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The Lord Rutherford being holden as confest, and reponed, by way of suspension, on this reason, That he was out of the kingdom animo remanendi, and some other reasons, a new term was assigned, and a commission granted to take his oath; but before the day in the commission came, he died; upon which the charger craved holding the defunct as confest, seeing he had not deponed negative; and the presumptive acknowledgment must hold.
Answered for the now Lord Rutherford, That the reponing his brother to oath put him in the same condition he was in before the decreet holding him as confest; and therefore the charger must prove his oath.
The Lords, before answer, ordained the interlocutor to be seen, whether he was reponed ex gratia to purge his contumacy; in which case it appeared just, that the party not having deponed conform to the faculty given him, the presumptive confession should hold as probation against his heirs and executors; or if the decreet was turned into a libel, upon some nullity or informality, in whieh case the contrary appeared just. And it appearing that the reason of reponing my Lord was an objection against the executions, the Lords found the presumptive confession did not militate against the defenders.
Fol. Dic. v. 2. p. 185. Harcarse, (Oaths.) No. 741. p. 210.
