Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Anent References to Oath

Date: 21 July 1670

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It was questioned if, as where any thing is referred to a person's oath, and a term is assigned for producing of him, and he dies before the day assigned to him for his compearance to depone, the thing referred to his oath will not be holden as proven, but he must prove it otherways ? If likewise he die after the day of compearance but before the term is circumduced, quid juris ? It may be thought that dies interpellat pro homine, and he not compearing at the day assigned to him for that effect, he is in mora, and so the points to be proven must be holden as confest by him; yet it seems more consonant to law that they nowise be esteemed proven till an act be extracted and the term circumduced, seeing all acts assigning terms bear with continuation of days, &c.

Advocates' MS. No. 88, folio 83.