[1584/5/84]*[print] [email] [cite] [preceding] [following]
Forasmuch as complaint being moved at the instance of tenants of lands against diverse parties by whom they are charged, poinded and distrenzied for their mails and duties, and of the parties complained upon compearing and showing his† right and title of the lands, and the other being lawfully summoned and not compearing, the party compearing is ordained to be answered and obeyed of the mails and duties of the lands being in question according to his right and title then shown and produced, not simply, but with this limitation: for anything whatsoever that the lords of council or other judges ordinary before whom the said action depending had seen, and the other party lawfully summoned and not compearing is likewise decreed to desist and cease for† all further molestation or troubling of the said tenants for anything whatsoever that the said lords then had seen, by the which decreet, the party compearing has undoubted right to the mails and duties to† the lands until he be warned at the instance of the other party and better right shown; and because many years after the giving of the same decreet the party who was lawfully summoned and by contumacy was absent has intended action for reduction of the said decreet from the beginning, and consequently, for compelling of the party, obtainer thereof, to render and restore the whole profits of the lands intromitted with by him of many years, expressly against the provision of the common law and good reason, that he who compears and obeys the judge shall be in worse case than he who contemned the judgement and absented him therefrom, for remedy whereof, it is statute and ordained that whenever the party not compearing is lawfully summoned and shows not right, he shall not be heard to retreat and reduce the said decreet nor yet shall be restored again to the same, unless he has a necessary cause of his absence and non-compearance when he was summoned, nor yet shall have any action for the past profits intromitted with by the obtainer of the decreet from the obtaining thereof; and he who obtains the said decreet shall only be obliged to answer the other party complaining in the second instance, according to the right which is then competent in his person and which he shall show and produce, viable to possess at the time of his complaint and suit and no otherwise. And that this order be kept and observed before the lords of session and other judges as is appropriate, not only in all such questions as may occur hereafter, but also in all matters of the like force begun, intended or to be intended depending and undecided before the said lords of session and other judges ordinary. It is always provided that if the party called and not compearing in the first instance be minor and have tutors and curators, he shall have his action for his damage and interest sustained by him through his non-compearance against his tutors and curators only; and if the person being minor and has no tutors nor curators shall have their remedy, to be restored fully according to the law upon reasonable causes proposed to that effect.†