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Duke of Lennox v Sir James Cleland. [1630] Mor 12135 (21 January 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor2812135-259.html
Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Duke of Lennox v. Sir James Cleland
Date: 21 January 1630 Case No. No 259.
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In an incident raised by Sir James Cleland in the action between the Duke of Lennox and him, after three terms were past, one of the witnesses summoned by him for proving of the having of the writs libelled compearing, he offered to pass from that witness, and not to use him at all in the cause. The Lords, in respect they perceived his design was to have all the diligences run out, and then at last he would refer it to the party's oath, would not give way to it, but found that he should not be suffered to pass from that witness, unless he would either pass simpliciter from proving his incident by witnesses, and refer it presently to the defender's oath; or then that he would declare, that when all his diligences against witnesses were run out, he should not crave the defender's oath. Of these two he chose the former.
Fol. Dic. v. 2. p. 200. Spottiswood, p. 174.*** Auchinleck reports this case:
1630. January 22.—In an incident where a witness is summoned and is sworn, and before he depone, the user of the incident stays the witness to depone, and declares that he will not use the witness, but desires that his incident may run on against other witnesses. The Lords would not suffer his incident to run on against other witnesses, to suffer him to refer his allegeance.
