Scottish Court of Session Decisions

Subject_1 DILIGENCE.
Subject_2 SECT. VII.

Diligence Prestable by Factors and Mandataries.

Irving
v.
Irving

Date: 8 February 1701
Case No. No 55.

Found the reverse of Queensberry against Wilson, supra.

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Irving of Drum pursues Irving of Artamford for his intromission, for sundry years bygone, with the rents of a barony belonging to Drum, for which he had no written factory or commission, but only verbally and as a friend; and witnesses having proven his partial intromission with some of the rooms of that barony; this was urged as a promiscuous intromission to make him countable for the whole, which the Lords repelled; Then Drum offered to supply it by his oath; against which Artamford alleged, That having elected your manner of probation by witnesses, you cannot now recur to my oath. Answered, There is no fear of contradictory probation in this case, for it is only referred to your oath, what farther you intromitted with more than is already ‘proven by your receipts, or the witnesses’ depositions. The Lords ordained him to depone; but a question arose, if he might not adject his discharge to his oath, as well as they made him now to constitute the charge against himself by his oath: and if he might not lawfully depone, as I intromitted at Drum's desire without writ, so I paid it in to him again without any writ from him; or if his oath in that case would be divided, and prove the charge against him, but not his own discharge, or if it behoved to be taken altogether complexly. The Lords allowed him to depone as he thought fit, reserving to themselves the consideration and import of the qualities at the advising of the cause.

Fol. Dic. v. 1. p. 242. Fountainhall, v. 2. p. 108.