A hired servant found admissible after being dismissed.
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Mr. William Cochran of Kilmarnock pursuing Robert Cunningham, the factor of Newark, for count and reckoning, and adducing one James Sclater to be a witness of his intromission with a wood, and some grass; it was objected, That he was his bowman and moveable servant; and the Lords, the last winter session, found him not receivable: Since that time, Kilmarnock resolving not to continue his bowery, he dismisses him from his service, and brings him in of new to depone. It was objected against him, 1mo, He was ultroneous, and showed too much willingness and concern to depone in this cause. Answered, The witness being brought in upon a caption, no fault could be imputed to him. Replied, Being once cast, he could not be adduced in that cause without a new special warrant from the Lords. Duplied, The cause of his inhability ceasing, viz. his being bowman, his capacity reconvalesced, and so he might be lawfully adduced. The Lords found the caption purged his being ultroneous, but thought he could not be adduced without a new warranty but the material difficulty lay in this, that a master had no more ado but to put away his servant where he had been rejected on that head, and then seek to have him received; and who knows, but after his deponing he may take him back again? so the preparative is pessimi exempli. Answered, 1mo, However this might be dangerous in servants or tenants, yet there was no hazard in a bowman, who is less exposed to influence than other menial domestic servants; 2do, Kilmarnock, the adducer, was willing to give his oath, that he had not put him away eo animo to capacitate him, but because he had no more use for him, and that he was a necessary witness; and Sclater, the witness, was ready to depone there was neither design nor concert betwixt his master and him. The Lords, in this special case, allowed him to be received, but appointed him to be called on a new citation. Some were only for taking him cum nota, because they thought it near to the case of a moveable tenant rejected from witnessing on that head, and his master giving him a tack with design to habilitate him; which would not be sustained.
