Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XII.

Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.

Thomson
v.
Currie

Date: 27 January 1677
Case No. No 276.

After probation by oath, if not positive, but ex auditu, another probation may be admitted ex officie.

Click here to view a pdf copy of this documet : PDF Copy

In a pursuit at the instance of Sir Henry Thomson against Provost Currie litiscontestation being made, wherein it was referred to Thomson's oath, that a ship in question was delivered back in as good condition as she was received; and he having deponed that another person, one of the owners of the ship told him, that she was not in as good condition; which oath being to be advised, it was alleged for Thomson, That his oath proved not the allegiance, and therefore he was liberated from the point to be proved by his oath, seeing our law allows not probation, both by oath and witnesses, as to the same point, and that probation by oath was here chosen by Currie, and not proving. It was answered, That where the oath is not positive, but leaves the matter where it was, as if the party deponed non memini, or deponed ex auditu, as in this case, the Lords who ex nobili officio may and do ordinarily supply the defects of the ordinary form of probation, and if there be semiplena probatio, will after probation renounced, even at the advising, take the oaths of either parties, or other adminicles in supplement; so their noble office is implored in this case, seeing the point to be proved of the condition of a ship, is probable by witnesses, and that one diligence is executed against witnesses, they will yet grant a second term for a second diligence against the same witnesses, for proving the condition of the ship, seeing the oath clears that the deponent knew nothing of proper knowledge, but ex auditu;

Which desire the Lords granted.

Fol. Dic. v. 2. p. 201. Stair, v. 2. p. 500.