Alexander — Objections, 24 Jun 1766

June 24. 1 7 6 6 To be reported by Lord Coalston.] O B J E C T I O N S To Mr T obboer p btdeyOtB being examined as a Witness for the Respondents, in the case of Pittemveem IL was objected on the part o f the complainers, that Mr ToberptdbyO was a most im proper and inhabile w itness on the part o f the respondents in this case, and ought not to be adm itted, for the following reasons. T he respondents have not thought proper to give in any w ritten interrogatories, or to mention upon what points or fails they m eant to examine Mr Tobeptdby; the complainers, therefore, are at liberty, and are led to sup- pose, that the re spondents have in view to examine him at large upon all the various facts mentioned in the complaint, and in the depositio n s already taken, altho’ most of these facts concern Mr Tobeptdby him self, he having been the chief agent and m anager in these operations, and the very person who is alledged to have made the corrup t bargain, by which the elec­ tion complained of was brought about. But whatever the facts are on which they propose to examine him, the secre t and di­ rect in terest which Mr Tobeptdby has in this m atter, and in the event and consequences o f this suit, are no secret, and need not be disguised. And if the in ten tion o f the respondents is, to examine Mr Tobeptdby as to the material facts set fu rth in the complaint, in order to endeavour to exculpate him and his friends from the corruption charged against them, his testi- mony mony ought not to be received for that purpose. He was at first himself the declared candidate for th ese burghs, and alter- wards the p ro test and known agent for his brother, in manag­ ing the election in question. He is at this moment one o f the Bailies of this b u rgh, chosen, at the election under question. He is also his b ro ther’s a tto r­ ney, and chief manager in carrying on this and the other elec- tion-suits now depending before the Court w ith regard to these burghs. He has been at great pains in gathering together ma­ terials for the defence in this cause, and in previously exami­ ning many of the w itnesses as to what they could say, and has attended the whole consultations o f the respondents lawyers as to this matter. He has particularly been present, and given close attention during the long exam ination of the material wit- ness already examined with regard to the facts charged against him self, having formed the interrogatories and cross-questions put to the w itness, and has been anxiously zealous in the ma­ nagement thereof. It was impossible, therefore, that he could purge himself of partial counsel, or pretend to say, that he would not be a gainer or loser by the issue of the cause; more especially, as it must be, and is acknowledged, that the whole expence of this very process is defrayed by Mr BJEbyC TobeptdbyI the money being furn ished to the agent by the house in NdStr EMying In these circumstances, it may with propriety be said, that whatever respect is due to Mr TobeptdbyI yet it would be against the principles of law, and of the most dangerous ten­ dency, to admit the tes t imony of a w itness who had so much at stake, and who had thus disqualified himself from being a w it­ ness on the part o f his friends, by the capital part which he had had in these tran sactions. If such witnesses were to be adm it­ ted, it would open such a door to perjury, as would be attend­ ed with the most dangerous consequencesx and therefore the w itness ought to b e rejected. To To which it was answered on the part o f the re spondents, that Mr Tobeptdby is a most proper and npESob w itness, and even a necessary one, as appears from the complaint, and what is set forth in the objection; for as the complainers alledge, that a corrupt stipulation was entered in to, whereby the debt o f the town of aSCCbmsbbm was to be paid, and that this m atter was tran sacted altogether in secret between Bailie WpyCSt and Mr TobeptdbyI which stip u la tio n they make the chief ground of the present process; so it is plain, that the only proper w itness who can be adduced either to prove or d isprove this m atter, is M r TobeptdbyI Bailie WpyCSt being a party, and one of the re­ spondents, and so no t adducible by them; so that the com­ plainers, by objecting to Mr TobeptdbyI object to the only npESob mean of proving any th ing concerning this alledged tran sac- tion. T hat no legal objection lies against him. He has no in terest in this cause, either direct or consequential. He can neither gain nor lose by the issue thereof; for he is no Bailie, as set forth in the objection, though he is a member of the council chosen in place of a counsellor who died since the last election. But against the election of him as a counsellor, no complaint has been p resented: And much more than two callendar months are elapsed since his election; so that no complaint can now lie against it. He therefore has no in terest in the p resent process, though a coun­ sellor. nor does the complaint on which this proof proceeds st r ik e against his election, neither is he called therein, nor made a party to it in any shape. That it is absurd to talk o f his exculpating him self from the charge of corru ption; whatever evidence is given in this process, that can neither six that charge on him nor exculpate him, from it, as