Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. V.

Holden as confessed - Confessing or denying.

Lindsay, and Swinton her Spouse,
v.
Inglish, Supplicant

Date: 5 July 1670
Case No. No 102.

What kind of citation, to warrant holding as confest?

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——— pursued his debtor, and craved him to be holden as confest, who not compearing, the clerk was not clear to give out a decreet, because the messenger's execution did not bear, that the defender was personally apprehenced, but that the messenger came to his house and knew he was within and was forcibly kept out by his wife, and thereupon protested that the defender might be holden as personally apprehended. Upon the clerk's stop, the pursuer gives in a supplication, desiring that he might either have out his decreet, holding the defender as confest upon this execution, or that he might have a warrant to cite the defender at the market-cross of the shire or burgh where he dwells, as being difficilis conventionis. Some were of opinion that he should be holden as confest, the messenger proving that he was within, or if the execution had borne that he and the witnesses also had given a particular evidence of their knowledge of his being within; others thought that he should be holden as confest, unless the defender could instruct he was alibi in regard of the contumacy; but the most resolved that holding as confest being a solemn and important certification peculiar to Scotland, that this assertion of the messenger's and his execution should not be sufficient, nor should put the defender to allege alibi, but that he should have a warrant to cite at the market-cross, with certification to be holden as confest.

Fol. Dic. v. 2. p. 183. Stair, v. 1. p. 688.