Martin — Petition, 3 Jul 1766

July 3 1766 Unto the Right Honourable the Lords of Council and Session. T H E P E T I T I O N O F Thomas Martin, and others, Magistrates and Coun- sellors of P i t t e n w e e m; Humbly Sheweth m* 9 H A T in November last, Peter Ramsay, and others, preferred a complaint to your Lord-T ships, praying your Lordships to reduce the election of magistrates and counsellors of Pit— tenweem, at Michaelmas last, on pretence of its having been brought about by corrupt influence. That the respondents having put in answers to the com­ plaint, your Lordships, on the 21st December 1765, allow­ ed to both parties a conjunct probation of the several facts set forth by them, in the complaint and answers, and of all other facts and circumstances relative thereto; and granted commission and diligence hinc inde for proving: And, on the 14th of June last, the said commission and diligence was renewed to the 5th instant. That, on the 20th of June last, the complainers began their proof, by adducing James Laing innkeeper and coun- sellor in Pittenweem, who originally had been on Mr A- lexander’s lexander’s interest in the late elections, but was brought over to Sir John Anstruther’s, by ways and means which it is unnecessary at present to specify; for which, and o- ther reasons, the respondents imagining, that Mr Laing would go very unjustifiable lengths in his deposition, they protested for reprobator against it. That, in the course of Mr Laing’s examination, upon an interrogatory for the complainers, he deponed, “ That he (the deponent) never failed Mr Alexander, till the election of the delegate, in which he did not vote, because the depo­ nent would not take the oath against bribery; and that his reas on for not taking the oath, was on account of the bargain made by Bailie Martin." The petitioners did not object to this answer being ta­ ken down, though relative to what happened long after the election of magistrates and counsellors under challenge; and that for two reasons first Because, it is their wish and intention, that the truth, and the whole truth in. this matter, should come out on evidence; whereas the drift of the complainers, is to endeavour to conduct their proof so as to give an unfair and imperfect view of the con­ duct of the respondents; with which design, of all the counsellors of Pittenweem, they have cited this convert, Mr Laing, alone, and opposed mordicus almost every cross-question, material for the defence of the respondents, that was put, as will appear from the proof, when it shall be printed. 2dly, The respondents did not oppose this answer being taken down, because the interlocutor allowed both parties a proof of all facts and circumstances relative to the mat­ ters set forth in the complaint and answers; and they thought, and still do think, that circumstances which hap­ pened at the election of the delegate, may be connected with, and ju st ly said to be relative to the Michaelmas e- l e c t i o n.; Upon Upon Laing giving the answer above recited, it occur­ red to the counsel for the respondents, that it was proper and competent for his clients to prove, by cross-question- in g Laing, that it was als olutely false that he had failed Mr Alexander at the election of the delegate, on account of his being impressed with a notion that he was and it was thought this would sufficiently appear, on ex­ amining Mr Laing a little more particularly, as to his conduct on the day of the election of the delegate. James Laing, as already said, was seduced from Mr A- lexander’s interest; and he was prevailed upon, at the e- lection of the delegate, to refuse to take the oath of bribery, and to give in a declaration, mentioned in the minutes an­ nexed to Christ ie ’s answers to Mr Robert Alexander’s com­ plaint, s etting forth his impression of bribery, and that that was his reason for not voting. This declaration is evidently dictated by a man of bu- siness, not by Mr Laing himself, and, as the-respondents imagined, by a gentleman employed by Sir John Anstru- ther; and therefore the respondents expected, that on Laing, being questioned as to this declaration, and the conversations he had before he signed it with the writer, it would appear, that an impression of bribery was, not Mr Laing's reason for not voting at the election of delegate, and also that Laing was a false witness. With this view, he was interrogated, on the part of the respondents, W he- ther or not he gave in a declaration at the election Ju l the delegate? to which he answered, he did: And being asked by whom it was written, depones, T h a t it w a s wrote by William Chalmers writer in Edinburgh, and dictated by the deponent, who signed it; but that nobody advis ed him to i t; for he-was sure there-would be evi­ dence against him i f he took the oath, as others did. And being interrogated, if whether or not he knew this Mr Chal.... mers was an agent for Sir John A nstruther in the boroughs. and what convers ation he had with him before he-wrote this paper paper? Objected, upon the part of the complainers, That some of the questions which have been put to this wit- ness by the respondents, are totally incompetent and im­ proper in two respects: In the first place, Because they relate to transactions subsequent to the Michaelmas elec­ tion; and, Secondly, Because they resolve into an exa­ mination of the witness upon new facts; whereas the respondents, who neither have cited nor can cite this witness, are only intitled to cross-interrogate him: That the complainers did not at first chuse to give much op- position to the respondents, when they pointed at an examination upon these extraneous facts; but as it ap­ pears from the question last put, that they are proceed- ing to investigations without end, and altogether foreign to the matters which are properly in issue, they think it incumbent upon them to enter this objection, and to in- sist for a judgment of the Commissioner, how far the question is competent. To which it was answered for the respondents, That this question was a proper cross-question, be- cause the complainers had put several interroga­ tories to this witness about his conduct, at the elec­ tion of a delegate for Pittenweem, as his reason for not then voting in Mr Alexander’s interest, in order to shew, that his not voting, was owing to his believing that he could not take the oath of bribery, because of the pretended previous transaction: That though it were incompetent to examine witnesses about what pass- ed at the election of the delegate, yet since the com- plainers have been allowed to question this witness as to that particular, it is surely but fair that the respondent should be allowed to cross-question him upon the same, and to show that it was not owing to any impression of bribery, that he did not vote at the election of the dele­ gate; and as the witness is said to have given in this declaration without advising with any