Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Thomas Stuart of Fintilloch
v.
John M'Whirter, Elder of Garrihorn

Date: 4 December 1713

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In the complaint, at the instance of Thomas Stuart against John M'Whirter, concluding damage for his granting commission to John M'Whirter, younger of Garrihorn, his son, to arrest the complainer in England, upon a debt that lay suspended by the Lords of Session: the verity of old M'Whirter's granting such a commission being referred to his oath by the complainer, he deponed that he gave no such commission to his son. Thomas Stuart,—having, before this oath was advised, recovered from young Garrihorn's doers, the principal commission, bearing old Garrihorn's subscription to it, and discovered that he had deponed negative concerning his giving the commission to his son; because he gave it not out of his hand to him, but laid it down upon a chest or table in his own house, that his son, then present might take it up, as he did;—supplicated the Lords to grant him a diligence for citing witnesses to prove that and other matters of fact, in relation to the father's granting the commission to his son.

Answered for old Garrihorn,—That he having deponed, deferente adversario, no farther proof could be adduced to redargue his oath quoad effectum civilem, but only as to punishment for perjury.

The Lords, before answer, granted diligence for citing witnesses to prove the matters of fact aforesaid, not to redargue the oath, but only to clear it. Yet some of the Lords were not clear in this point; thinking, that if the artifice of laying down the commission, to the end that the son might take it up, were proved, the father might thereupon be criminally insisted against, as guilty of perjury.

MS. page 9.