Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. V.

Holden as confessed - Confessing or denying.

M'Kewar
v.
Vernor

Date: 20 June 1673
Case No. No 104.

Parties out of the country may be held pro confesso upon a citation at the market cross of Edinburgh.

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In a pursuit at M'Kewar's instance, as assignee to a bond made by Vernor, for payment of the sum therein contained, it being alleged, That the assignation was to the behoof of the cedent, which was offered to be proved by his oath, and that it was offered to be proved, by the cedent's oath, that he was debtor in as much; whereupon he was holden as confessed, because he was not personally apprehended the time of the citation; in which case, only decreets can be given holding a party pro confesso; it was answered, That, the time of the citation, the cedent was out of the country, and was cited upon sixty days; so that it was impossible to cite him personally apprehended. The Lords did sustain the answer, and ordained the decreet to be extracted; seeing, if it should be otherwise, it were an easy way for creditors to assign, albeit satisfied, and immediately to go out of the country, whereby no probation could be had by their oath for payment of the debt.

Fol. Dic. v. 2. p. 183. Gosford, MS. No 595. p. 340.

*** Stair's report of this case (Somerville against———) is No 5. p. 8325 voce. Litigious.