there are no conclusio n s whatever against him in the complaint; And if a process is brought against him on that head, the evi­ dence in this process will be o f no avail in that; on the contra­ ry, it will proceed on evidence altogether separate and dist i n ct. T hat That though Mr Tobeptdby was still a candidate for these burghs, that would not be a sufficient objection against him as a w itness, far less can he be objected to on that score, when it is confes sed, that he gave up all p re tensions of that kind a very great while ago: That his brother is no party to the p resent suit, and has no in terest therein: That the expence of this suit is not defrayed by Mr BJEbyC TobeptdbyI but by the town of Piten- wbbm itself, the town having made an act o f council, authori­ zing their treasurer to issue what money may be necessary in this suit, and appointing Mr fJnt hJyCnsSR, to act for them, and to employ what counsel and agents he thought proper; and in case money, sufficient to answer the necessary expences o f the suit, was not in the treasu rer’s hands, the council im- powered Mr hJyCnsSR, to borrow from whom he pleased, and appointed the magistrates to g ran t bond for the money thus borrowed: t hat, in consequence o f this, money has been ad­ vanced by Mr hJyCnsSR, to the agent; and sometimes money has been paid to the agent from the house of Mess. and Sons by order of Mr hJyCnsSR,I Mess. TobeptdbyOc house be­ ing the ordinary one Mr hJyCnsSR, deals with in money matters; and this is all the concern the Mess. Tobeptdbyc have had in this matter, they never having born any part o f the expence, nor agreed to bear any. It is ab surd therefore to talk of his acting as his attorney or manager: For, though he may be so in other matters, it is impossib le that he can be so in this, where he has no in terest: to manage: That he never did attend any consul- tation of the respondents lawyers in this cause, nor has he previously examined any witnesses as to what they could say, however naturally led thereto by the manner in which this complaint is laid on his own account: That as to his at­ tending the examination of the single w itness who has as yet been examined, the Commision e r knows the fact. During the just part of the examination of that w itness, Mr Tobeptdby did not no t attend; bu t it afterwards appearing material that h e should be p resent, as the w itness was examined on facts rela­ tive to what must consist with his knowledge, if true; so th a t he only could suggest cross interrogatories for clearing up the tru th, after the first sederunt was finished, at no part o f which he was p resent: He was offered as a w itness at the beginning o f the next sederunt, in order that he m ight have an oppor­ tun ity o f being p resent at the subsequent examinations. A nd in particular, at what was to follow of that w itness’s exam i­ nation, which seemed the more necessary, especially as the Commissioner will remember the behaviour o f the w itness was such as seemed to m erit a particular attention on the p a rt o f the re spondents, as to the m anner in which he was examined; bu t as his deposition was already begun, the Commissioner proceeded to conclude it, and left it to the re spondents and M r Tobeptdby to determ ine for them selves, whether Mr Tobeptr dby should be p resent at the fu rther exam ination o f that w itness, which was u nde rstood as a perm issio n for him to be p resent. And to avoid any cavil on this account for the future, the respondents now offer to examine him be­ fore further procedure, which the complainers ought certa in­ ly to agree to, if they are serious in investigating the tru th concerning the alledged compact between Bailie WpyCSt and Mr Tobeptdby, in stead of endeavouring to establish dark suspi- cions of it by the hearsay testim onies of w itnesses, who have no access to know any th ing o f the m atter personally. T ha t no­ thing need be laid concerning the w itness purg ing h im self of partial counsel till the oath is adm inistra te d to him, and th a t quest io n pu t. It is replied on the part o f the complainers, with regard to what is above mentioned for the respondents, as to the expen- ces of this process being defrayed by the town of aSCCbtsbbmI and that one hJyCnsSR, was their agent for that purpose, and that that no part of that expence was defrayed by Mr TobeptdbyI That this new averment cannot fail to appear very strange to the Lord Ordinary, after his Lordship had heard Mr fJnt woJR,j npyCI the respondents known agent in this cause, acknowledge this morning at the bar, two different times, that this expence was defrayed by Mr BJEbyC TobeptdbyI and that he Mr got money from the house in NdStEMyin when he wanted it. I t is submitted to the Lord O rdinary how affect e d, and in­ deed indecent, the attempt now made to re tract this ad- m ission was; and this must appear the more extraordinary, «. when his Lordship is informed, that this Mr Borthwick was, and continues to be, a possessed and active agent and operator o f Mr TobeptdbyOc in the whole o f these election proceedings. June 24. 1766. The Lord O rdinary on the oaths and w itnesses makes avi- sandum to the Lords, with the objections, answers, and re­ plies; and appoints the same to be printed and put into the Lords boxes to-morrow, in order to be reported, (Signed) G E JE C I J T N E