Scottish Court of Session Decisions

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

John Grahame
v.
Stirling

Date: 9 December 1631

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John Grahame being donator to the escheat of umquhile John Grahame of Callendar; and, after general declarator, having also obtained sentence of special declarator against Stirling, relict of the said umquhile rebel, and her second spouse for his interest, for certain particulars, for which she was convened, as intromitted with by her after her husband's decease, and which were referred to her oath, and whereupon she was holden as confessed, upon her not compearance after citation; which decreet being suspended, and craved to be reduced, because it was given against her, she then being dwelling out of the country with her husband and family, animo remanendi, and she being only cited first by the principal summons, upon threescore days, referring it to her oath, and by the second summons, upon 15 days, by warrant of the Lords' deliverance; whereby it came never to her knowledge; she therefore desired to be reponed to the giving of her oath: And the donator replying, that her absence out of the country could not excuse her; seeing she was summoned upon 60 days first, and then, by the Lords' deliverance, on 15 days, conform to the practick and form of citations used against all parties out of the country; against which, to repone parties, it were to invert the whole order of process and parties' securities;—the Lords not the less reponed the woman to her oath, as if decreet had not been given; and, albeit she was not present, they assigned a day to exhibit her to give her oath; and declared what she deponed should not work against the husband, but against herself and her goods, in case she survived her husband, and against the husband after her decease, in case he survived her, in so far as he should be found to meddle with any thing pertaining to her, after her decease, and wherein he should be debtor to her, and no further; and, if the party pleased to choose any other manner of probation rather than her oath, the Lords granted the election to the donator, to choose the same as he pleased, in his option.

Act. Nicolson and Chaip. Alt. Stuart and Craig. Gisbon, Clerk.

Page 606.