Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

John Robertson
v.
David White

Date: 3 December 1635

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John Robertson, maltman in Dundee, obtained a decreet against David White, maltman there, before the Lords, decerning the said David to pay him 26 bolls malt, which he had intromitted with out of a loft of the charger's; whereupon David being charged, suspended, and intented reduction, upon this reason, That the decreet proceeded without any lawful probation, in so far as, it being proven by witnesses, the said witnesses did depone falsely, and against the truth; likeas, since their depositions, being accused thereof, they denied that ever they knew the suspender had intromitted with the quantities libelled, as instruments of their confession taken bear. Likeas, the suspender offers to prove that there was no more malt in the charger's loft than eight bolls, which he poinded, and no more; and that by the messenger, comprisers, and other famous witnesses; so, there being great presumption that the witnesses have been suborned, he craved that the witnesses might be re-examined before the decreet were put to any further execution. The charger opponed his decreet gotten in foro contradictorio, and that, if this were sustained, there should no decreet be sure, if a party were permitted to call in question the witnesses' depositions after decreet obtained; especially this suspender could not be heard to do it, because he was present when the witnesses were received and admitted, and did not quarrel them at that time, and so can never be heard to do it thereafter; at least, he cannot do it, hoc ordine, but by way of reprobator, which he likewise cannot have, because he did not protest for it the time of admitting of the witnesses. The Lords, notwithstanding, granted letters to the suspender to bring over again the same witnesses, to be re-examined upon the suspender's charges, and modified presently £100 of expenses, to be paid by him to the charger, in case he failyied in proving the witnesses to have been suborned, and to have deponed falsely.

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