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Francis Irving pursues reduction of a decreet of the Lords, upon reprobator of the testimonies of the witnesses, whereupon the decreet proceeded. The defender alleged, That reprobators were not competent, because not protested for at the examination of the witnesses, at least before sentence; 2do, The reason of reprobator is mainly contra dicta testium, because the witnesses had sworn false, contrary to their own oath, in the same cause, taken before the Council and Sheriff of Aberdeen; but reprobators were never sustained upon canvelling of the verity of the testimonies, as to the cause in which the witnesses concurred, though their oath may be canvelled as to the preliminary questions of their age residence, being free of partial counsel, or as to their reason of knowledge, in all which they are single witnesses, and not contestes. It was answered, That though reprobators used to be protested for, yet that cannot exclude any inability emerging by their testimony, which, by the law of this kingdom, not being published, the pursuer could not know the same; but finding by the sentence, that they had proved contrary to what they had formerly proved, the concourse of these testimonies, as inconsistent, did necessarily infer the witnesses to be perjured, and so inhabile.
The Lords inclined to sustain the reprobator, upon the contrariety of these testimonies, as emergent, though reprobators were not protested for; and, therefore before answer, gave warrant for production of the testimonies taken formerly before the Council and Sheriff of Aberdeen, that, by comparing there, of with the testimonies taken by the Lords, both testimonies being shortly after each other, it might appear whether the witnesses became infamous by swearing contrary to one another.
