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In an incident diligence against witnesses out of the country, after the terms, upon 60 days, the principal party urged the conclusion of the incident, seeing the whole terms were outrun. It was alleged by the pursuer of the incident, That he was certainly informed, that some of the witnesses were returned to the country, and therefore ought to have caption against them, according to the ordinary form of process. The other party contended, That caption was not necessary against persons out of the country; and except the user of the incident would give his oath that they were returned, they could give no caption. The Lords gave him 20 days to use caption, in case they were returned already, or should return within that space.
