A defender, cited as a haver, not obliged to depone, unless a special condescendence is given in.
Lawyers, agents, &c. called as havers, bound to answer only such interrogatories as are competent to be put to their client.
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In the reduction and improbation betwixt these parties, the defender produced a charter and sasine, sufficient, with forty years possession, to exclude the pursuer; whereupon he took out a diligence in general to prove interruptions; and, having execute it against the defender, “The Lords found he was not bound to de pone, unless a special condescendence was given in of writs called for to be exhibited.”
Thereafter the pursuer insisted, That the Lord Napier's doers and agents should depone, in general, as well as any other havers. To which it was objected, That they were not bound to depone otherwise than the defender himself was, they being the same with himself.—At advising whereof, “The Lords found, That no interrogatories could be put to Lord Napier's lawyers and doers, as to any papers they had occasion to see in the course of their employment, but what might have been put to my Lord himself.”
The pursuer reclaimed; and set forth, That if any of the defender's lawyers, &c. have had imparted to them the knowledge of any particular writing, under confidence not to reveal the same, he was willing they should be excused from deponing upon such writing; but as to those they have seen in the common course of their business, under no particular tie of secrecy, there could be no reason why the pursuer should not have the benefit of their oaths, with respect to such papers, as well as of the party himself. 2do, Granting the lawyers and agents are not bound to answer to a general interrogatory, as to such writs as they have come to the knowledge of in the course of their employment; yet the pursuer has reason to believe, that one of the defender's agents, who was called to depone, had an opportunity to see several writs that are now in Lord Napier's charter-chest, before he was employed by his Lordship: As to which there was no reason why he should not depone, in general, upon these, as well as any other party called. Besides, he has seen other papers, since he was my Lord's doer, in the hands of third parties, as to which he should also depone, 3tio, It was prayed, That chamberlains, factors, and other trustees, should not be comprehended tinder the interlocutor.
