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During the dependence of mutual processes of declarator betwixt these parties, the one for ascertaining the marches of the Lowmonds at the instance of the Town, the other of property and molestation at Conland's instance; Conland applied by petition to the Lords, setting forth, That he was apprehensive the Town would adduce as witnesses the inhabitants of Falkland, heritors, tenants, possessors, or their servants, of the lands, to which a pasturage was claimed upon the Lowmonds, and craving, That none of them might be received as witnesses, because the more extensive the bounds of the Lowmonds were made by their oaths, the more enlarged their pasturage would become; so that each of these persons would be deponing in their own cause, against which there was an established objection.
It was answered for the Town, That it was not every distant remote view or concern, that a person may have in a cause, that will be sufficient to set him aside as a witness, but only such direct interest as might give occasion, to suspect him. That Municeps in causa municipii, et cives in causa civitatis, testes esse possunt; which opinion was founded upon the L. 7. § 1. D. Quod cujusque universitatis nomine, &c. And agreeably to this the Lords had determined, 13th June 1672, The Town of Inverness against Forbes of Culloden, No. 74. p. 16675. and lately in a case betwixt the Town of Perth and Sir Thomas Moncrief, No. 154. p. 16737.
The Lords found, That none could be witnesses who had themselves the privilege of pasturage.
Lan. Craigie, for the Town.Alt. And. Macdowal.
Edgar, p. 38.
