[1676] Mor 12114
Subject_1 PROCESS.
Subject_2 SECT. XI. Reprobator.
Date: Paterson
v.
Johnstons
9 November 1676
Case No.No 219.
Reprobator before sentence, for rejecting the testimony of a witness as infamous, not admitted, without citing the witness.
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Captain Paterson having charged Johnstons, sons to Lockerbie, upon their bond, they suspend, and raise reduction upon minority and lesion. The charger offered to prove that they were majors. The Lords preferred neither party to the probation, but before answer allowed either party to adduce witnesses, to prove what was the true age of the suspenders when the bond was subscribed: And they having adduced some witnesses, and the charger being to adduce others, he offered to prove that the suspender's witnesses were infamous vagabonds. It was answered, They were received, the charger being present, and neither objecting nor protesting for reprobators, which are not receivable but when protested for. It was replied, That though after a definitive sentence it will not be called in question upon reprobator, unless protested for, yet this process not being ended, nor the testimonies advised, but the testimonies lately come to knowledge, it is very competent.
The Lords refused to admit witnesses upon the inhability of the witnesses already examined, unless the witnesses whose fame was chiefly concerned were cited; and granted warrant to cite them for that effect.
*** Dirleton reports this case: It was desired by a bill, that a party against whom witnesses had been used, and who had declared, might be allowed to qualify the inhability of the witnesses, and that a term should be assigned to that purpose whereupon it was agitated among the Lords, if a reprobator should be sustained by way of exception, whereupon there would be a new litiscontestation; and it was urged by some of the Lords, that if the inhability of the witnesses should be qualified
upon the ordinary grounds, whereupon the witnesses themselves are interrogated, viz. That they are not worth the Kirig's unlaw and such like that reprobator ought not to be sustained, especially the party being heard to object against the witnesses: And yet the Lords sustained reprobator by way of exception, and without limitation, in respect the oath of the witnesses concerning their own hability is only an oath of calumny, and notwithstanding thereof a reprobator may be pursued by way of action; and the objections against the witnesses may come to the party's knowledge, after they have declared; and as there may be two litiscontestations, if an exception of falsehood, or any other, should arise upon the production of the writs, there is eadem ratio as to the witnesses, seeing the objections against them could not be proponeed before litiscontestation; and, if they be relevant, they ought to be proved; and it is the interest of both parties that the reprobator should be received by way of exception, ne lites protelentur. But the Lords ordained a condescendence to be given in writ of the grounds of the reprobator, and to be given to the other party, that he might be heard to debate upon the relevancy of the same. Clerk, Gibson.
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