Depositions of witnesses ought to be subscribed by the inferior judge who examines them, as well as by the witnesses themselves.
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Mr George Dalrymple, Advocate, buys a horse from one Wright, a horse-couper, for L. 14 Sterling, but with this condition, that he should have a trial of him for eight days, and if he did not please him, he had liberty to return him in that time; and he having rode upon him to Newliston, he fell with him and crushed his leg, whereon he sent him back within a day or two; and Wright refusing to restore the money, he pursues him before the Sheriff, and on a probation of the bargain, obtains a decreet, which Wright suspends on this reason, that one of the witnesses, by whom you prove the bargain, confesses he was not present at the making of it, and so can never be a habile witness. 2do, The depositions are only subscribed by the party, and not by the Judge. Answered to the first, The probation is pregnant and full, the one deponing he was witness to the bargain, and that it was conditional on a week's trial, the other depones, he heard Wright declare these were the terms of the sale, which is every whit as good against him, as if he had been present. To the second, Though it be customary for the Judge to sign with the witnesses, yet its want is not a nullity, (though the Commissary of St Andrews, was censured by the Lords for that omission.) The Lords refused the bill of suspension, but ordered the Sheriff to be more observant of form in time coming.
Fol. Dic. v. 2. p. 249. Fountainhall, v. 2. p. 474.
