The pursuer must prove his libel, and it is not sufficient that the defender neglect to deny the libel.
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David Philp being tenant to Gilbert Menzies of Pitfoddels, in a half-net coble-fishing on the water of Dee, and also some acres of land, he pursues him before his own baron-court, and takes a decreet against him for two barrels and one half of salmon, at L. 50 Scots the barrel, and for his damage in riving out and impoverishing his land, cognosced by the verdict of the Birlawmen; and, for supplement and confirmatory of the rollment of the baron-court, he takes likewise a decreet against him before the Sheriff of Aberdeen. Which two decreets Philp suspends, on these reasons, that Pitfoddels being displeased with his renouncing his tack under form of instrument, he convened him in his own court, where, without all manner of probation, he took a decreet for extravagant quantities and prices at random, and the Sheriff proceeded on no other probation than the baron's decreet; and therefore craved to be reponed to his defences, especially seeing Pitfoddels being a notour Papist, could neither sit judge himself, nor depute another in his stead, being incapacitated by the act 1700, made against Papists. Answered, The tenant can never reclaim, for he was present in the baron-court, and acquiesced; neither can he deny the debt, or show any discharge for it; and as to his holding a court, the act cited does not disable them from judging their own tenants; and by the 45th act 1572, the exception of Popery only takes place, in such as are given up in a list by the clergy after due admonition and contemptuous refusal, which cannot be subsumed against Pitfoddels. The Lords found the decreets without probation, and therefore reponed the tenant to his defences.
Fol. Dic. v. 2. p. 182. Fountainhall, v. 2. p. 475.
