A party, against whom decree has been obtained as holden confessed, may be reponed on paying expenses.
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Agnes and Ann Maxwells being pursued by the Trustees of Chalmers of Fingland, upon the passive titles, as representing certain of their predecessors, to make payment of certain debts due to Chalmers of Fingland, to which the pursuers had right by disposition from him; the passive title insisted on was, as charged to enter heir; and a day being taken for them to renounce, and that day again prorogated; and, last of all, a petition to the Lords refused, craving that the extract of the circumduction pronounced on the 21st February might be superseded till the 5th June last; and they having after all failed to renounce; the circumduction was extracted, and became a decree in foro.
Of this decree a bill of suspension was now presented, wherein it was alleged, That the complainers had never employed either the agent or procurator who had appeared for them, which was offered to be proved by their oaths; an allegeance which could not have been listened to, however such procurator and agent upon their acknowledgements might have been subjected to the complainer's damages. But another ground occurred to the Lords, namely, that in all decrees, however in foro, proceeding upon being held as confest, parties are reponed upon payment of the expense; and as there was no doubt of the complainer's now giving in a renunciation, it was remitted to the Lord Ordinary to pass the bill, upon caution.
