A cause advocated from the Commissaries as to a single point, regarding the admissibility of witnesses, and allowed to proceed as to the other points.
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Isabel Stirling pursued Hamilton of Grange, before the Commissaries of Edinburgh for adherence, and offered to prove she was lawfully married to him, and had born him children; and yet he had gone and married another wife. The Commissaries admitted her marriage to probation; and the adducing her father, brothers, and sisters, as witnesses, it was objected, That, by their propinquity of blood, they were inhabile to depone in her favour. Answered, The marriage being private, there was penuria testium, and no others were present.—Replied, Clandestine marriages are not to be encouraged; and if people will go on in that manner, they ought at least to adhibit indifferent unconcerned witnesses.—The Commissaries repelled the objection, and admitted them cum nota.—On this Grange gave in a bill of advocation to the Lords, complaining of their inquity in receiving such partial witnesses. Some of the Lords thought the Commissaries being sole judges, in the first instance, of divorces and adherences, they should be allowed to proceed, though they erred; because there was a remedy by suspension and reduction if they did wrong. Others contended, That the Lords were the great consistory of the nation, above them, and might advocate or remit as they pleased, either simply, or with directions and instructions to the Commissaries how to proceed, as has been several times done; and though the Lords cannot confirm testaments, yet in the case of Calder of Muirton, and Monro of Foulis*, they gave directions to the Commissaries how to proceed in a competition of executors seeking to be preferred to the office; and, therefore, seeing Grange had been several years married, and had children, and was long in the possession, undisturbed and unquestioned by this Stirling's claim; and that it was dissonant to the common principles of law, to prove her marriage by her own nearest relations only; therefore they advocated the cause from the Commissaries only quoad that point of the hability of the witnesses, but prejudice to go on as to the other parts of the process, that being the single point complained on; which is somewhat extraordinary, to advocate as to one part and not in totum; but the reason of this was, that they are judges in such cases privative, in the first instance, except in so far as they commit iniquity.(See Witness.)
