Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

John Carstairs
v.
Elphingstoun of Quarrel

1683. Februaryand March.

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In the improbation of a discharge, as to the date in October 1652, for verifying an allegeance of minority the time of the granting thereof, one of the witnesses being dead, and the other having deponed that it was his subscription; but that he thought he subscribed it in the year 1651, the harvest after Worcester fight; and that he was not witness to any other discharge between the pursuers and defender at any other time; and, at advising, two other discharges, wherein the deponent was a subscribing witness, being produced;—the Lords perceiving no vitiation in the date, by ocular inspection, and considering the witnesses are not able to remember so ancient dates of writs, and that the deponent was not positive that it was in the 1651, but only he thought so, they assoilyied from the improbation.—February 1683.

Thereafter the pursuer craved to be allowed to prove he was alibi all October 1652. Answered for the defender, That new articles cannot be received after advising the improbation. Replied, After the direct manner of improbation is closed, by examining of the instrumentary witnesses, the pursuer may recur to the indirect articles. The Lords sustained the reply, and allowed the pursuer to condescend, and consign, which had not been done at first.—March 1683.

Page 149, No. 538.