After succumbing in the direct manner of improbation, whether the indirect be competent.
L Renton v. L Wedderburn and Others.
Date: 7 July 1632 Case No. No 224.
In an improbation of an inhibition, the messenger and witnesses being examined, approved the executions. The Lords, notwithstanding, allowed the pursuer to improve indirectly.
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In an improbation of an inhibition, executed at the instance of two daughters of John Stuart of Coldinghame, against Sir George Hume of Manderston, who was constituted their debtor in some sums of money, and which inhibition was, by pursuit of improbation, quarrelled by the Laird of Wedderburn, the Lord Erskine and some others, creditors to the said Sir George; in the which improbation, the direct manner, viz. the messenger executor and witnesses insert whereof one was dead, and the other two, who were living, were examined, and approved the inhibition and whole executions thereof; and in respect whereof the defender in the improbation alleged, That the process should be holden as concluded and advised; and the pursuer desiring that he might give in indirect articles of improbation, which the defender alleged ought not to be permitted, where all the direct were extant and approved. The Lords found, That they would receive the indirect articles, and consider and advise what substance and relevant argument was qualified in them; which being given in, the Lords advised them, without any answer given in by the defender thereto; and one of these articles bearing, that the two parties, at whose instance the inhibition was raised and executed, viz. the two sisters, had corrupted the witnesses and the one sister had given them forty double angels, and the other fifteen, at the least had promised the same to them; the Lords found this article only admissible to be proved by the oath of the Laird of Renton, who had married one of the sisters; and found, That they would admit nor receive no other probation at all therein, neither by witnesses, nor by trial and examination of the witnesses alleged to be corrupted, nor by the oaths of the women alleged corrupters, whose oaths the Lords found could not be taken in prejudice of the Laird of Renton, now husband to one of the sisters, nor in prejudice of the husband of the other sister, albeit the sisters were principal parties, and the husbands only were parties for their interests. And albeit it was alleged, That the giving or promising of so large money to the witnesses by the wives, could not be presumed to have been done but by the knowledge of the husbands in respect both of the greatness of the quantity, and that the wives cannot in law be esteemed to have so much money without their husbands, ob suspicionem turpis quæstus et ut talis suspicio evitetur, it was questioned, if such promises or good deeds given to the witnesses were proved, and that the husbands were not accessory thereto, and that the deed itself were tried to be true, what should be the consequence; whereanent it is certain, that albeit the deed be true, yet if the party user of the writs, and who is reputed principal party, be accessory thereto, that he cannot in law reap benefit by such indirect dealing, which is prohibited in law; no more than the party, who, albeit in a just cause, gives bribes to his judge, ut pro se ferat sententiam, pro quo vide, L. 2. § 2. D. De condictione obturpem causam.——See Process. Proof.
Act. Nicolson & Mowat.Alt. Stuart & Craig.Clerk, Gibson.
Fol. Dic. v. 1. p. 458. Durie, p. 641
