A party cannot be compelled to examine a witness he has cited.
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The deceast Farquhar of Gilmillscroft having got a disposition from Campbell of Glasnock, the same was quarrelled, in a reduction, as granted the day before he died, when he was utterly insensible of what he was doing; and the other contending he was then rational, and acted several things as pertinently as ever he did at any time before; a conjunct probation was allowed anent his condition at that time. And Gilmillscroft adducing two witnesses, Davidson of Holehouse, and the other called Weir, it was objected against the first, That he could not be a habile witness, because he might tyne or win in the cause; in so far as he having trusted Glasnock with the right of a bond, he took a retrocession from him that very day Gilmillscroft's disposition was subscribed, and so consimilem fovet causam; for if it shall be proved the granter was then insensible, by the palsy and lethargy affecting him, his retrocession falls to the ground, and so is concerned to depone that he was rational then, to support his own right. Answered, That right is long ago sopite and extinct, the debt being transacted and paid many years since, and all the writs given up and cancelled, so he is under no hazard that way. Replied, Glasnock's heir may reduce the retrocession, if he was then incapable to grant, and so cause him repeat the money. The Lords thought there was some weight in the objection; but reserved the consideration of it till advising. It was objected against Weir, That he had given bond to Gilmillscroft for a sum of money, and he had him under diligence for it, which impression might bias him to be partial. Answered, The bond was granted for the price of some sheep he had bought of Glasnock's executry, and, seeing the right was yet sub judice, he was willing to pay it, but knew not to whom, till the competition was discussed. 2do, It is no relevant objection against a witness that he is debtor to the adducer, seeing it is vis legalis to cause one pay their just debt. The Lords repelled this objection. Then Glasnock's heir complained, That Gilmillscroft had cited Mr Samuel Nimmo, late minister of that parish, and who being with the defunct in his sickness, could not but know his condition, and yet now shunned to adduce him, by which he was lesed, seeing he might have the benefit of putting cross interrogatories; and therefore craved that either he might examine him, or give him the use of his act to cite him. The Lords found a party could not be compelled to use any witnesses but whom he pleased; and therefore refused the desire, as informal and irregular. But the heir might have cited him, if he had done it debito tempore; but then he must extract the act himself, and take out his diligence, as he and the Clerks shall agree. (See Witness.)
Fol. Dic. v. 2. p. 191. Fountainhall, v. 2. p. 633.
