Tenor of the Brieve. - Form of proceeding. - Reduction of Service. - Can a Service be stopped by an offer to prove a nearer Heir?
Gadzearth v. Sheriff of Ayr
1583.
April. Case No. No. 8.
If one of an iuquest maliciously absent himself, the rest cannot proceed, and therefore warrant will be granted to appointanother.
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The Laird of Gadzearth having summoned the sheriff of Ayr, and certain other persons, to lie upon an inquest for the apprising of a reversion made to the said sheriff by Gadzearth's father, after that the lands were denounced to be apprised; and that the judges and the inquest had convened to that effect, and the persons being admitted to be upon the inquest before any deliverance, there was a person of the number of the inquest that was called Cathcart, the number being in all 15, he absented himself, as was alleged, maliciously, by the information and solicitation of the other party. The inquest meaned themselves to the Lords, and gave in supplication, and desired letters, to charge the judges appointed to the comprising, to place another in the room of him who was absent, and to summon the party to that effect. Some of the Lords were of opinion, that the desire of the bill ought not to be granted, because that albeit there was one of the number absent, yet there was a number resting sufficient to decide the matter, being 13 or 14 persons, and of the daily practice, the number of them that are absent being admitted to be upon an inquest is never supplied by any other except they be dead, or at the horn, or departed forth of the country. It was reasoned upon the other part by some of the Lords, that in so far as the person who was once admitted, did maliciously absent himself, it could not be to the prejudice of the party, et de jure, is absens dicitur qui facile inveniri nequit, vide in Authen. C. De Fidejussoribus L. 3. and therefore, in so far as the said person absented himself maliciously, in such sort that he should in no manner of way be heard of, it was alike as if he had been sick, dead, or forth of the country. The Lords, after long reasoning among themselves, found by interlocutor, that the judge might supply the absence of the said person, and put another in his place, and so gave command to do the same, and granted the desire of the bill; licet nonnulli in contraria,” &c.
