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Sir William Davidson v The Earl of Middleton. [1673] Mor 4432 (5 June 1673)
URL: http://www.bailii.org/scot/cases/ScotCS/1673/Mor1104432-005.html Cite as:
[1673] Mor 4432
Foreign Writs, formal according to the Law of the place, afford action in Scotland, as obligatory jure gentium.
Subject_3 SECT. II.
Depositions not subscribed by the witnesses.
Sir William Davidson v. The Earl of Middleton
Date: 5 June 1673 Case No. No 5.
Oaths of Scotsmen, taken by foreign judges, by virtue of commissions granted by the Lords of Session, ought to be subscribed by the party deponer, and the subscription and seal of a foreign judge, is not sufficient, although it is the custom of that place.
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In a pursuit at Sir William's instance against the Earl of Middleton, upon a bond granted by the Earl for a sum of money, there being a defence of payment proponed, and referred to his oath, and a commission granted for taking thereof in Norway, where he resided, the report whereof being advised, it was alleged, That his oath not being subscribed, but only attested under the hand of a stranger and judge, it could not be received to prove the defence.—It was answered, That the commission being directed to a judge in Norway, who had returned the report under his hand and seal, which was the ordinary custom of that place, it was sufficient to prove the defence; seeing the commission directed from the Lords, did not bear that he should cause Sir William subscribe.——The Lords bid Sir William to be re-examined, and to subscribe his oaths; seeing he being a Scotsman, and the commission granted in his favours, he ought to have known what our law did require; and the Lords did declare, that as to all commissions that should be directed hereafter, that it should be ordained particularly.
Fol. Dic. v. 1. p. 317. Gosford, MS. No 583. p. 331.
