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In the action betwixt Alexander Davidson and John Gordon of Buckie, the Lords found that a man might propone two exceptions of one nature and substance against the pursuit, and get them to his probation; but in termino, if they tended both to one end, and the one might be writ, and the other be oath of party, it was necessary to make election of the one form of probation; for they would not take the party's oath of verity, and thereafter receive probation by writ, super eodem subjecto in substantia, propter periculum et scandalum perjurii. In that same cause, it was found that ane bond to pay ane soume of money bearand no cause, and the user refusing to condescend upon the cause, the maker offerand to prove the cause by the witnesses inserted in the bond, and in other authentic writs, and that the cause alleged by him took away the said band, the Lords fand that it might be proved by the witnesses inserted.
Fol. Dic. v. 2. p. 221. Haddington, MS. No 2662.
*** Durie's report of this case is No 72. p. 2619. voce Compensation.
