Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Alexander Weir v. James Simpson
Date: 27 January 1702
Click here to view a pdf copy of this documet : PDF Copy
Alexander Weir, as procurator-fiscal for the manufactories, having seized on some prohibited stuffs, conform to the late Act of Parliament, in the house of James Simpson, merchant in Edinburgh, he pursues a declarator to have them confiscated and burnt, as falling under the prohibition. Simpson, the defender, craved his oath of calumny, if he had reason to pursue that libel. Weir Contended,—That, in thir popular actions, he was not obliged to swear de calumnia no more than the King's Advocate is; especially where he produces the thing itself before the judge, and, by ocular inspection, it is confiscable, as wanting the seal appointed for English goods.
Answered,—Parties are not obliged to give their oath de calumnia on the major part of the summons, because that is, injure, founded on the Acts of Parliament or principles of law; but, as to the subsumption arising from the fact libelled, every pursuer is bound to give his oath of calumny, if required, according to the 125th Act 1429; illud juretur quod lis sibi justa videtur; and he may allege that his case falls not under the prohibition of the Act of Parliament; for it might have been brought into his house, and left there to trepan him, though none of his.
Replied,—If defences be proponed, then the pursuer will be bound to give his oath of calumny thereon; such as, if he has reason to deny that thir stuffs were sealed according to law, though now they be worn off; but, in general, to give an oath of calumny, is both ensnaring and discouraging to such pursuits.
The Lords found no specialty; but that he was bound to give his oath of calumny, if he had just reason, and believed that he had cause to pursue this libel. This does not import that a party is obliged to give his oath de calumnia juris as to the legality or relevancy of his allegations injure, (which belongs to the judge's determination,) but only on the fact resulting from the point of law, whereon the subsumption of his libel stands.
