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Scottish Court of Session Decisions >>
Gilbert Elliot of Stone-Edge v Elliot of Heriot, &c. [1698] 4 Brn 425 (20 December 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040425-0844.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Gilbert Elliot of Stone-Edge v. Elliot of Heriot, &c
Date: 20 December 1698
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Crocerig reported Gilbert Elliot of Stone-edge against Elliot of Heriot, &c. This was a reduction and improbation of a disposition granted by himself of some lands. The defences were, 1mo. I'll not take a day to produce, because you show no right in your person to the subject in controversy. 2do. I cannot be obliged to take a term in the improbation, because I crave your oath of calumny, if you can deny that the writ is truly subscribed by you; and, seeing you cannot pretend falsehood, ’tis unreasonable to sustain the reason of improbation, whatever may be done in the single reduction.
Answered to the first,—He needed no title, seeing he only quarrelled a deed flowing from himself. To the second,—He is not obliged to give his oath of calumny on a part, but only upon the whole libel, quod lis sibi justa videtur; and though it seems odd to permit a man to insist on a conclusion of falsehood when he knows the writ is true, yet ’tis only to force production, because the certification in a simple reduction is slender; and if such an oath of calumny were once sustained, it would cast the most of the improbations pursued.
The Lords repelled these defences in respect of the answers.
