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In the case Colin Hay against the Magistrates of Elgin, improbation being proponed against the executions of the messenger, bearing that he had intimated to the Magistrates, that he had arrested a prisoner at the instance of the said Colin; and the Magistrates and witnesses compearing and urging to be examined; it was alleged for Colin, that they should not be examined; because the messenger who was also cited was not present; and that if he were present he might condescend upon circumstances, and remember the witnesses that they had been witnesses; it being otherwise incident to them to have forgotten, though they had been truly witnesses to the execution. It was answered for the Magistrates, that they had cited both witnesses and messenger; that they had done all that was incumbent to them; and his not appearance ought neither to prejudge them nor the witnesses; and that having come in obedience to the citation, they should not be troubled to come here again, the residence being at such a distance.
The Lords indulged so far to Colin, as to delay the examination of the witnesses until further diligence should be done to bring here the messenger, me refragante; but ordained Colin to pay the expenses: And if it had been desired, that if the witnesses should die, they should be holden as improving; the Lords would have granted the desire.
