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.
Caldwell's Relict v. Captain Dunbraiken
Date: 24 December 1708
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The relict of Caldwell pursues Captain Dunbraiken, in the Town-guard, for payment of several particular sums libelled against him, and referred to oath: And a day being taken by his advocate to produce him to depone, the term is circumduced against him, and the decreet extracted: Whereon he gives in a suspension, on thir reasons,—That he never heard of the cause, and was at London the time of the circumduction, as a testificate and declaration, given in by him, bears: and, looking now on the libel, he finds a good part of the account is for a debt owing by Alexander Henderson, wherein he has no manner of concern, save that he married his widow: and that the decreet is stolen out against him in the crowd of many other debtors, there being eight called besides himself, expressly contrary to the regulations discharging any more but six to be put in one summons.
Answered,—She oppones her decreet in foro, where a day is taken to produce him; so that all the defences now proponed are competent and omitted, so not receivable by the Act of Parl. 1672. And his testificate bears, he was at London in June, whereas this circumduction was in February, when he was within Scotland; and if such sham excuses were once allowed, no decreet on circumduction would stand fast. And, though it was a good dilator that more than six were accumulated in one summons, yet, not being proponed, it is plainly passed from; for, quilibet potest renunciare favori pro se introducto.
The Lords thought a decreet, where no defence was proponed against the debt, but only a day at random taken, was the slenderest of all decreets and easiest loosed, where there was no other probation but by oath. Therefore they reponed the Captain; but modified ten dollars to be immediately paid to the charger for the expenses he had put her to; and though a part of the debt was his wife's former husband's, yet the pursuit might be just if she represented him by any passive title.
