Where the party to depone was under diligence, commission was granted to take the evidence in a private place.
Click here to view a pdf copy of this documet : PDF Copy
In an action pursued by Mr James Strachan against Sir John Scot, as executor or intromitter with the goods and gear of umquhile James Courty, for payment of some monies addebted to the pursuer by the said umquhile James Courty, and which sums was referred to the defender's oath of verity, who being at the horn when he was desired by the pursuer to be holden as confest for not compearing to give his oath, being lawfully summoned to that effect; the Lords found that his being at the horn being a cause why he could not compear, ought to stay to be holden as confest, albeit the pursuer obtruded no horning against him, and albeit it was in his own cause wherein he was summoned, and that it was his own default, through not relaxing of himself, that he compeared not; and the Lords granted a commission to any Judge the pursuer pleased, to pass privily to some private part where the defender might safely depone, and to take his oath upon the summons.
Act. Russel.Alt. Scot.Clerk, Gibson.
But this decision is of an evil preparative and not to be observed; for hereby the rebels are in better case than the King's free and obedient subjects, who will be holden as confessed, being lawfully cited, and who will not obtain commission except upon lawful excuses of sickness verified, or such like. Thereafter the pursuer resiled from referring of the summons to the party's oath, and offered to prove the defender's intromission by witnesses, which was permitted, and granted by the Lords.
1624. June 15.—In this above-written cause of Mr James Strachan, of which the 8th instant, the defender compeared and proponed an exception, that he could not be convened as intromitter with James Courty's goods, &c. because the same were disponed by the said James in his own lifetime to Daniel Melvil, who, after the said disposition, disponed the same to the defender. To which it was answered by the pursuer, That that disposition behoved to be reputed simulate, seeing James Courty disponer remained in possession of the goods to the time of his decease, notwithstanding of the disposition, after whose decease the defender intromitted. This reply was found relevant to elide the exception; and the Lords found it not necessary to the pursuer to reply any further, that the said disposition made to Daniel Melvil was to the defender's behoof; but found it sufficient to reply that the disponer retained the possession to the time of his decease, and that thereafter the defender intromitted.
Fol. Dic. v. 2. p. 192. Durie, p. 127. & 128.*** Haddington reports this case:
Ane man at the horn for ane civil cause being pursued be another party for ane fact or debt, and the same being referred to his aith of verity, the Lords considering the defender's difficulties, either to be holden as confest gif he compear not, or to be imprisoned gif he compear, will sometimes incline, out of pity, either to give to the pursuer his choice of any Judge or clerk to receive the party's aith, or to give ane protection to the defender to compear and depone in the cause.
