Probation by witnesses being craved by a suspender resiling from the charger's oath, warrant was granted for summoning summarily such witnesses as could be got.
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There being a contract betwixt Leitches and Loch-heads, whereby the Leitches were to set up a work for weaving of ribbons, and to teach Loch-head's son that trade, and Loch-head was to furnish a house and materials, and the Leitches were to have the fourth part of the profit from their work; Leitches having charged upon the contract, insisted upon damage and interest, because Loch-head had not performed; which being referred to Loch-heads' oaths, they compeared to depone; but Leitches resiled from their oaths, and offered to prove by witnesses their damage. It was answered for Loch-heads, That having resiled, they behoved to instruct instantly, or otherwise every pursuer might vex the defenders by attending at two terms, the first being assigned to take their oaths, and when they appeared to depone, resiled, and taking a new term to prove; and therefore when any party resiles, they must instantly verify by writ, or by witnesses, to be called summarily by a macer. It was replied, That pursuers are not supposed to delay themselves, or to crave defender's oaths to vex them, but it were of advantage to justice, that pursuers might resile when they saw defenders ready to depone, who seldom compear to confess, but either suffer themselves to be holden as confessed, or at best to give a qualified oath, and would not be too ready to qualify the same if they knew the pursuer might resile, and take a time to prove; and though this were not allowed to a defender, except in singular cases, much less to a suspender, but here it is the charger who resiles.
This being represented to the Lords, as if it had been to the suspender, who craved a new term to prove his allegeance, they would not grant a term, but declared they would grant warrant to a macer summarily to cite the witnesses being in Edinburgh or Leith.
