A person was held as confest for not deponing upon reference as to a battery.
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One Edgar convened Andrew Darling before the Bailie of Melross, for blooding of him; the which Bailie having referred the doing of the deed to the defender's oath, being present; upon his refusing to swear, decerned him in L. 50 for the blood, and as much for the blood-wit. Edgar having raised letters and charged Andrew, he suspended on this reason, that the decreet was null, in so far as it was given against him as holden pro confesso; because all such deeds ought to be tried by an inquest, and not referred to the party's oath, being a criminal matter. Answered, Albeit it be the custom to try such deeds by an inquest, yet it is as lawful to refer the same to the party's oath, where the deed is clandestine, and nobody present at the doing of it, specially seeing it imports neither life nor limb.—The Lords found the letters orderly proceeded.
Fol. Dic. v. 2. p. 13. Spottiswood, (Barony, &c.) p. 26.
***See Durie's report of this case, No 11. p. 700. voce Jurisdiction.
