Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Monteith
v.
Henderson

Date: 12 July 1677

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Henderson of Fordel, having raised improbation of a disposition, by Randifoord to Carrubber, of his estate; and having desired the writer and witnesses inserted to be examined, to remain in retentis, lest they might die, or be put out of the way, before the process, by the course of the roll, might come in: they were accordingly examined. Carrubber did likewise pursue a declarator of his right to be true and valid; and desires that certain witnesses, here and abroad, be examined, to remain in retentis, whether or not they heard Randifoord declare that he had disponed his estate to Carrubber; and likewise that he might have warrant to cite several witnesses, who heard one of the witnesses inserted declare that he had gotten 200 merks from Fordel to depone.

It was answered for Fordel, That he, being in an improbation, wherein the direct manner is used, and the writer and witnesses inserted examined; till that be concluded and determined, there is no place for the indirect manner, either by improbation or approbation. And as to the examination of witnesses, upon one of the witnesses inserted his declaring he had received 200 merks, it is a reprobator, and should not be sustained but by way of ordinary action, and after sentence.

The Lords found, That if there were no doubtfulness in the improbation by writer and witnesses, there was no place for the indirect manner: but, because there were only two witnesses, and the testimony of one was quarrelled, they gave warrant to cite the witnesses quarrelled, and other witnesses to be condescended on, before extracting of this warrant, upon his hability; and declared they would sustain the same as a reprobator, to proceed, as an incident, with the principal cause of improbation summarily, without going to the roll as a distinct process; but that they would not stop the principal cause in dependence before, by the dependence of the reprobator.

Vol. II, Page 537.