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A man under caution to underly the law for theft, maybe witness so long as he is not tried nor convicted guilty. He cannot be witness against me, whose brother I have wounded, albeit the witness declare that he bears no feud against me.
Haddington MS. v. 2. No. 2856.*** Nicolson reports this case:
Alexander Elliot, the witness produced, cannot be received, because the defender against whom he is produced for proving the pursuer's replies, wounded the witness's brother, and left him for dead in presence of this witness himself, and so must be presumed to bear him at great ill-will. Answered, That the witness will make faith he bears not ill-will to the proponer; repels him a testimonio ferendo.
Item, The other witness within this 15 days, begged almes frae the defender, and got both meat and silver. Answered, The witness has free gear worth the King's unlaw. Repells him a testimonio ferendo.
Item, Another witness is accused before the justice of theft, and admitted on caution to answer at the next ayre, or on 15 days warning, and so is infamous. Answered, He is not convict. Admits him witness. Protested if he be convict ante conclusum in causa, his deposition work not.
The witness is tenant to the producer, in so far as he has a house of him for payment of a mail in the town of Leith. Answered, Leith is a burgh of regality or royality, and tenants of houses within burghs of regality or royality may be witnesses in their landlord's causes, because they have no commodity of the house by the worth of the habitation which they pay their landlord; and if they were removed, they might have another as commodious easily in tanta frequentia, so that they are not so suspect of partiality in favours of their landlord, seeing they must not fear his removing. Admits the witness.
Nicolson MS. No. 544, 545, and 546, pp. 374. and 375.
