Reprobators not competent but when protested for re integra, when other witnesses may be adduced.
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Irving of Lenturk pursues a reduction of a decreet of spuilzie, obtained at the instance of John Ross against Francis Irving, his assignee, upon two grounds; 1mo, By way of reprobator, against the hability of the witnesses, who, by the act of litiscontestation, being limited to witnesses in the neighbourhood, who might know the ordinary sowing and increase of the room that was alleged spuilzied; yet others living at a great distance were admitted, and insisted upon other grounds of inability; 2do, Because Francis Irving having pursued the same process before the Sheriffs, and the same witnesses being adduced there before him, and having pursued a riot upon the same head before the Council, and being there adduced again, and now the third time being adduced before the Lords, it is evident, by comparing their testimonies taken before the Sheriff and the Council, that no spuilzie was proved, and yet no spuilzie is proved before the Session; and, therefore, the witnesses must have contradicted their former testimonies, which necessarily canvels the last testimonies upon which this decreet is founded, the contradiction making the witnesses infamous and perjured; and this decreet is so exorbitant, that though, by a tack of the room, whereof the crop was alleged spuilzied, now produced, it be evident, that the room was set for 20 bolls of victual, yet the crop is made to extend to 18 score threaves of bear, and 27 score threaves of oats, and the price of the boll is L. 8 over-head; whereas, the fiars of the Lothian boll that year was L. 5 the boll; and, by all the testimonies, it is evident to be but one plough, which could not render such a crop. It was answered, 1mo, As to the reprobators, they are only competent when protested for by our constant custom, founded upon most solid and important grounds; for, when witnesses are received, the other party is allowed to be present, and to object against their liability; and when they are examined, they are allowed to be present when they depone de initialibus of their age, residence, being married or not, and of their being purged of corruption and partial counsel, wherein, if they doubt of the truth of their deposition, they may instantly redargue the same, by writ or other witnesses; and, if they cannot, they may protest for reprobators, by way of action, far adducing witnesses above exception, and other probation, to canvel the testimonies circa initialia, which are of purpose required, though they make nothing to the cause; and their being married or not can in no case do prejudice, and seldom their age or residence; and as to these, they are not contested, nor do depone as to the cause; and, therefore, the testimonies may be canvelled, and, in consequence, their cause falls, as being false and perjured witnesses: But if the other party protest not for reprobators, he will never be heard thereupon thereafter; for if he did protest, the adducer of the witnesses, if he found a ground of suspicion, might adduce others; but if there be no protestation, he rests upon these witnesses, and others adduceable die, and yet, 39 years after, all may be called in question, and reduced, upon questioning the hability of the witnesses. Neither was ever reprobator sustained upon pretence of new coming to knowledge, without protestation. And as to the witnesses contradicting themselves, it is not receivable, because that is not circa initialia, but substantialia testimoniorum, wherein there is a concourse of witnesses, which no other probation can redargue, without which there could be no termination of pleas, and there behoved to be a multiplication of contrary oaths; much less can conjectures for a tack-duty, which may be great or small, as the parties agree, or the being a plough infer what may be sown, or the increase, that being most variable, and so can never canvel a positive probation of concurring witnesses.
The Lords found, that reprobators were not competent, but when protested for re integra, when the adducer might adduce others; nor that no posterior testimonies of the same or other witnesses were receivable, or could canvel the decreet; but found, that the contradiction of the witnesses' testimonies in the same cause, formerly given, might canvel their testimonies, on which this decreet was founded; and, therefore, did compare the testimonies, and found two of the witnesses to have given contradictory testimonies before the Sheriff and Council, to those given thereafter before the Session; and, therefore, rejected their testimonies, and ordained one of them, whose contradiction was nine years of difference as to his age, and as to his residence, to be brought before them, that he might be stigmatized as a false witness; but found, that the testimonies of the remanent witnesses did fully prove the whole decreet; and, therefore, assoilzied from the reduction.
Fol. Dic. v. 2. p. 193. Stair, v. 2. p. 687.*** Fountainhall reports this case:
A reprobator, that the witnesses had contradicted themselves, and deponed falsely, both in initialibus et in dictis, and in causa scientiæ; yet every light vacillation is not a ground to canvel testimonies that may proceed either from rusticity, inadvertency, or different stiles of Clerks: Yea, a reprobator is competent, though not protested for: Durandus, De Reprobatione testium, No. II. says, Audiendi sunt etiam sine protestatione, if emergent; and in codice we have a title, that sententiæ ex falsis instrumentis, vel testibus latæ, are nullæ —See Clarus, § De Testibus, where the first deposition is believed, in case of clashing. Reprobators are not for the dicta testium; because, there were no more reason to believe these last witnesses adduced in the reprobator, than to believe the first.—The Lords refused the reprobator, because not protested for; as also, rejected the summons, as it was a reduction, founded on the contradiction of the testimonies taken before themselves, for that dipped on their own decreet; but sustained it as to the contrarieties betwixt their testimonies before the Lords, and these before the Sheriff and Privy Council; and found two of them interfered palpably; and, therefore, rejected their testimonies; and ordained them to be apprehended, to be stigmatized; and though the quantities were exorbitant, yet they would not touch that part.
