John Stewart of Ascog, v. Cornelius and James Robertsons
Date: 20 June 1724 Case No. No. 157.
Found that a messenger might be a witness relative to deforcement.
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In a process at Ascog's instance against the defenders, as being guilty of beating James Johnston a messenger employed by Ascog to execute a summons of deforcement in the Isle of Bute, a proof was allowed; and Johnston being adduced as a witness by Ascog, the following objections were made against his being admitted: 1mo, That he was the person injured, and therefore was presumed to retain re sentment: And in support of this Sir George Mackenzie's authority was cited, Tit. Deforcement, Numb. 5. where he says, That a messenger is not admitted in a deforcement to prove an injury done to himself; 2do, It was objected, That the messenger had given partial counsel, he having wrote a letter to Ascog's doer, informing him of the affair, and advising that a complaint should be made in order to procure him assythment and damages; 3tio, That he might be a gainer in the cause, as the person entitled to the damages.
It was answered, 1mo, That this was not an action of deforcement pursued either by the King's advocate or the party injured, but a summary complaint at Ascog's instance upon reiterated acts of oppression and violence: And Sir George Mackenzie in the place cited adds, that this is an arbitrary question; and in this case the messenger was a necessary witness; 2do, The letter mentioned could not infer partial counsel, it containing only an account of what passed, but did not tend to instigate Ascog to make his complaint; nor was the messenger present at any consultation with Ascog upon this head, nor ever offered to depone in his favours, from which circumstances only partial counsel could be inferred; 3tio, The messenger could not be gainer, since the complaint was at Ascog's instance, and concluded damages and expense to him only.
The Lords repelled the objections, and allowed the witness to be received.
Act. Jo. Macleod.Alt. Arch. Stewart.Reporter, Lord Polton.
Edgar, p. 52.
