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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Simon Fraser v John Welsh. [1777] Hailes 743 (17 January 1777)
URL: http://www.bailii.org/scot/cases/ScotCS/1777/Hailes020743-0443.html
Cite as: [1777] Hailes 743
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[1777] Hailes 743
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ADJUDICATION.
Date: Simon Fraser
v.
John Welsh
17 January 1777 Click here to view a pdf copy of this documet : PDF Copy
[Supplement, V. 458.]
Braxfield. There is nothing in the objection as to the decreet of constitution. The debtor was called and did not appear: hence the presumption is that he acknowledged the debt. Still the creditors might be heard to object; but the decreet is ex facie good. There is no occasion for producing the decreet of constitution in the adjudication.
Kennet. I should incline to think that the creditors are in a more favourable case than the common debtor.
Kaimes. If I take a decreet, just libelling L.50 resting owing, without saying why, the decreet is good, because the libel is understood to refer to the oath or acknowledgment of the debtor. Will it make any difference if the libel should add, that such a sum is owing by a bond? I think not; for still the acknowledgment of the debt is presumed.
President. Mr M'Intosh is cited, and he is expressly held as confessed, on a narrative of all the debts.
Monboddo. If no ground of debt had been libelled, there would have been a difficulty; but there is none in the present case.
On the 17th January 1777, “The Lords repelled the objection.
Act. D. Rae. Alt. A. Elphinstone. Reporter, Justice-Clerk.
The electronic version of the text was provided by the Scottish Council of Law Reporting