The Earl of Wemyss v. Mr Alexander Gibson of Durie.
1724.
February Case No. No. 155.
Day-labourer.
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The Earl being in possession of a dam upon the water of Leven, a little below where the burn of Kennoway falls into it, by which he had the benefit of both waters, and from thence he carried a stream for the use of his corn mills and coal engines;
Durie had lately diverted the water of Kennoway; upon which the Earl brought a process of declarator against him, concluding, That he had no right to carry off any part of the water, in respect that the Earl and his predecessors had been immemorially in possession, and that his mills and coal engines were stopt from going for want of water in the summer-time, to his great damage and loss.
In the course of this process the Earl adduced one Foreman, a cooper at Methill, (who served him for a weekly wage in making and keeping in repair the buckets used in drawing water from the coalworks) to prove the want of water in the summer season.
It was objected against this witness, That he was wholly dependent on the pursuer, as receiving a weekly wage from him, and that he was also personally interested in the event of the cause, in so far as it affected the engines for drawing water from the coal-works, upon which his employment and bread depended.
Answered for the pursuer, That the case of this witness could be no worse than that of a domestic servant or tradesman's apprentice, and yet these have been found habile witnesses, 11th July 1705, Lord Inverury against Gordon, No. 127. p. 16710. and 31st December 1708, Smith (Factor to the Earl of Winton) against Matthie, No. 133. p. 16714.
The pursuer further observed the variation of the law of Scotland as to the general rules about witnesses, the strictness of which has been found inconvenient, and has occasioned their being laid aside; as in the case of women witnesses, against whom the antient rule was generally and strictly observed, but now was out of use.
Replied for Durie, That domestic servants and apprentices, or journeymen, might be admitted for their masters, in cases where there was a penury of other witnesses, as in the case of the decisions cited; but in the present case there could be no pretence of that sort as to a quantity of water running in an open stream; and besides, the Earl had called no fewer than one and twenty witnesses.
In the same cause an objection was moved against admitting three brothers of the name of Landalls, in respect that one of them had an interest in the cause, and had raised a declarator against Durie in relation to his diverting the same water of Kennoway.
It was answered, That the process, at Landall's instance, was now over, he having agreed with Durie and dropped it.
Replied, That though he had dropped his own process, yet if the Earl should prevail in this, it would have the same effect that Landalls aimed at by his process of stopping Durie from diverting the water of Kennoway.
The Lords sustained the objections, and rejected the witnesses.
Act. Ja. Graham, sen.Alt. Alex. Boswel.Reporter, Lord Forglen.Clerk, Hall.
Edgar, p. 85.
