John Goldie, Trustee of Broadholm's Creditors, v. Katharine MacDonald
Date: 13 January 1758 Case No. No 344.
Effect of a decree in absence, proceeding upon a reference to oath, and holding as confessed.
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Katharine Macdonald brought an action against John Henderson, concluding, that he should be decerned in the sum of L. 400 Sterling, uplifted by him out of Andrew Garden's executry, in virtue of powers from George Keir her husband; or, at least, that it ought to be found and declared, That the said John Henderson either wilfully, or by supine negligence, neglected to expede Andrew Garden's testament-dative; during which time her husband died, and his brother carried off the whole executory, by which she had suffered damage, and that therefore the defender ought to be decerned in L. 400 Sterling, as the value of her husband's share of Garden's executry.
No proof was produced with regard to the extent of the damages; but her procurator declared at the bar, that, in so far as the summons was not proved by writ, he referred it to the defender's oath. No appearance was made for Henderson, and decree was pronounced against him in absence.
Upon this decree an adjudication was afterwards obtained, but the sum was restricted in the adjudication to L 221 .
The Court having found that Henderson's neglect was such as to subject him in damages, No 64. p. 3527. voce Diligence, this objection against the decree of constitution was afterwards stated in a petition for the Creditors of Henderson, that it had proceeded without any evidence; that decrees in absence, as well as decrees in foro, must either be supported by a proof in writing, or by the oaths of witnesses, or by holding the defender as confessed in facto proprio, otherwise the decree is intrinsically null; that, in the present case, no proper evidence in writing was produced, with regard to the extent of the executry, nor were any witnesses examined; but the whole tested upon a reference to the defender's oath; and the decree proceeded upon holding him as confessed, in consequence of that reference; but the fact upon which he was held as confessed, so far as it regarded the extent of the executry of Garden, was not the proper subject of a reference, upon which the defender could be held as confessed; it was a fact with which he could not be acquainted, and therefore could not have made oath, had he appeared in the processs. In this situation, the pursuer ought to have taken a term for proving the libel, and have brought evidence of the extent of her claim, before insisting for decree; and therefore this decree in absence was intrinsically null for want of evidence.
In support of this, a decision was referred to, 28th December 1708, Philip, No 83. p. 12018. “where a baron having convened and decerned his tenant, in his own court, for bygone terms, and also for damages for riving out ground; and no probation being led, but only the party present, and not contradicting nor objecting; and, in supplement of this decreet, the baron taking another decreet against him before the Sheriff, where no probation was taken but the baron's decreet, the Lords reduced both the decreets as without probation, and reponed the tenant to his defences.”
“The Lords refused the petition without answers.”
Act. Johnstone.Alt. Bruce.
Fac. Col. No. 85. p. 149.
