Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Barclay
v.
The Earl of Cassils

Date: 13 January 1631

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In this cause, witnesses being ordained to be examined, ex officio, as is noted, 21st December 1630, and a commission being granted to examine Alexander Barclay's wife, and ordained to be reported at a day assigned to that effect;—the defender being urged by the pursuer, at that day, to produce the report: and he alleging that he could not be compelled to produce the same, seeing the commission was granted in his favour, and he had either power, as he pleased, to use and execute the commission, or to desert the same; or, if he pleased, albeit it was used, he could not be compelled to produce the report, but might keep it up, and the pursuer might take all advantage thereby which he might in law, for furtherance of his process, seeing he was content that process should be granted in the cause, without respect thereto:—The Lords, nevertheless, found, that, seeing the commission was granted, ex officio, to try the matter controverted, that thereby the Lords might be informed, that the party ought to produce the report, and that he ought not to keep up the same.

Page 552.