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In an action of production pursued by John Burnet, fiar of Barns against my Lord Buccleugh and Laurence Scott, there being sundry exceptions proponed to be proved scripto vel juramento partis, they, for proving thereof, raised an incident, and the same being sustained, there was a day assigned for proving the incident; at which day, diligence is produced against the witnesses, and another day assigned for using farther diligence; at which second day, diligence being produced, the said John Burnet pursuer in the principal cause craves the term to be circumduced. To which it was answered, No circumduction can be granted, because they are now content to refer the having of the writs contained in the incident to the parties called in the incident, as alleged havers of these writs, their oaths of verity. It is replied by John Burnet, That the pursuer of the incident can have no farther diligence; but the most that can be granted to the defender in the principal cause, is to have the pursuer's oath upon the verity of the exception. The Lords ordained the parties called in the incident to give their oath upon the having of the writs, if they were at the Bar, but no otherways.
Auchinleck, MS. p. 172.*** Durie reports this case
In a reduction, wherein an exception being admitted to the defender's probation, to be proved by writ, or oath of party, and incident being used against certain persons called as havers; which being denied by the defenders therein, in the second term of probation assigned to summon the witnesses for proving thereof, no diligence being used against the witnesses; and the pursuer of the principal cause desiring therefore the term to be circumduced, seeing no diligence was used nor produced to satisfy the term; and the party user of the incident alleging, that he might refer the having of the writs contained in the incident to the oaths of the defenders therein, albeit he had no diligence; and the other party contending, that that ought not to be granted, but only he ought to refer the verity of the principal exception to the pursuer's oath of verity, seeing his process ought not to be delayed, whatever others should declare upon the incident, except the writs, whereby the defender might prove his exception, were produced; the Lords found, That albeit there was no diligence done upon the incident at the second term, yet seeing the defenders called in the incident were present, that the party user of the incident might refer the same, and the having of the writs therein contained, to their oaths, after whose depositions, seeing they were present, the pursuer might urge his process to be put to such further point, as he might, in law, by the course and order thereof; and the Lords would consider what their declarations should work for or against any of the parties.
Act. Burnet.Alt. Nicolson & Scot.Clerk, Gibson.
Durie, p. 640.
