Effect where the counter part of an indenture, respecting lands, was in the opponent's hands.
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In an action pursued by Sir Archibald Aitchison against John Murray of Broughton, as heir, at least behaving himself, to his umquhile father, George, viz. by selling certain lands which pertained to his father in Ireland, to the Earl of Annandale, litiscontestation is made in the cause. The defender being absent in termino probatorio, Sir Archibald produces, by other writs, an indenture subscribed by the Earl, anent the said lands, annailzied to him by the defender, and because the other half of the indenture, subscribed by the defender, was in the Earl's hands, for shortening process, in raising incidents, Sir Archibald referred to the defender's oath of verity, that his indenture, produced, was the true double of that part which was subscribed; but the defender referred it to his oath; after which production, compeared his Advocate, Sir Thomas Hope, and alleged, The defender could not, by any form of process, be compelled to give his oath, seeing the pursuer had referred nothing to his oath by the libel, and seeing he had produced writs to prove his libel, he would not use probation of that same member by oath of party also. To which it was answered, That the pursuer used his oath in supplement of the objection, which might be made against the inventory produced, viz. that it would not prove, because it was not subscribed by the defender; and if this had been objected, the pursuer might have replied, that he referred the verity of the deed to the defender's oath; so it might be sustained hoc loco; which the Lords sustained.
