Scottish Court of Session Decisions

Lord Balgray.—I am of the same opinion. The proof on both sides was led at length, and closed by mutual minutes, followed by interlocutor of circumduction. After all this, are we now to open up this circumduction ? If proof is to be admitted on one side, it must be admitted on the other, and where are we to stop? And then, it will be observed, that no reprobators were protested for. This is most material, especially in a Consistorial case, where a list of witnesses is given to the opposite party, in order that he may make all enquiries, and be prepared either with instant proof of any objection, or at least to protest for reprobators, if necessary. If he does not so protest, I conceive he acquiesces, and passes from reprobatory proof. Were it otherwise, the party adducing the witness would be exposed to great hardship. If reprobators were protested for, he might withdraw his witness altogether, and betake himself to other proof; or he might adduce evidence specially to support the testimony of the impeached witness. But when reprobators are not protested for, he is thrown off his guard. After the proof was closed without such protest, and after circumduction followed, it would require unusually strong grounds to be stated to induce me to open up the circumduction. There is nothing of that sort here; and, indeed, it does not appear to me to be very relevant or material, in any view, what is now offered to be proved.

Lord Mackenzie.—I concur in refusing to allow the proposed investigation. If this new matter had been properly reprobative, I am not prepared to say that the necessity of a protest for reprobators is yet done away with. But I do not think there is proper reprobative matter here. As to the admission of a witness cum nota, I agree with Lord Gillies, that any circumstance which adds to or takes from the weight of the testimony of a witness may be said to affect the nota wherewith such witness is to be received; as, for instance, the age, status, occupation, or intelligence of a witness, or his vicinity to the spot where a thing happened to which he speaks, &c.

In this case I do not think there is proper reprobative matter alleged by the pursuers. There is no possibility of convicting the witness of perjury, merely because she swore she was the wife of Captain Barry, while a decree of the Commissaries assoilzieing him from her declarator of marriage was standing unreduced. The Commissaries could only judge according to the evidence which was laid before them, as all courts must do. But there are many facts which, from accident or otherwise, do not admit of being established by proof. A court may, and often does, assoilzie a defender merely because it has no means of getting at the truth. And, therefore, so far from looking on it as proof of perjury, that she swore she was the wife of a man who had been assoilzied from her declarator, it is quite a possible case, that there might be facts known to her, such that she would have committed perjury if she had sworn any otherwise than as she did. But since that is possible, I do not see how it can be alleged that she is to be held perjured from what she did swear. It is said she afterwards asked aliment as for a natural child. If she was to sue for aliment at all, it could only he on that footing, seeing that she had no evidence to prove a marriage, and must be dealt with by the court as an unmarried person.

I therefore think there is nothing in the allegations made to induce the Court to allow the proof which is asked. And, after circumduction had taken place, it would have required very strong grounds to induce me to consent to new proof. Undoubtedly there are cases in which this maybe done; but there is nothing here of sufficient importance to warrant it. Perhaps had the offer of proof been made on the day after the witness was examined, it might have been taken by the Commissary; though even that is not free from doubt, especially as the averment regarding the witness's own status was coupled with an allegation as to her having two bastards. I should doubt if a proof as to this would have been admissible, even before circumduction. But, after circumduction, I conceive it clearly ought not to be admitted, in respect of the grounds I have already stated.

I think that, to a certain extent, at least, we adopt the rule which has been enforced by the English authorities referred to, that, when a matter is collateral and irrelevant, proof should not be allowed to be led to contradict a witness on such subjects. If the witness, for instance, had sworn there was no steeple at Montrose, I think a contradictory proof upon this point, which was gratuitous and irrelevant, would not have been allowed. And, in so far, at least, I conceive our practice corresponds upon very reasonable grounds, with that of England.

I am clearly of opinion, that the proof of the facts, which are said to be res noviter, ought not to be allowed.