The Lord Ordinary may judge of all that is produced before litiscontestation in modum probandi.
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In a reduction betwixt Donaldson and Rinn, wherein a Sheriff's decreet was questioned, as wanting sufficient probation; the testimonies of the witnesses adduced before the Sheriff being produced, for satisfying of the production, and a warrant to discuss the reasons in the Outerhouse; it was alleged for the defender, That the Ordinary could not be Judge to the probation, but the whole Lords only. It was answered, That the Ordinary may, and ordinarily doth judge all that is produced before litiscontestation, though writs of the greatest intricacy or importance were produced; but if litiscontestation be made, nothing adduced for probation can be advised by the Ordinary; yea, if any thing be referred to the oath of the party at the Bar, without an act, the Ordinary takes the oath immediately, and determines accordingly; and in this case, the witnesses' oaths adduced before the Sheriff being produced before litiscontestation, and being patent to both parties, and subsumed in the reason and nullity, and debated upon, the Ordinary may consider the reason and subsumption, and determine accordingly, wherein there is no hazard to any party; for, if the case be doubtful, the Ordinary will report; and however an amand or a bill will bring it before the whole Lords.
The Lords found, that the Ordinary ought to advise the testimonies of witnesses, when they are libelled upon, and produced before litiscontestation.
Fol. Dic. v. 2. p. 209. Stair, v. 2. p. 500.*** Dirleton reports this case:
It was moved, Whether or not a decreet of an inferior Judge, being questioned upon that ground of iniquity, that the libel was not proved, and the depositions of the witnesses being produced by the pursuer ab initio, the Lord of the Outerhouse may advise the probation, or if it, ought to be advised by the whole Lords? It was found, That the depositions being produced, (as said is,) the Lord may give his own interlocutor, as upon any other writ produced ab initio, to instruct the libel: Though some of the Lords were of opinion, that the probation ought to be considered and advised by the hail Lords; and it was hard, that the probation being found sufficient by a competent Judge, it should be in the power of one single Lord to review the same, and find the contrary.
