Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XVIII.

Decrees in Absence.

Coll Macdonald
v.
The Common Agent in the Sale of Kinloch

Date: 4 February 1790
Case No. No 346.

Effect of a decree in absence obtained in the Court of Session, not preceded by a personal citation of the defender.

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In the year 1764, the predecessor of Coll Macdonald instituted an action in the Court of Session against the late Mr Bruce of Kinloch, for payment of money alleged to be due as the price of certain articles furnished to the defender much more than three years before.

The execution of the summons in this action bore, “That the messenger had left a copy of the citation in the key-hole of the door of the defender's dwelling-house, because he could not get access, the door being locked;” and a decreet in absence was regularly obtained and extracted.

Mr Bruce, the defender, died in 1784. By this time, his affairs had gone into disorder; a process of sale of his estate, and for ranking his creditors, had been brought, when the decreet already mentioned was produced; but the Lord Ordinary not considering it as a sufficient voucher of debt, refused to give it a place in the ranking. Coll Macdonald reclaimed, and

Pleaded; The statutes of 1672 and 1693, introducing the modern form of summons in the Court of Session, have communicated to it the full effect of both the first and second summonses formerly in use; and as the last of these contained a special reference to oath, a decreet in absence obtained in that Court cannot, after the death of the defender, be set aside for want of evidence. It is true, that the decisions hitherto pronounced have related to cases where the defender had been personally cited. But this circumstance does not seem to be of any importance. A citation at the dwelling-house, or even an edictal one at the market-cross of Edinburgh, and pier and shore of Leith, has been, by special enactment, declared to be equally formal with one executed against the defender in person; and thus it must be held præsumptione juris et de jure, in all cases where the statutory solemnities have been observed, that the defender has been sufficiently put on his guard. Indeed, as it was not formerly necessary to execute the second summons against the defender in person, provided the citation was given by a messenger at arms; to require this now to be done, would be to introduce an additional formality, where the legislature meant an abridgement of those formerly practised, act 1537, c. 75.; 23d July 1789, Blair contra the Common Agent in the sale of Kinloch, No 345. p. 12194.

At the time when this reclaiming petition was under consideration, it appeared from the sale of the estate of Kinloch, that after paying the whole debts, including the one here claimed, there would be a reversion to the representatives of Mr Bruce.

The Court, however, were of opinion, that the judgment of the Lord Ordinary was well founded. A decreet of the Court of Session, pronounced in the absence of the defender, if preceded by a personal citation, it was observed, had been long considered as unchallengeable after his death, and adopting of a different rule might give occasion to much embarrassment and injustice. but where the defender had not been personally cited, and where it was at least a possible case that he was equally ignorant of the decreet as of the summons on which it was founded, it would be hard, and in many cases extremely unjust, to hold the proceedings as legal evidence of a claim otherwise unvouched.

The Lords refused the petition without answers.

Ordinary, Lord Ankerville. Act. Smyth. Clerk, Menzies. Fac. Col. No 108. p. 203.