If a reprobator be protested for, an action of reprobator is competent after sentence to annul the the same as well as before. But in this case the Lords ordained the reducer to consign L.100 to be given to the defender, in case after mal it should be found that there is no reason for the action.
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One Robison, baxter in Dundee, having obtained decreet in foro contensioso, against David White, maltman there, for payment of the price of certain victual wrongously intromitted with by him; which being desired to be reduced, upon this reason, viz. That the witnesses who proved that cause, and upon which probation the sentence only depended, have since confessed, that they deponed falsely, and were suborned to do the same; whereupon the reducer alleged, That they ought to be re-examined, that the verity might be known, and that he might not suffer by an unjust probation and sentence; and the defender opponing his sentence given against the party compearing, and that there was no protestation made by the pursuer, for reservation of his action of reprobation, which ought to have been done, if he intended to have quarrelled their depositions, and which is the only way permitted in law to parties, fearing to be hurt by the depositions of witnesses, whereby they may help themselves, and not by such actions of reduction, as is now intented, the preparative whereof he alleged to be of so dangerous consequences, that never shall any party be in security, if such reductions be permitted by alleging the witnesses to be suborned, and so to crave them to be re-examined, who after any space may either forget the particulars, whereupon they have deponed, or otherwise may be suborned by the party to alter their depositions: The Lords found, that this, and the like reductions, were receivable, notwithstanding of the sentence given parte comparente; and therefore that they would try this reason, if the witnesses were suborned, and had deponed falsely in prima instantia, and to that effect that they would examine the said witnesses thereupon; and found this action was of the nature of a reprobator; and because there might be peril in the form, to give way to such pursuits, where there were sentences given upon probation against parties compearing, if after trial there should be found no just cause to infringe the sentence, and to cohibit the preparative, if any should move the like action without good grounds; therefore the Lords ordained the reducer to consign L. 100 to be given to the party defender in this process, in case after trial it shall be found that there is no reason for this action; which sum was modified, because the sum contained in the sentence was not far above the penalty, and also the parties were but mean persons; whereas if the sentence had been a matter of more consequence, the Lords would have modified a greater sum for penalty.
Clerk, Scot.
Fol. Dic. v. 2. p. 196. Durie, p. 781.
