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Scottish Court of Session Decisions >>
Earl of Galloway v Maxwell. [1629] Mor 9381 (16 December 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor2209381-046.html
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In a reduction and improbation in one summons, as use is, the defender craving the pursuer's oath, if he had just cause to pursue improbation of the writs called for, without which he alleged he could not be compelled to produce to satisfy the reduction, seeing he was content the same should be reduced for non-production; but, if he could give his oath that he had just cause to improve, he was content that his production should remain,—the Lords found, that the pursuer could not be compelled to give his oath particularly upon that part of the summons, if he had just cause to pursue, the improbation and reduction being both in one summons, and that he ought only to give his oath de calumnia upon the whole summons, as it stands, if he had just cause to pursue the same.
Act. Stuart & Nielson.Alt. Cunningham.Clerk, Scot.
Fol. Dic. v. 2. p. 12. Durie, p. 475.*** Auchinleck reports this case:
In an action of reduction and improbation, both contained in one summons; the defender craved the pursuer's oath de calumnia, if he had just cause both to pursue the improbation and reduction, and the pursuer was content to give his oath concerning the reduction.—The Lords ordained him to give his oath upon the whole libel, because it was found that such libels could not divide.
