Scottish Court of Session Decisions

Subject_1 WITNESS.

Monteith
v.
Heritors of Abbots-Kerse

Date: 24 November 1709
Case No. No. 138.

A witness repelled, as being within the forbidden degrees of propinquity to the adducer, although the other party had ex intervallo before adduced him.

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Lord Cullen reported several objections against some witnesses. Monteith of Millhall, as heritor of the mill of Abbots-Kerse, pursues a declarator of thirlage and astriction against the feuers of the Barony; and they repeat a counter-process of immunity and exemption; and there being an act, before answer, extracted for proving their use of coming to the mill, and the possession as to the quantity of multures, and likewise of the frequent use and custom of going to other mills, not by clandestine stealth, but openly and avowedly; and witnesses being adduced for proving their astriction, it was objected by the defenders against one called Mitchell, that he could not be received, because he was not worth the Queen's unlaw, which is liquidated to £10 Scots; and because all objections against witnesses must be instantly verified, and must not run a course of probation, they offered to prove it by his oath; and he deponed he could not well tell if he was worth so much. And it being contended, that this was sufficient to cast him, it was answered, that there being penuria testium, their hability was not so narrowly to bescanned; and whatever he said, yet the clothes upon his back were worth more; Besides being a servant, he had a yearly fee. Replied, The legal sense of the words what a man is worth is always deducto ære alieno, and they instructed by bonds produced, he was owing more than either his clothes or fee amounted to; and in dubiis intepretatio semper sumenda est contra proferentem qui potuit apertius dicere. The Lords thought that witnesses by collusion might be prevailed with so far to gratify the other party as to cast themselves; therefore they ordained him to be re-examined what yearly fee he received; and if he truly believed that his debts exceeded his free gear, so as he would not be worth £10 free. (See No. 139. infra.) The second objection was against Johnston, another witness, that the pursuer having cited and adduced some of the defenders as witnesses as to the rest, the Lords rejected them because of the connection of the cause; now he cites some who are within the forbidden degrees of relation to these defenders; against whom it was objected, that they were no more receivable than the defenders to whom they stood in blood related. Answered, He did not adduce them to be anywise interrogated as to their friends' concern, but only to depone against the other defenders to whom they had no relation; and this were to stretch it too far; it is sufficient to cast a witness, that consimilem fovet causam, and so will probably favour it, but to extend it to the blood relations of him who hath a parallel case, so as to repel them, were fictio fictionis. The Lords, by plurality, received him cum nota, though some were for admitting him simply. It was objected against a third witness, that he was a moveable tenant, and so not receivable in law. Answered, He was cited and made use of by yourself, and so being a common witness, can never be refused for me as well as you. Replied, One may be a habile witness for me, that cannot be for my adversary; as for instance, I may introduce my contrary party's father, brother, or domestic servant, to bear witness on the points I am to prove; and yet my party can use none of these to be witnesses against me; and so does Sir George Mackenzie think in his Criminals, Tit. Probation by Witnesses; and Stair, on the same title. The Lords found where such witnesses were cited, the contrary party might use counter and cross interrogatories; but if that was omitted, they could not be received to be re-examined of new at the instance of the party to whom they were related; so that his using them did not rehabilitate them ad omnes effectus; and therefore they sustained the objection, and repelled the witness.

Fountainhall, v. 2. p. 529. *** Forbes reports this case:

In the action at the instance of Millhall against the heritors of the Barony of Abbots-Kerse, the Lords repelled a witness as being within the forbidden degrees to the adducer, albeit the other party had before adduced him; in respect, though when one party produceth a witness who is within the degrees to the other, that other may, notwithstanding his propinquity, put counter-interrogatories to the witness at the same time that he is examining by his adversary, he cannot crave him to be re-examined ex intervallo, more than he could have produced him at first at his own instance.

Forbes, p. 355.