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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Boyd v Boyd. [1772] 5 Brn 425 (00 July 1772)
URL: http://www.bailii.org/scot/cases/ScotCS/1772/Brn050425-0390.html
Cite as: [1772] 5 Brn 425

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[1772] 5 Brn 425      

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 DECREETS.

Boyd
v.
Boyd

1772. July.

Click here to view a pdf copy of this documet : PDF Copy

Many disputes have happened,—whether a decreet is to be considered as a decreet in foro or decreet in absence. The regulations 1672, § 19, declare, That, where there is compearance for a party, and defences proponed, the decreet shall be considered as a decreet in foro. The effect of which is, to bar suspension or reduction on grounds competent but omitted. Bare compearance therefore, without proponing defences, does not make a decreet a decreet in foro. So it was argued, July 1772, Boyd against Boyd,—wherein a decreet in absence having been pronounced, the defender gave in several representations against it, not setting forth peremptory defences in causa, but craving to be heard upon them.

A stronger case occurred:

In this case, decreet in absence having been pronounced against Baird and Lauder, they represented, craving to be heard, and at last gave in a representation on the merits; but failing to compear, when called, to support their representation, the Ordinary, Lord Kaimes, adhered to his former interlocutor. A suspension of this decreet was passed, after a good deal of struggle, and, upon discussion, redress was given.

Minister and Kirk-session of Borrowstownness.

Where a decreet is extracted irregularly, or disconform to the warrants, redress may be obtained by a summary complaint; and, upon cause shown, theLords will recal it. But where a decreet is extracted regularly, and the irregularity lies in the charge, the remedy is by suspension, and a complaint is not competent Fount. Vol. I. page 228, Burnet, 24th November 1764.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1772/Brn050425-0390.html