George Muschet Merchant in Stirling, v. William Christie Merchant there
Date: 5 July 1759 Case No. No. 195.
Objection sustained, that the witness proposed, had an interest in the cause at issue.
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Muschet being copartner with Corsar in a skinner-trade, Corsar, in conjunction with one Barclay, embezzled, and fraudulently disposed of the skins to Christie.
Muschet complained of this fraud by petition to the Magistrates, and craved, That Corsar and Barclay should be incarcerated; and that the skins embezzled should be sequestrated. He thereafter brought an action against Christie for repetition of the skins.
These processes were conjoined; and Christie offered to prove by Corsar and Barclay's oaths, that he fairly bought the skins, and paid for them.
Objected: That they are not habile witnesses; they are defenders in the conjoined processes; they may lose or gain by the determination in the cause; for their evidence may tend to make them liable in high penalties for the fraud committed.
Answered: Though they are defenders in the conjoined processes; yet their evidence in the one case will not be evidence in the other.
They can neither gain nor lose by their evidence in this case; because they are liable either to Christie or to Muschet for the price of the skins; and it is a matter of no consequence to whom they are found liable.
Though they may gain or lose by the cause; yet such witnesses are received in many cases. The owner of goods stolen is a good evidence when the prosecution is at the instance of the Crown, for theft; and yet his oath, so taken, may have some weight in the after question, Whether the goods shall be restored to him? In the same manner, the evidence of an inn-keeper is admitted in the pro-secudon of the person who robbed his house, though it may have the effect to free him from the action on the edict Nautæ, Caupones.
The inferior Court refused to admit of their evidence.
“On an advocation, the Lords remitted the cause simpliciter.”
For George Muschet, Walter Stewart.Alt. Macqueen.Clerk, Justice.
Fac. Coll. No. 190. p. 340.
