Bailie Tod and the Procurator-Fiscal of Musselburgh, v. Bailie Crookshanks
1722.November. Case No. No. 148.
In a process for a verbal injury done to a present Magistrate pursued after he was out of office, his colleague, who fined the offender for that injury being also exauctorated, was admitted as a witness for the pursuer, and the town officers were also received as witnesses for him.
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In the process at the instance of Bailie Tod against Bailie Crookshanks, for a verbal injury committed by him against Bailie Tod when a present Magistrate, the pursuer adduced Bailie Mitchel and two common town-officers for witnesses.
Objected for the defender: 1st, Bailie Mitchel cannot be admitted a witness, in respect at the time of committing the alleged injury he was a Magistrate himself, and pronounced decreet against Crookshanks for the injury; which showed his affection in the cause, and is something more than the giving partial counsel; 2do, The two common officers having a dependence upon, and being under the impression of the Magistrates of the burgh, cannot be received witnesses for the pursuer, who, though he be not a present Magistrate, is still upon the council.
Answered: Though Bailie Mitchel were still in office, he might be judge to an action for injury done to his colleague, there being no parity betwixt his Judging in the cause, which is ex officio, and the giving partial counsel, which is an officious intermeddling in an affair without a call; besides, both the pursuer and Bailie Mitchel being now exauctorated, they are to be considered only as in a private capacity; consequently, 2do, They cannot be supposed to have any authority over the officers produced as witnesses of the personal injury done to Bailie Tod, though aggravated by the circumstances of his being a Magistrate.
The Lords repelled both the objections made for the defender, and allowed Bailie Mitchel and the town-officers to be received as witnesses.
