Whether a Party can be required to depone a second time upon special Interrogatories?
Mowat v. The Earl of Southesk
Date: 29 July 1673 Case No. No 32.
In a process, the defender had condescended on payment by a servant, who deponed non memini. Afterwards, a written acknowledgement of the servant was found.
He was ordered to be re-examined.
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The Earl of Southesk having obtained a decreet against James Mowat, for payment of a sum which Mowat was obliged to advance to the Earl in France, Mowat alleged, That he had advanced the same to Mr James Maitland, then the Earl's servant, and keeper of his money; Mr James Maitland being examined upon oath, remembered not of the same; whereupon Mowat was decerned. He now gives in a bill of suspension, and alleges, That he had then produced in process a count written by Maitland's own hand, and a letter relative thereto, bearing the payment of this sum, which was not produced or shown to Maitland when he gave his oath by inadvertence the close of the last session; therefore craving that Maitland might be examined upon the sight of the count written by his own hand, in respect that he had now seen the account, and was thereby brought to remembrance. The Earl opponed his decreet in foro, and that Maitland had deponed, and that it was competent to Mowat to have craved his re-examination before sentence.
The Lords ordained the matter to be discust upon the bill, and ordained Maitland yet to be re-examined upon the sight of the account, which would not clash with his former oath, being only as to his remembrance. Likeas, they found that Maitland never compeared to depone, but gave in his oath in writ, without inspection of the account.
