Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. collected by JAMES BURNETT, LORD MONBODDO.

Colquhoun
v.
Cheesly

Date: 26 February 1767

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A man was served and retoured heir in general to his father. A creditor of the father brought a process of constitution against him, in which he libelled upon all the passive titles, and particularly that of being served and retoured. The defender was personally cited, and decreet in absence was taken against him in common form ; but the extractor omitted in the extract to say that he was holden as confessed upon the passive titles, for as to the grounds of debt they were produced. This decreet was made the ground of an adjudication, which being produced in a ranking and competition of creditors, it was objected that the decreet of constitution upon which it proceeded was void and null, because there was no proof of the passive title. It was said that it was as necessary that the passive title should be proved as the debt; that in this case it might have been proved by producing an extract of the retour from Chancery, or by holding the defender as confessed, which no doubt might have been done, as he was personally cited, not otherwise, unless he had been out of the country: That, in such cases, the custom of old was that the libel bore a reference to the oath of the party, and he had a day assigned him for deponing, upon which, if he failed to appear, he was very properly held as confessed; but in modern practice this is extremely abridged, for the defender is not cited to depone, no day is assigned for him to depone, and neither in the minute, nor in the decerniture of the Judge, is he held as confessed, but, in the extract of the decreet, this is put in by the extractor. Now, though in this manner the practice has become very irregular and slovenly, yet it would be departing still farther from the ancient form if the Court should dispense even with the operation of the extractor.

The Lords found the adjudication and decreet of constitution null and void, though some few examples were produced of decreets extracted in the same way; dissent. Coalston et Gardenston, who thought it was better, either to return to the ancient practice, which was proper and regular, or to give up the modern practice altogether, and to hold, that, where the decerniture is personal, the simple decerniture is sufficient to hold him as confessed, without the operation of the extractor, for which there is no warrant from the Judge.