The Trustees of Donald Sutherland v. The Honourable Mrs Clementina Lockhart, and Others
Date: 4 February 1790 Case No. No 347.
Effect of a decree in absence obtained in an inferior Court, where the defender has not been personally cited.
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The deceased Donald Sutherland sued George Sinclair in the Sheriff-court of Caithness, for payment of money said to be due by an open account, which had lain over for more than three years.
In this action, Mr Sinclair, the defender, was not personally cited; and the decreet which followed was pronounced without any appearance on his part. But in the course of certain proceedings in an action of multiplepoinding, which were afterwards held in the Court of Session, where he had an opportunity of objecting to the claim founded on this decreet, and where he offered several objections to other claims which were made against him, no notice was taken of the way in which this decreet had been obtained.
After the death, however, of Mr Sinclair, an objection was stated by Mrs Clementina Lockhart and others, who had succeeded to him, and who contended, that a decreet such as this, obtained in absence, without citing the defender personally, and upon a claim which, in consequence of the statute of 1579, could only be verified by the oath or writing of the party, could be of no avail.
The difference between this case and those mentioned above, was, that the decreet had been pronounced in an inferior court, to which the enactments in 1672 and 1693 did not apply. The general argument being much the same in all of them, it must be unnecessary to repeat it. The rules established with regard to decreets in absence seemed to be these:
1mo, That a decreet in absence proceeding on a personal citation, could not, after the death of the defender, be challenged for want of evidence.
2do, That where a decreet in absence had been preceded by no personal citation, unless the pursuer had, by the authority of the judge, intimated to the defender his resolution of making a reference to oath, it was competent, not only to the creditors, but also to the representatives of the defender, to bring it under challenge at any time, and that it would be necessary for the pursuer to support the decreet by the same evidence which would have been required, if appearance had been made for the defender.
3tio, That even where the defender had not been cited personally, and where there had been no intimated reference to oath, a decreet in absence would be sustained after his death, if it appeared that, after having a proper opportunity of objecting to the proceedings as having been held without sufficient evidence, he had allowed them to pass without challenge.
In this case, where the defender had omitted to call in question the validity of the decreet, when such circumstances occurred as must have led him to do so, if he had considered the claim to be an unjust one;
The Lords adhered to the judgment of the Lord Ordinary, which “over-ruled the objection to the decreet.”
Lord Ordinary, Lord Rockville.Act. Macleod Bannatyne, Dalzell.Alt. Honyman.Clerk, Menzies.
Fac. Col. No. 109. p. 205.
