Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Isobel Anderson and James Henderson v. Charles Murray and Agnes Fleeming
1695 and
1696.
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1695. January 9.—The point was, If the decreet of mails and duties should stop, because there was a reduction of the right depending, ex capite lecti, which was ready to be debated. The Lords decerned in the mails and duties, reserving the reduction, as accords; as they offered to find caution to refund the rents, if they succumbed in their reduction.
Vol. I. Page 656.
1696. January 21.—In the action pursued by Charles Murray and Fleeming against Isobel Anderson and James Henderson, being a reduction ex capite lecti; and the pursuers repeating a probation of the deathbed, led in another process at Grange Dick's instance:—in regard the witnesses who were examined there could not be repeated now, being dead, the Lords found such witnesses transmitted from the one process to the other could not be used as probative here, being res inter alios acta; and he might have had objections against them, or further interrogators to have refreshed their memories, and made them depone on other circumstances, which were not in the examination on the first process put to them; and that, in law, testibus non testimoniis credendum est. Yet see Dury 16th January 1628, Finlayson; where deducta in uno judicio were sustained coram alio, in things quce tractu temporis mutationem non recipiunt; and 25th January 1632, Kaidly; where the Lords found a passive title in one process proved in another by production of the decreet, without adducing the probation de novo.
