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Found that a reprobator of witnesses cannot be received, though ever so clear, before pronouncing decree; but only if protestation has been admitted, which may afterward be insisted on.
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In the action betwixt George Douglas, Bishop of Murray, John Douglas, and the Laird of Wester Wemyss, anent the teinds of Abernethy, there were certain witnesses examined, in an incident diligence, for proving the tenor of an obligation. Before the pronunciation of the decreet, the Bishop gave in a supplication, and desired to be heard, to improve and falcify a witness, called Ogilvy, and his deposition, which witness was very suspect to sundry of the Lords, and alleged, on his supplication, certain practicks past of before, betwixt the Earl of Errol and the Laird of C. which were recent in the Lords' memories. The matter being reasoned among the Lords, some were of that opinion, to grant the desire of the bill, conform to the practicks past of before, and also conform to the common law, nam si opponens contra testes offerat promptam suæ oppositionis causant ut in presenti causa offerebat Episcopus, to improve the witness, by his own hand-writ, tunc incontinenter recipiendam eam probationem. It was reasoned upon the other part, that if it was brought in practice of receiving of improbation of witnesses, before the giving of the sentence and decreet, there would rise, and follow, many great inconveniences, et nunquam esset litium finis, for they would ay take to improve witnesses, and stay process, and of the practice of this country there is not apertura et publicatio testimoniorum, but judici tantum, and the party is not herein hurt, because, if he protest, and take instruments and protest of the witnesses' depositions, after sentence, he will be heard to improve the same, et sic beneficio protestationis ei semper servetur integrum jus reprobandi personas testium. The Lords would not grant the desire of the bill, and refused the reprobation of witnesses, before the decreet be given, tanquam contrarium praxi.
