Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lady Milnetoune v. The Laird
1667.
January31, and
1668,
February24.
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1667. January 31.—The Lady Milnetoune being married to Maxwell of Calder-hall, her second husband: who disagreeing with her, she sells her liferent to her step-son, Sir Walter Whytford of Milnetoune: and he having before that disposition fallen in adultery, she pursues a divorce, and gets it, upon the probation of one single witness, and a number of concurring pregnant presumptions; wherein there was compearance, and witnesses adduced. Which decreet being thereafter called in question before the Lords, it was
Alleged,—That one single witness could not prove. 2do, That the witnesses adduced were bribed, and got money to depone; so the question was, If singularis testis, in crimes, might prove. 2do, If witnesses once adduced and received in judgment without any exception or objection in prima instantia, may be quarreled in secunda, as to reduce the decreet.
The Lords found, that one single witness, with the presumptions, was relevant; and the rather, because it was known that Calderhall was a most vicious man; and as to the witnesses, they found it not competent now to make that a ground of reduction, but reserved reprobator to them 011 that head. Vide infra 24th February, 1668, thir same parties.
It may seem hard that when objections are omitted against witnesses which were not competent in prima instantia, being noviter veniens ad notitiam, that they should not be received in secunda.
But the notoriety of the thing induced the Lords thus to decide, and that the poor gentlewoman was reduced to great poverty.
1668. February 24.—The Lady Milnetoune having got a divorce from her husband upon adultery, which was proven by witnesses who were alleged to be bribed by theLady; this common objection against witnesses being omitted in the divorce, there is a reduction raised of this decreet on this ground, that the witnesses were corrupted; and the action was a reprobator of the witnesses upon whose deposition divorce followed, and the questions ran, 1mo, If in law the depositions of witnesses might be reprobated quoad dicta et testimonia testium or only quoad initialia; as the objections against the inhability of witnesses being omitted in prima instantia, they might be reprobated in secunda. 2do, If the witnesses might be only punished in their persons, or if the sentence which followed on their depositions ought to fall; and what effect the probation of a reprobator of witnesses has in law.
