Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Brown of Nuntoun, &c
v.
The Town of Kirkcudbright

Date: 15 January 1679

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In a declarator of the right of a salmon-fishing on the Water of Cree, claimed by the town of Kirkcudbright, and Brown of Nuntoun, with concourse of the Bishop of Galloway, as superior,—probation of possession and interruption being allowed hinc inde,—Brown adduced certain witnesses: and against one it was objected,—that he was Brown's good-brother, having married his sister; and against another, that he was his cousin-german.

It was answered to the first,—That the affinity being by Brown's sister, she is long since dead; and so the affinity ceased, at least the ground of suspicion of the witness's partiality: and as to the other, cousin-german by our custom doth not exclude a witness; nor doth our law esteem him a conjunct person, which was never extended to an uncle and nephew.

It was replied, That affinity doth not cease by the death of the wife; neither doth the respect that might bias the witnesses; and, upon that same account, a cousin-german is not an unsuspected witness; and, in heritable rights, witnesses should be above exception.

The Lords rejected both the witnesses; unless it could be made appear there was penuria testium; in which case they allowed them to be received cum nota.

Vol. II, Page 672.