Effect of a precognition taken previous to a civil action; and of the examination of the defender on a charge of fraud.
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John Bogle, a short time before his death, granted an heritable bond over the lands of Hamilton-farm to Yule, for L. 4850, on the narrative that he stood indebted to Yule in that sum, by bills, and other vouchers, delivered up when the bond was given. On the death of John, William Bogle, heir of provision to him in these lands, took an ex parte precognition before the Magistrates of Glasgow, relative to the manner in which this bond was granted; and, in this precognition, Yule himself was examined. The papers found in Bogle's repositories were, likewise, upon the application of the heir, taken into the custody of the Magistrates.
The heir afterwards brought a challenge of this heritable bond, as granted on death-bed, without any just or onerous cause; and insisted, that the defender should, in the first place, be personally examined on the value alleged to have been given for this bond, and all circumstances relative thereto.
The defender did not object to the examination, but contended, 1mo, That the precognition previous to the civil action, tending to prejudicate the witnesses, was illegal; and that, before being examined, he was entitled to see, not only his own declaration, but the whole precognition. —2do, He is likewise entitled previously to see the vouchers of debt, given up when the bond was granted, and the other papers found in Mr Bogle's repositories.
Answered for the pursuer; 1mo, The precognition was taken from a suspicion, at the time, that the deed was forged, in order to know whether there were grounds for a criminal prosecution. The defender is entitled to see the whole precognition before the proof goes out, but not before his examination; for that would defeat the purpose of it, and enable the defender to frame a story consistent with the evidence, 2do, For the same reason, the defender is not entitled to see the vouchers, and other papers, found in Mr Bogle's repositories.
The Court highly condemned the conduct of the pursuer in taking the precognition; but did not think the defender entitled to see the evidence of the witnesses in it, nor the writings found in Mr Bogle's repositories, previous to his examination.
The Court remitted ‘to the Lord Ordinary to take the defender's declaration on the facts and circumstances set forth in the condescendence; but, before proceeding thereto, ordains the former declaration, emitted by the defender before the Magistrates of Glasgow, to be shown to the defender, and thereafter to be again sealed up.’
