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It was objected against a witness, That he was testis domesticus, being servant to the defender; at least having been his servant the time of the citation: Whereunto it was answered, That he was not presently his servant; and though he was his servant the time of the citation, he might now be a habile witness: The reason, why servants cannot be witnesses in behalf of their masters, ceasing in this case viz. That their masters might have influence upon them; and that they may declare in their favours, out of fear, to be put out of their service: And as to the pretence that it is presumed, that the defender put the witness out of his service, of purpose that he might be used as a witness, the same doth amount only to præsumptio hominis, which cedit veritati: And animus and design not being proveable, but by the oath of the party, the defender and the witness were free to declare, that he was not removed out of the defender's service upon the design foresaid; and it was more strongly to be presumed, that neither the defender, being a person of quality, nor the witness, would perjure themselves.
It was farther urged, that the witness was to be used upon a paper that had been produced after the intenting of the cause, and for improving the date of the same; and that he was removed out of the defender's service before the production of the said paper; so that he could not have that prospect and design to use him as a witness, and that he was removed upon the account foresaid.
The Lords, before answer, ordained, that the time of the production of the said paper might be tried.
Reporter, Redford.Clerk, Gibson.
Dirleton, No. 391. p. 191.