person, it is plain that that the questions proposed are most proper and perti­ nent, as they tend to explain that vague and ambi­ guous expression.” That the Commissioner having reported this debate to the Lord Colston, then Ordinary on the oaths and wit- nesses, his Lordship called the cause, and signified, that he thought that what was taken down on the question for the complainers, about what passed at the election of the delegate, was improper and foreign to the question; and therefore, that if the complainers would consent, he would order that to be scored; but to this the respondents objected, that they would not consent to the scoring, and thought it for their interest, that what was taken down should remain, and a determination be given, whether the cross-questions were competent or not. That the complainers having taken sometime to think and advise, did consent that what Laing had said upon this matter, on their interrogatory, should be scored; up­ on which the Lord Ordinary was pleased to pronounce the following interlocutor: “ In respect the counsel for the complainers have agreed, that what was deponed to by Laing, with regard to what passed at the election of the delegate, and which is on page 13th of the de- position. from letter A on the 11th line to letter A on the 17th line, should be delete; therefore, and in respect that the council for the respondents have declared, that their only purpose for puting the question objected to on the 19th page, is to explain what the witness had formerly said, with regard to what passed at the election of the delegate, and that it is not competent for the respondents to examine th e witness, otherwise than by cross-interrogatories, therefore sustains the objection; and finds that the wit­ ness is not to answer the same.’' And thereafter, upon a representation, his Lordship gave the following deliverance: " The Lord Ordinary, having considered considered this representation, in respect of the reasons mentioned in the former interlocutor; and that what passed, with regard to the election of the delegate, nei­ ther was, nor could be any part of what was allowed to be proved by this act, refuses the desire of the represen­ tation, and adheres to the former interlocutor.” That, in the afternoon of the day on which this inter­ locutor was pronounced, the complainers applied to the commissioner, and insi sted to have Mr Laing’s examination finished; upon which the respondents set forth, that they were to reclaim to your Lordships: And therefore craved, That Laing’s further examination should be delayed till the opinion of the Court could be had, which they would en­ deavour to get as loon as possible, by having a reclaiming bill into the boxes next day. But the commissioner determined as follows: “ In respect the counsel for the complainers insi st on the witness’s being- examined, the commissioner thinks it his duty to proceed in the examination; and will follow the Lord Ordinary’s directions as to deleting that part of the oath thereby di- rected, but in such manner as it shall be legible, in case the Court sh all alter the Lord Ordinary’s judgment.” Upon which the several passages in Laing’s oath, above inserted in Italics, were accordingly scored; and he was further examined, his oath closed, and he dismissed. As the petitioners conceive themselves to be aggrieved, by the judgments of the Lord Ordinary above recited, they must take the liberty of submitting them to review; and as the doctrine established by them is of general con- sequence, and not confirmed by any precedent, so far as the petitioners can learn, they are persuaded your Lordships will think it well merits reconsideration. Whether or not the cross-question proposed on the part of the respondents, be proper, is yet entire, the Lord Ordinary Ordinary having given no judgment upon it. The re­ spondents humbly apprehend they are competent and pro­ per, for the reasons already asign ed. However, the only que­ stion at present is, Whether or not it is competent to score a witness’s answer, taken down in writing, on the interroga­ tory of one of the parties, with the consent of both parties, upon an after-consent to score it, given by the party on whose interrogatory it was taken down, though the o- ther party would not consent to that step, but opposed it to the utmost? Whether or not Laing’s answers, that have been taken down and scored, are material for the defence of the respon- dents, they themselves are intitled to judge. By their being taken down, they had a jus quaesitum to avail themselves of them, either as affording an argument in the cause, or as evidence of the falsity of a witness; and this right, they are advised, could not be taken from them, without their consent. And the impropriety, and dangerous conse- quences of scoring any part of a deposition, especially in a case of this sort, will, it is thought, readily occur to your Lordships. When the respondents insi sted, that the commisio n er should delay scoring any part of Laing’s deposition, till the opinion of the wh ole Lords was taken, they observed, that i f it should be closed that day, and he dismissed, as he was a witness whom the complainers alledged the re­ spondents could not cite, there might be some difficulty in getting him to appear again; but in answer to this, they were told, that if the Lord Ordinary’s interlocutors were altered, the Court would oblige Laing to return, and un­ dergo another examination, which the respondents hope will therefore be done. May it therefore please your Lordships, to alter the Lord Ordinary's interlocus and to find, that no part of Laing's deposition taken down, without any objection from either party, ought to have been scored, as the petitioners objected thereto; and that as s uch parts of it as have been s cored are still legible, they must be con- sidered as part of the proof and reported and printed as such: Also to find, that the cross-question put by the respondents is proper and competent; or remit to the Lord Ordinary to find s o, or at least to give judg- ment on that point: And in case your Lordships shall alter the Lord Ordinary's interlocutors, and be of o- pinion that the cross-question ought to be put, to ordain Laing to sist himself again before the commissioner, on a s h o r t d a y. ' f According to justice, &c. JO. M A C L A U R IN. Edinburgh, July 3. 17 6 6. Betwixt the hours of ten and twelve forenoon, I John Flockhart writer in Edinburgh doer for the petitioner, did intimate to James Hardie’ writer in Edinburgh, doer for the complainers, That co­ pies of this petition were to be put in to the Lord’s box- es this day, in order to be moved to-morrow. This l did, by delivering a printed copy of this petition, w it h a n o t e o f intimation subjoined thereto, to the said James Hardie personally, before these witnesses John Stewart and Peter Flockhart, both writers in E- dinburgh. ' Jo. y 3 J 1 7 6 T H E