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A party was found entitled to improve a citation altho it was alleged he had acknowledged it, as the effect only was to repone a party to make oath on a debt.
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The Lord Treasurer and George Thomson, writer, having pursued one Rig before the Exchequer, for some monies owing by him to Robert Philip, who was found to have intromitted with some of the King's Majesty's taxations in Dumfries; and the debt owing by Rig to Philip being referred to Rig's oath, and he summoned to that effect, and holden as confessed, and decerned; he intents improbation of that his citation, by action before the Session; wherein the Treasurer and George Thomson alleged, That he could not be heard to improve that execution, because they referred to the improver's oath, that the execution was the proper hand-writing of his own father, all written by his father's own hand, and subscribed by him, and stamped with his stamp; and so he ought not to be heard now after his father's decease, to improve that deed, whereby to make him infamous, and to lacerate the name and fame of his father, after his death, which is against all humanity and Christianity, for a son to do to a father, thereby to accuse him of such a fault, for the which his father, if he were living, might be criminally accused and executed, to an ignominious death; which accusation, in all law, civil and Christian, is denied to a son against the father; specially ought it so to be found in this case, seeing he offers to prove, that the same party improver got a copy of the same summons, whereupon he was holden as confessed, sent and delivered to him, which came to his hands, and whereupon he compeared before the Exchequer, and produced the copy out of his own hands, and sought protestation against the summons, and offered him ready for the cause; so that he cannot be heard to improve the same, having acknowledged his citation, as said is. The Lords, notwithstanding of the allegeance, which they repelled, found that he might be heard to improve this citation, seeing it tended only to repone the party, to give his oath upon the debt; or the party might prove the debt otherways than by his oath, as he best might.
Act. Nicolson & Burnet.Alt. Stewart & Cunningham.
Durie, p. 541.
