Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Earl of Nithsdale v. The Tenants of Duncow
Date: 10 January 1672
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It was alleged against a pursuit, that the pursuer must tine his action, conform to the 219 act of Parliament in 1594, declaring that whatsoever pursuer should slay, wound, or otherwise invade the defender during the time of the dependence of their action, should tine his cause, without any other probation save of the riot, and this whether he did it himself or others by his red or counsel; but ita est, this pursuer had suborned persons to beat and hurt him, who had accordingly executed the orders given them. It was answered he behoved to say his blood was shed.
The Lords found he needed not, because the act is conceived alternativè, if he either wound to the effusion of blood, or they invade one another in any sort whereon they could be criminally accused.
2do, answered, the subordination and mandate was only probable by the pursuer's oath and not by witnesses. replied, though in civilibus a mandate was only probable scripto vel juramento, yet they having replied that he was art and part, and that it was done ejus ope et consilio; as probation by witnesses of this would be admitted in a criminal pursuit before the Justices, and would import conviction, so the same probation may be used here. Vide supra, No. 162, [1ord Advocate against Robertsones, 9th March 1671.]
They were to have the Lords' answer, whether his order could be proven otherwise than by his own oath. See this case fully in the informations.
