A person who had been declared rebel at a circuit Justiciary Court, upon a libel of spuilzie and oppression, and denounced rebel for non-compearance, being summoned before the Court of Session in a process for damages, the Lords found, that, by his fugitation, he was debarred from proponing defences.
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Patrick Duguid of Auchinhove was declared fugitive at a Justiciary Circuitcourt held at Aberdeen, upon a libel of spuilzie and oppression, committed by him against Elspeth Macombie, and thereupon denounced; and she pursued him before the Court of Session for her damages, of which she brought a proof; and, at advising, insisted he ought not to be heard in his defence, as not having personam standi in judicio.
Answered, A person at the horn is debarred from pursuing, but it were incongruous to summon him, and then to stop his mouth; and the practice has been to allow him to defend.
Replied, As a person at the horn cannot appear, no consequence can follow, as a certification for his contemning that summons; and thus a decreet will not be given upon holding him as confest; but the pursuer must prove his libel, which the Lords will advise, but will not admit of any compearance; and thus it has been decided. As, on the same principles, a defender in an adjudication, though at the horn, has been allowed to produce a progress, because he was specially summoned to that effect.
The Lords, 8th December, found that the defender was debarred from making any defence in this cause, by virtue of the act of fugitation, and letters of denunciation issued against him, from the Court of Justiciary, and duly executed and registered; and this day refused a bill and adhered.
Act. J. Grant.Alt. Brown.Clerk, Pringle.
Fol. Dic. v. 3. p. 237. D. Falconer, v. 2. No 113. p. 130.
