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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.
Date: Touris
v.
Dowglas
29 July 1625 Click here to view a pdf copy of this documet : PDF Copy
In an action betwixt Touris and Dowglas, a decreet was desired to be transferred; and this nullity being proponed against the same, by the defender, viz. that it was given without probation, in respect that the pursuer referred his summons to the defender's oath, who, being summoned by the pursuer to compear to depone, and he compearing to give his oath, the pursuer produced horning, and so debarred him to depone, whereupon the sentence was pronounced; and so, in effect, wanted probation, by the pursuer's choosing of that manner of probation, and then not suffering him to depone; which could not be the ground of a lawful sentence, specially where the process and action was deduced before an inferior judge, viz. the commissaries of Edinburgh. Which allegeance was repelled, and the decreet found lawful, and sustained as good; for the debarring by horning was alike as if, for non-compearance, he had become contumax, and as sentence in that respect had been pronounced against him.
Act. ——. Alt. Mowat. Hay, Clerk. Vid. 15th July 1624, Dickson; which appears to be contrary to this decision.
Page 184.
The electronic version of the text was provided by the Scottish Council of Law Reporting