The verity of a libel being referred to a defender's oath, the Lords found the pursuer could not exclude the defender from deponing, by a horning.
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In an action pursued by Thomas Dickson apothecary, contra the L. Coldingknows, where the summons being admitted to the pursuer's probation, and referred to the defender's oath of verity simpliciter, and at the terms assigned to that effect, the defender offering to depone and give his oath, he was debarred by a horning produced by the pursuer against him, whereby he alleged, That he could not depone but should be holden as confessed, being rebel. The Lords found, That in this, and the like cases, the pursuer could not exclude the defender to depone, nor obtrude horning against him to debar him, seeing he craved his oath for his probation, and had warned him to compear to give his oath; and therefore could not refuse that whereof he himself had made election, and which was desired by him; and so the horning was not admitted, in respect it was a severe consequence to hold the defender pro confesso upon a libel which might possibly contain more than the defender was worth being so debarred, and there being no other probation; but it is to be adverted, that in all the causes almost, where parties defenders are summoned, this reason may exclude all pursuers to debar the defenders by horning; for it may be alleged, that seeing they are summoned to hear decreets given against them, or else to allege a cause in the contrary; by the same reason, they may say, that seeing he is summoned to allege a cause why the pursuer should not have his intent, he ought not to be debarred by horning to propone lawfully that which by the pursuers summons is permitted to him to do; and in these cases, the defenders not the less may be debarred by hornings.
Act. Chaip & ——.Alt. ——.Clerk, Hay.
Fol. Dic. v. 2. p. 84. Durie, p. 138.
