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John Duff, donatar to Andrew Kelly's escheat, pursued a declarator there of Compeared one Keith, and Stephen Boyd, two of Kelly's creditors; and alleged, No declarator; because they offered to prove, that there gift was taken to the behoof of the rebel. Boyd having recovered an incident for proving of his exception, Keith not being so wary in time was forced to refer his to the pursuer's oath of verity; who alleged, He could not give his oath; because the other had an incident running for proving of the same, wherethrough he might be brought in danger of perjury.—The Lords thought the probation might divide, the parties being diverse, though they were about to prove one and the self-same thing; and, therefore, ordained his oath to be taken.
Fol. Dic. v. 2. p. 13. Spottiswood, (Probation.) p. 241.*** Haddington reports this case.
Duff pursued declarator of Kellie's escheat. Compeared Stephen Boyd, for himself, and Robert Keith, for himself, as having interest, because Kellie was owing just debts to them; and alleged, That the gift was taken to the rebel their debtor's behoof, and qualified their allegeance relevantly; which being admitted to probation, Boyd used diligence to prove by writ, and Keith not having used diligence, referred it to Duff's oath. He alleged, That the two probations could not be permitted, lest the probation by writ, being contrary to his oath, might bring upon him the danger and infamy of perjury: And it was farther reasoned, That if any one of the defenders allegeances was proved, it would elide the whole pursuit; and, therefore, desired the oath to be delayed, while the other parties' probation by writ were concluded and advised. To this was answered, That, in the mean time, the party might die, and so the probation by writ might perish, and that the defenders being several parties for several interests, their probations Would not be confounded, nor any thing proved or not proved by the one would concern the other. In respect whereof, the Lords found, that both the probations might proceed.
