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Scottish Court of Session Decisions >>
Graham v Smith. [1672] Mor 12030 (21 November 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor2812030-103.html Cite as:
[1672] Mor 12030
Effect, as to heirs, where the party held as confest has died, in cursu of an attempt to be reponed.
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John Stachan having obtained decreet against umquhile Smith, upon this ground, That the pursuer's father having, in the time of the late troubles, a considerable sum of money by him, did (for fear of its being taken away by the soldiers out of his house) hide it there, and shortly thereafter died; and the said Smith having entered to the possession thereof as tenant, intromitted with the money which he had found hidden therein; whereupon Smith was holden as confest and decerned; but did not compear, neither was there a day taken to produce him; and so soon as he knew, he suspended; but before the suspension was discussed, he died; Strachan now pursues a transference of the said decreet against the defunct's children; who alleged, That this decreet being in absence, the defunct using all diligence to be reponed, and having, upon his death-bed, before ministers and gentlemen, solemnly cleared himself, by oath, of any such intromission, and thereupon reduction of the decreet being now raised, the same ought to be reduced. It was answered, That albeit the Lords, upon such a ground, might repone a party to his oath, yet this party being dead, and the mean of probation perished, he cannot be reponed; and, in fortification of the decreet, it was offered to be proved by one witness that saw the defunct find the money, and intromit therewith, though he knew not the quantity.
The Lords, considering the decreet was in absence, and suspended de recenti, and that the defunct had sworn he intromitted with no such money, they turned the decreet into a libel.
