A witness adduced at the instance of several parties having a joint interest, was rejected, being son-in-law of one of them.
A servant hired by the day may be a witness.
Click here to view a pdf copy of this documet : PDF Copy
Mary Erskine, relict of James Hair, against Thomas Robertson, merchant in Edinburgh, and Robert Miln, for repairing her damage in demolishing a tenement lying in the kirk-heugh belonging to her. The Lords, on Castlehill's report, before answer, grant commission to him, and my Lord Drumcairn, to visit the house, and to examine witnesses and workmen anent the condition of the house, if it was ruinous vitio intrinsico the time of the alleged damage, and what condition it is now in, and wherethrough the said damage, if any be, was occasioned; and if Thomas (and Robert Miln his mason) was only digging a foundation in his own ground, (nam unicuique licet facere in suo,) and assign the day of March next for that effect; and grant diligence to both parties to cite witnesses to compear before the said Lords at such times as they will appoint, for Thomas alleged the falling of her gavel was through fault of itself, it having only a mud foundation.
1685. January 28.—Thomas Robertson gave in a bill in his affair with Mary Erskine, mentioned 28th February, 1684, showing, that there was a mutual probation allowed anent the condition of that house, and whence the damage arose, and that he had taken out a diligence, but it was lost, so that the witnesses refused to come in, and therefore craving it might be renewed. The Lords granted the desire of the bill, providing he did not stop nor delay the advising of her probation, when it came in by the course of the roll, but that he should close his probation against the same time.
1685. February 26.—In Mary Erskine's pursuit against Thomas Robertson and Robert Miln, (mentioned 28th January, 1685,) Thomas adducing Mr. James Smith, and some other masons as witnesses, the Lords, on Castlehill's report, sustained the objection against Mr. James, that he was Robert Miln's good son, though he was not related to Thomas Robertson, ab continentian causæ; but repelled the objection against the rest, viz. that they served Robert Miln on day's wages as masons, and allowed them to be received as witnesses.
1685. November 27.—At advising the cause between Mary Erskine and Bailie Thomas Robertson, mentioned 26th February, 1685, it was alleged, 1mo, What he did was auctore prætore, by the Dean of Guild's jedge and warrant, she being cited; 2do, That any damage her house suffered was ex vitio intrinsico ipsius ædificii; for it being near the Cowgate old loch, they had not taken the foundation of her gavel below the bottom of the slimy channel of the loch, and had only built the lowest story of it of mud, or cat and clay. Answered, The Dean of Guild, in ordering a house of 14 story high, to be pinned to mine, to crush it, was not prætor but prædo; and every one cannot build strong work, but must build as their purse can; and if you saw my wall tender, you should not have digged under its foundation, but kept so many feet distance, as in the Roman law; L. 5. C. Finium regund. The Lords demurred on the point of right, that nothing could impede Bailie Robertson in suo ædificare, this not being properly æmulatio vicini, where mihi prodest licet alteri noceat; but they recommended to some of their number, to move him to give the woman something by way of composition.
By that tryst taking no effect, the Lords advised the mutual probation, on the 17th of March, 1686, and found it proved, that the damage which the pursuer's house has received was occasioned by the building of the defender's house; and, before answer, as to the making up of the pursuer's damage, they allow a mutual probation to both parties, to prove the condition the pursuer's house was in when the defender began to build, as likewise what mail or rent the said house would give now, if it were in as good a condition as it was in at the time when the defender Robertson did begin to build his new house.
