Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Earl of Annandale v. Sir Robert Dalziel of Glennea
Date: 27 February 1695
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The Earl of Annandale gave in a petition against Sir Robert Dalziel of Glennea, representing, there is a bond now produced of his father's, for 4 or 5000 merks, granted to Glennea's goodsire 32 years ago, and never claimed, nor heard of all this time, though his father was owing them another sum, whereof the annualrents were yearly paid, and this never sought; and he has just ground to believe, this was either a false bond, or granted blank spe numerandœ pecuniae, and never took effect; and that one of the witnesses, called Couper, was dying, at least, might die before June, and who declared he knew nothing of such a bond, or his subscription; therefore, craving he might be examined to lie in retentis.
The Lords having considered the testificate of his sickness and age, and that the bill was intimated, and no answers, they allowed the Ordinary on the Bills to take his oath, in the vacance; but, as he could not well depone without seeing the bond itself and his own subscription, they granted a diligence against his mother and tutors, for exhibiting the bond.
All this was regular: but it was further represented, they would keep the bond, to stop his examination, and render it ineffectual, unless a second diligence, by caption, was granted, to force them, in the vacance, to exhibit it: which the plurality of the Lords yielded to, though some desired an instance might be given when a first and second diligence were granted both at once; but the plurality of the Lords thought there was no inconvenience in the thing; and, without it, the granting the other part of the petition would be ineffectual.
