Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Laird of Milntoun
v.
The Lady of Milntoun

Date: 26 February 1668

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The Lady Milntoun, having obtained decreet of divorce against John Maxwell, her husband,—the Laird of Milntoun, having right from her husband to her liferent, which right fell by the divorce, pursued a reduction of the decreet of divorce; wherein the witnesses being examined and reëxamined, the Lords adhere to the decreet of divorce, and assoilyie from the reduction. At which time the Lords having allowed him to insist as in reprobators, he now pursues the same for convening the testimonies of the witnesses, because they were corrupted and suborned, both by promises and getting of good deed, and being prompted how to swear, as their oath on reexamination bears: and because their oath is not only suspicious, but impossible; because it is offered to be proven that the parties were alibi, at a great distance from the place where the witnesses deposed that they committed adultery, and that for several days and nights thereafter, and before. The defender alleged, That the libel was no ways relevant; first, In so far as it would convel the testimonies as to the principal points referred to probation, against which no contrary testimonies, either of the same or other witnesses, can be admitted by the law of all nations; otherwise pleas should be infinite; for, if the second witnesses might improve the testimonies of the first, third witnesses might improve theirs, and so without end: and the allegeances that the parties were alibi are most irrelevant, and are ordinarily rejected, as being a contrary and incompatible probation; for, this being a crime unlawful at all times and places, albeit the witnesses should have forgotten or mistaken the time, if they be positive in the act, non obest; and so proving alibi at that time, which is not essential, is of no moment. 3dly. The reprobators, in so far as they would improve and convel the extrinsic points of the testimonies, ad hunc effectum, to render the witnesses infamous, and their testimony invalid as to the whole, which is the proper and only subject of reprobators,—the same is not now competent, unless first, at the time of the taking of the testimonies, the pursuer had protested for reprobators, and had not referred his objections against the hability of the witnesses, to their own oaths, but had only interrogated them of their age, marriage, residence, freedom of partial counsel or corruption, &c.; and, upon the reason of their knowledge in that case, reprobators might have been competent to prove the contrary of these extrinsic points, and so infirm the testimony. But here, the witnesses being examined, especially as to the interrogatories of partial counsel, and as to the reason of their knowledge, and no protestation taken at that time for reprobators, he cannot now make use thereof; and, albeit that reprobators were reserved by the Lords, yet that was not at the taking, but at the advising of the testimonies, when all that is now alleged as to their corruption, arising from the reëxamination, did appear to the Lords, and yet the Lords adhered to the decreet of divorce and first testimonies. The pursuer answered, That he did not intend to convel principally the intrinsic points of the testimonies, but, mainly, to prove their partiality and corruption, and therewith, also, to prove their testimonies were false and impossible. Neither is it essential to protest at the taking of the testimonies; nor is there any necessity that the witnesses' oaths should not be taken on the extrinsic points; but, on the contrary, the intent of reprobators being, that their oaths, as to these extrinsics, being false, they should be found perjured and infamous, and the whole testimonies to fall.

There was no interlocutor, at this time, upon this debate.

Vol. I, Page 536.