Probation of witnesses adduced against a defunct not probative against a person who represented the defunct's father.
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This cause having been debated upon the 6th day of January current, No 371. p. 12226, voce Process, it was then represented as containing a transference of a former process at the pursuer's instance, against the late Earl of Nithsdale, wherein probation was led, and the cause concluded, and in respect of the state of that process, the Lords refused to admit a defence upon a writ suspected, being registered 70 years after its date, and never produced before, and many presumptions of falsehood alleged against it. But now having considered the process for advising the probation, there was found no transference in it, but a process at the pursuer's instance against this Earl of Nithsdale, as heir to Robert Earl of Nithsdale, father to the last Earl, who was obliged to pay the half of the worth of the lands of Dolphington, and till then to pay the half of the rents; whereupon this question arose to the Lords, whether the depositions of the witnesses taken in the process against the late Earl of Nithsdale were receivable against this Earl of Nithsdale; and they found, that seeing the process was not transferred against this Earl, that there was no instruction that he was heir to the late Earl, and therefore the probation against the late Earl was as inter alios acta, and was not receivable against this Earl; for albeit probation against a party at the instance of one pursuer is sometimes receivable against that same party at the instance of another pursuer, as often occurs in the probation of passive titles; yet the defender against whom the probation is used is always the same person, or representing the person against whom the former probation was used. And likewise, the Lords found, That seeing this was not now a concluded cause, that the defence formerly repelled, in regard of the state of the process, should be received when the defender insisted therein.
Fol. Dic. v. 2. p. 346. Stair, v. 2. p. 305.*** Dirleton reports this case:
William Glendinning having pursued the now Earl of Nithsdale, as heir to Robert the late Earl of Nithsdale, his father, for fulfilling a minute betwixt the said Robert Earl of Nithsdale and William Glendinning of Lagan, from whom the pursuer had right; and for payment of the half of the duty of the lands of Dolphington, conform to the said minute; and litiscontestation was made in the cause; and, for proving the rent of the said lands of Dolphington, it was craved, that the depositions of witnesses that had been adduced in the like process, intented against the said Earl, as representing his father, for implement of the said minute, should be received in this process; but the Lords having considered, that the said Earl did not represent his father active, but was pursued only upon the passive titles; and that this process against the now Earl, is not against him as representing the last Earl; neither was it alleged, that he represents him; Therefore they found, that the said depositions could not be repeated in this process, seeing res was inter alios acta, and acta in una judicio non probant in alio, nisi inter easdem personas, or those who represent them.
