Reprobators are not competent but when protested for re integra, when other witnesses may be adduced.
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Alexander Irving of Lenturk raised suspension and reduction against John Ross in Strathmore, and Francis Irving, brother to Drum, of a decreet of spuilzie and wrongous intromission, upon these grounds, That the witnesses had declared falsely, in so far as, being adduced by the pursuer before the council, they had declared they knew nothing, and in the process before the Lords, they declared fully and positively as to all that was libelled; and, 2do, They declared upon quantities so exorbitant, that the same do amount to the twentieth corn, whereas, in the country where the corns grew, they have scarce the third corn.
The Lords found, that the decreet being in foro, could not be questioned upon any ground, and in special upon the testimonies of the witnesses as false, seeing there should be no end nor period of pleas, and there being no protestation for reprobators, Some of the Lords were of opinion, that as a decreet founded upon false writ may be questioned, so when the same is founded upon false testimonies, and the falswhood is evident, and may be qualified sine altiore indagine, the same may be likewise questioned; and the remedy of a reduction of decreets in foro being denied, only upon that pretence of competent and omitted, ought not to be denied in such case, seeing the ground foresaid, that the testimonies were false, doth arise upon the depositions the witnesses, and was neither known nor competent to the defender, who is not allowed to see nor to question dicta testium; and a remedy, which in law and reason ought to be allowed, is not taken away, because it is not protested for by a party, who for the time did not know that there were any ground for the same.
Reporter, Newbyth.Clerk, Gibson.
Fol. Dic. v. 2. p. 193. Dirleton, No 361. p. 175.*** Stair reports this case:
John Ross having obtained decreet against Irving of Lenturk and others for his whole corns in barn-yard, which they promiscuously intromitted with and disposed of there was a bill of suspension presented against the decreet, upon these reasons, 1mo, That by the act of litiscontestation, the libel was to be proved by witnesses that lived thereabout, who might know the quantity of the crop; and the witnesses received lived 20 miles off; 2do, The quantities and prices were most exorbitant; 3tio, Francis Irving, who had the right, and pursued in his cedent's name, is known to have led horses that he used for witnesses; 4to, That these witnesses were inhabile, neither being famous, nor worth the king's unlaw; 5to, It was offered to be proved, that they being sworn in the council, did depone contrary to their deposition before the Lords, and so their testimonies are false, and themselves infamous; 6to, It is offered to be proved by the charger's oath, that both the quantities and prices are exorbitant. It was answered for the charger, That to all these specious and false pretences, he oppones his decreet in foro contentioso, wherein the defenders compeared at all the diets of process, and were present at the examination of the witnesses and advising of the cause; and it would make processes endless, and unsecure all the lieges, if such solemn decreets were to be drawn in question upon any of these grounds alleged, for such may be pretended against each decreet, and what concerns witnesses, no party can know the same, they being close, and advised without publication, by the constant custom of this kingdom; and as to the hability of the witnesses, the law hath afforded this remedy, and no other, that if their inhability can be instantly verified when they are received, by the oath of the adducer or the witness's own oath, or by any other witness or writ, they are rejected; and if the party cannot instantly verify, he may protest for reprobators to prove their inability by way of action, which if he omit, he is understood to acquiesce, and never to be heard thereafter; and therefore, reprobators are never admitted but when protested for, when the party compears at their examination; and though reprobators were protested for, and depending, law admits not the quarrelling of the dicta testium as false: And as to the offer to refer the quantities and prices to the charger's own oath, that was competent before probation by witnesses, but is not competent after, as inferring perjury and defamation of witnesses, and it would be an universal protest against all decreets upon probation by witnesses.
The Lords repelled all the reasons in respect of the answers.
Stair, v. 2. p. 429.
*** A similar decision was pronounced, Paip against Newton, No 143. p. 9012, voce Minor.
