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In an action Francis Stuart against Scot for reduction and improbation, the Lords found, that a witness ought to be examined ad futuram rei memoriam, concerning the verity of the writs taken to be improved, in respect of the age and sickness of the witness, who was desired to be examined; and this was found by the Lords, albeit it was alleged by the defender, that such' examinations and depositions are never appointed to be received by the Lords in actions of improbation, as this action betwixt these parties is, but the same is done sometimes by the Lords in actions of other natures, but not in improbations, especially it ought not to be granted, where this action being both reduction and improbation, the party cannot crave the same, except he would pass from the reduction, and that litiscontestation were made in the improbation; neither of which being done, the desire thereof ought not to be granted; the which allegeance was repelled, and the witnesses ordained to be examined.
Act. Stuart & Craig.Alt. Nicolson, Lawtie, & Scot.Clerk, Gibson.
Durie, p. 62.
