Not relevant to prove a fact by oath of party, where penalties are concluded for.
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Mr Stirling of Keir brought an action before the Justices of Peace, against John Christie, one of his tenants, for cutting some young trees on his farm, founded on the statutes of the years 1685, cap. 9. and 1698, cap. 16. and the statute of the 1st Geo. I. session 2. cap. 18. He proved that six trees, above ten years old, were cut by Christie, or those in his family, and ten by persons unknown. The Justices decerned for L. 20 Scots for each of the sixteen trees, the penalty contained in the two first of those statutes.
Christie suspended; And, inter alia, pleaded, That he ought not to be liable in any penalty for the last ten trees, in respect it was not proved they were cut by him, or his order, or by persons in his family. Mr Stirling offered to refer to his oath, that they were cut by his order. Christie objected, That facts affecting a person's fame, and inferring a crime and penalties against him, cannot be referred to oath of party; for which the authorities of Stair, B. 4. T. 44; Bankton, B. 4. T. 32; and Erskine, B. 4. T. 2. § 9, were quoted.
“The Lord Ordinary found the allegation not relevant to be proved by the suspender's oath, in respect the charger is insisting for penalties.”
“The Lordds adhered.”
For Charger, Walter Stewart.For Suspender, J, Dalrymple, Burnett.
N. B. In this case it was debated, but not decided, Whether the tenant is liable for wood cut on his farm, unless he shall prove that the wood was cut by a third party?
