Scottish Court of Session Decisions

Subject_1 WITNESS.

Phillips
v.
Crichton

1738, June 13.
Case No. No. 9.

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Phillips having caused the witnesses attest the subscription, which, though a true subscription, yet they had not seen the party subscribe, nor heard him own his subscription, the Lords committed Phillips to prison for a month; but because of his youth and acknowledgment, would inflict no further punishment. As to the witnesses, several of the Lords thought they ought not to punish them, because the only proof was by their oaths; and they thought, that in law, a party could not be punished upon his own evidence. Others, inter quos ego, thought, that the crime of forgery was by our law an exception from that rule, as appears from Mackenzie's Criminals, the case of Captain Barclay, where the witnesses were punished allenarly upon their own evidence, and several others, and especially by the act 1681, which supposes that the evidence must be by the witnesses own testimonies, because regularly the indirect manner of improbation is not competent while the direct per testes insertos is extant, and till the deed be improven, there can be no punishment of the witnesses. However, the Lords thought it better to give no judgment upon that matter, and therefore passed them over without notice.