when one is simply holden as confessed; for it bore a procurator compearing for him, and himself personally present in court, and making faith, so that he might depone in the afternoon; but he contumaciously absenting, and not daring to deny the libel, decreet went out against him. Et credendum est clerico in actibus officii, where he asserts he was present.
Replied,—The decreet was null; for it bore no day assigned for his deponing: and the decerniture was ultra petita,—the libel being alternative, either to deliver back the papers, or pay the sum therein contained; and yet the sheriff most iniquiously decerned him to pay. And for his alleged compearance, the same is false, and is inserted by the procurator's servants on their parole that they shall bring in their client to depone; and, besides, he has already deponed in this cause, in another pursuit before the Bailies of Edinburgh, and denied the libel.
The Lords were displeased with that custom of marking persons present, when they are only there by their procurators; and ordered it to be rectified: but, in respect of the circumstances in this cause, they turned the decreet to a libel, and reponed the defender to his oath.
