A peer called upon an incident diligence as a haver of writs ought to depone in common form as to the having.
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In the reduction and declarator at the instance of the Duke of Montrose against Ardincaple, about the right to the heritable bailiary of the regality of Lennox, the pursuer being cited upon an incident diligence, as haver of the defender's rights;—the Lords found, That the Duke in this case of exhibition, ought to depone in common form; the oath demanded in an exhibition, not being an oath of calumny. In the reasoning of the Lords upon this point, one said, that the defender in an exhibition might be held as confest for not appearing, or refusing to depone; and therefore, an oath in an exhibition is litis decisorium quoad the deponent. And though the pursuer could not be hindered afterwards to produce the writ formerly called for in the exhibition, notwithstanding the defender's oath; yet he could never oblige the defender to depone again upon his having thereof, nor fix the same against him by any other probation. Another of the Lords thought, that an exhibition approached to the nature of a probation by witnesses: And therefore, Peers called therein should depone in common form, seeing by the law of England they depone so as witnesses.
Fol. Dic. v. 2. p. 53. Forbes, p. 555.*** Fountainhall reports this case:
The Duke of Montrose, pursuing a reduction and declarator against M'Auley of Ardincaple's right to the heritable bailiary of the regality of Lennox, and craving certification; it was alleged by the defender, the writs instructing my right are in your own hands; and refers the having to the Duke's oath. Answered, I will search my writs, and on my word of honour shall declare, If I can find any thing can prove your allegeance. Replied, Though the privilege of the English Peers be communicated to the Scots, yet non constat this is one of them; for whatever they may plead in what we call oaths of calumny, yet not where it is decisive of the point referred thereto. And it is certain, before the Union, our Peers enjoyed no such privilege; and it must be instructed that the English have it; and there being application made to know their customs, no satisfactory answer can be obtained. And the point has been several times tabled, and debated before the Lords, and now it can be no longer delayed. And the Lords found in this case the Duke behoved to give his oath, being an exhibition on the matter. If the House of Peers in England shall declare otherwise, the Lords will readily follow their determination, after they come to know it, but till then they cannot be blamed to follow their former laws and customs.
