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In an action, wherein the pursuer was to prove his libel, the witnesses being going out of the kingdom, to sail to foreign countries, so that the pursuer was in hazard to tine his probation, if they should die before their return, it being desired, therefore, by the pursuer of the cause, (no litiscontestation being made therein,) that the said witnesses should be examined, and the depositions kept in retentis; it was found, that the desire could not be granted, while the defender was summoned to hear what he would say against that desire, and because he was then out of the country; so that he could not be summoned in due time before the witnesses would depart; therefore, the desire of the examination was refused.
