A summary application may be made, in cases of necessity, to have witnesses examined, to lie in retentis.
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The Earl of Winton gave in a bill to the Lords, the occasion whereof was, that the Earl was born several years before his father married my Lady, his mother; and the family of Kingston, the next branch of the tailzie, doubting of his legitimation by subsequent marriage, he took a brief out of the chancery to serve himself heir to his father before the macers; but the marriage having been private, there were no witnesses on life who were present, but only Sir John Ramsay, and James Smith, clerk of Tranent, whom he designed to adduce as witnesses to the inquest; but James Smith being suddenly ill, and in hazard of death, and in no hopes of life till the day of the service, the Earl gives in a bill, desiring the Lords to name some of their number, or any other to take his oath presently, to lie in retentis, lest by his death the mean of probation perish, and to put this single interrogatory to him, if he was not a witness present when the last Earl married the present Earl's mother. The difficulty was, that it ought to be intimated to the next heir, and abide the minute-book; and if it had been any other day of the week but Saturday, it is likely it would have been delayed till the next day for an answer, but to have superseded till Tuesday might endanger the cause, if he should die before that, so there was periculum in mora. The Lords granted the desire of the bill, and named two of their macers (as Judges before whom the cognition of his legitimacy by the service was to come) to go to Tranent that same afternoon, and take his oath, if he was present at the last Earl's marriage, and to take one of the clerks with them. The heirs of tailzie produced a signature under King James VII.'s hand, taking the lands to himself et hæribus masculis legitime ex corpore suo procreandis, which being long after the present Earl's, birth, evinces he did not esteem him to be his heir. The Earl, on the other hand, produced a bond settling a jointure on her, and designing her Countess of Winton. The Lords left these documents to be produced to the assize; but thought the case favourable, and required dispatch, though the next heirs of tailzie did expect they should have been heard before granting any such extraordinary desire. Some thought that cohabitation, and the being reputed man and wife by all about them, and his owning her for such at bed and board were sufficient to infer a presumption of the marriage, as Stair shews, Lib. 1. Tit. 4.
Fol. Dic. v. 2. p. 193. Fountainhall, v. 2. p. 580.
