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Smart v. Chaplain
Date: 20 November 1703 Case No. No 19.
Witnesses had been adduced before the Lyon Court. It was found, in advocation, that their examination was null, not having been signed by the Judge until after they had been judicially produced in the advocation.
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Archibald Hislop being debtor to Archibald Smart in Fisher-row in 420 merks by bond, Rebert Chaplain, messenger in Dalkeith, is employed to take him with caption, who after he had apprehended, and kept him in custody for a day, suffered him by connivance to escape; whereupon Archibald pursues him and his cautioner, before the Lyon Court, for payment of the debt; where sundry witnesses were examined, for proving the libel, viz. his being employed, and his negligence in letting him escape, after he had taken him; and the messenger having proponed this defence, that Smart had promised, if he took the rebel of new, and incarcerate him again, he would pass from his subsidiary action, and that he had accordingly taken him, the Lyon found the said allegeance relevant, and probable by witnesses; whereupon there is an advocation raised of the pursuit; and at discussing, they insisted on these reasons, 1mo, That the depositions were not signed by the Lyon, as judge, till they were judicially produced before the Lord, and quarrelled on that nullity, and then only signed; 2do, It was not the Lyon who took them, but his depute, and so ought to have been signed by him, and not by the Lyon; 3tio, It was contrary to all law, to admit a promise to be proved by witnesses. Answered to the first, It was a very good practice, that the judge should subscribe the testimonies as well as the witnesses, but there was no specific time limited, precisely to do it in, but the omission can be supplied any time before advising; to the second, Non refert whether the principal judge or his depute sign them; and as to the third, It was of the nature of a paction or a bargain, which may certainly be proved by witnesses. The Lords found the examination of the witnesses null and informal, and not probative, till they were led of new before the Lords, upon getting up their former depositions; and likewise found this paction of the nature of a promise, and so not probable by witnesses, but only scripto vel juramento. See Proof.
Fol. Dic. v. 1. p. 553. Fountainhall, v. 2. p. 191.
