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In a question upon the edict Nautæ, Caupones, two witnesses were led for the pursuer, and proved, that a cloakbag was brought into the defender's house. At advising the probation, the defender objected to one of the witnesses, That he was ultroneous, and had come to the messenger, and desired himself to be cited.—Answered, Reprobators were not protested for before deponing.—Replied, Reprobators are still competent before sentence; and the defender was absent at deponing, being hindered by a great storm.—The Lords found the reprobator receivable, though not protested for at the time.
In this matter of fact, where there was penury of witnesses, it being objected against one of them, after he had deponed, That he was ultroneous in coming to the messenger, and desiring himself to be cited, and so prodiaerat testimonium, the Lords considered that this was nuda emissie verborum, the import whereof might be easily mistaken, therefore, they found it only probable by the witness's own oath, and granted diligence to re-examine him.
Fol. Dic. v. 2. p. 194. & 195. Fountainhall.
This case is No 5. p. 9237. voce Nautæ, Caupones, &c.
*** The like was found, where it was objected against a witness, That he had declared he would swear best to them who paid him best.—Fountaiphall; Forbes; 17th June 1707, Livingston contra Menzies, No 69. p. 3265.
