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Mr Walter Caut having pursued James Loch and his mother as tutrix, for her interest, for the mails and duties of some apprised lands, and the quantities being referred to the tutrix's oath, she refused to depone, alleging that she had forgotten the quantities, whereupon the pursuer craved her to be holden as confest upon the rental given in by him as if she had acknowledged the same.
The Lords found she could not be holden as confest, being not the party but the tutrix; but they found that she might be forced to depone by horning and caption as other witnesses.
Fol. Dic. v. 2. p. 183. Stair, v. 1. p. 288.*** Newbyth reports this case:
Mr Walter Caut having comprised certain tenements of land from Mr Alexander Elies, and Mr Hary Charteris, pursues James Loch and his tutors, and likewise had comprised the same tenements, and before he had comprised to count and reckon for his intromissions; at least, that he having comprised within year and day of the first comprising, might come in pari passu with the defender, conform to the act of Debtor and Creditor; and it being questioned a quo tempore the defender ought to count to the second compriser, whether from the date of the comprising, or from the date of the act of Parliament, the Lords found that the first compriser ought to count to the second comprise from the date of the act of Parliament, and this is always so decided.
