Reprobators are not competent, but when protested for re integra, when other witnesses may be adduced.
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The Laird of Milton insisted in his action of reprobator, wherein this point of the dispute was only discussed, whether reprobators were competent, unless they were protested for at the taking of the witnesses' testimonies, or whether it were sufficient to protest at any time before sentence, or if there were no necessity at all, and especially as to this case. It was alleged there was no necessity of a protestation, and if it were, there was a protestation at the re-examination of the witnesses, and also before sentence. It was answered, That a protestation was most necessary, because the want of it was an acquiescence in the hability and honesty of the witnesses; and if it should not be necessary, all processes these five years might come in question upon reprobation, which were of dangerous consequence; and therefore, as incidents are not competent, but when protested for, no more reprobations; as to the alleged protestation, at the examining of the witnesses, it is but subjoined to the interrogatories, only subscribed by one of the four examinators, who subscribed the testimonies, and who does not remember of his subscription, so that it has been surreptitiously obtained from him. As to the other protestation, the same was not when the the witnesses were taken, but at the conclusion of the cause. It was answered, That it was in competent time, even at the conclusion, and that the reprobators were not only not rejected, but expressly allowed by the pursuer, by way of action.
The Lords found this reprobator competent in this case, but did not resolve the point generally, whether they were competent, when not at all protested for; as to which the Lords were of different judgments, but most seemed to require a protestation, ante rem judicatam, yet so that if it were omitted, the Lords might repone the party to reprobators, if any emergent made the testimonies suspected through inhability or corruption, in the same manner as the Lords will repone parties against certifications, circumductions of the term, and being holden as confessed.
