[1772] 5 Brn 425
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 DECREETS.
Boyd
v.
Boyd
1772 .July .Click here to view a pdf copy of this documet : PDF Copy
Many disputes have happened,—whether a decreet is to be considered as a decreet in foro or decreet in absence. The regulations 1672, § 19, declare, That, where there is compearance for a party, and defences proponed, the decreet shall be considered as a decreet in foro. The effect of which is, to bar suspension or reduction on grounds competent but omitted. Bare compearance therefore, without proponing defences, does not make a decreet a decreet in foro. So it was argued, July 1772, Boyd against Boyd,—wherein a decreet in absence having been pronounced, the defender gave in several representations against it, not setting forth peremptory defences in causa, but craving to be heard upon them.
A stronger case occurred:
In this case, decreet in absence having been pronounced against Baird and Lauder, they represented, craving to be heard, and at last gave in a representation on the merits; but failing to compear, when called, to support their representation, the Ordinary, Lord Kaimes, adhered to his former interlocutor. A suspension of this decreet was passed, after a good deal of struggle, and, upon discussion, redress was given.
Minister and Kirk-session of Borrowstownness.
Where a decreet is extracted irregularly, or disconform to the warrants, redress may be obtained by a summary complaint; and, upon cause shown, the
Lords will recal it. But where a decreet is extracted regularly, and the irregularity lies in the charge, the remedy is by suspension, and a complaint is not competent Fount. Vol. I. page 228, Burnet, 24th November 1764.
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