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Scottish Court of Session Decisions >>
The Earl of Annandale v Sir John Dalziel. [1700] Mor 12095 (30 July 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Mor2812095-207.html Cite as:
[1700] Mor 12095
The Lords found that a witness in an improbation could be received to lie in retentit before the reasons came in to be debated in course.
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The Earl of Annandale pursues a reduction and improbation of a bond of 6000 merks, granted by his father to the deceased Sir John Dalziel of Glennae, in 1662, against which there were sundry presumptions urged, that it was never heard of by the space of 30 years, whereas, there was another bond for a lesser sum, the annualrents whereof had been punctually paid and exacted; and one of the witnesses in the bond, called Patrick Johnston, having lived these many years bygone in Ireland, and being now accidentally here, the Earl craved to have him examined on the verity of his subscription. Glenrrae, astructing and adminiculating the bond, produced a letter of the same date with the bond, and relative thereto, wrote by the Earl's father, and alleged there was no necessity for examining the instrumentary witnesses, seeing the letter, acknowledged by the Earl to be his father's hand-writ, sufficiently documented and supported the bond. The Lords were divided, whether a witness in an improbation could be received to lie in retentis, before the reasons came in to be debated of course; and, by a plurality of eight against seven, it carried in the affirmative, that he might. The next difficulty was, he could not depone, in respect the bond was not yet in the field. But there being a certification obtained against it in the Outer-house, the very end of the Session, some urged, that behoved to be conditional till November, (as all certifications in improbations the last week of the Session use to be,) yet the Lords ordained it to be extracted, if it were not produced betwixt and the 10th of August next, to the effect the witness might compear and depone before the three Ordinaries on the bills in time of vacance, or any two of them, anent the verity of his subscription.
Fol. Dic. v. 2. p. 192. Fountainhall, v. 2. p. 107.
