What proof of disobeying a charge to apprehend a rebel?
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Jean Home charged the Laird of Renton, then Sherift of Berwick, to take and apprehend the Laird of Wedderburn; and because he had disobeyed the charge, pursued him for the debt owing by the rebel to the pursuer. Alleged, He having been charged, while he was sitting in judgment in Eymouth upon some witches, he was not obliged to leave the Court and obey the charge. Replied, Ought to be repelled, because it was offered to be proved that the rebel was sitting beside him the time of the charge, and discoursing with him, which the pursuer offered to verify by the officer's executions, which bore, that when the charge was given, the officer designed the rebel to the Sheriff sitting hard by him; in fortification whereof, he offered to prove the verity of the executions by the witnesses inserted therein. Duplied, Ought to be repelled, because he offered to prove, by famous barons and ministers present in the Court, that the rebel was removed out of the Court before the charge given unto him; and as for the witnesses in the executions, they could not be received for proving the reply, one of them being the pursuer's father-in-law, and the other her brother-in-law' Triplied, They were testes intrumentarii, and so receivable. The Lords ordained the pursuer to condescend upon as famous witnesses to prove his reply by, as the defender had condescended on, otherwise they would prefer the defender in probation of his duply; for they respected not the executions which bore that the officer designed the rebel, as being done besides the officer's duty, which was only to give a charge, and not to put that narrative in his executions, whereas, if the question had been anent the truth of the exetions of the charge simply, none had been receivable but only the witnesses inserted.
