Ramsay — Answers, 28 Jul 1766

July 23. 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 Counsel- lors of P ittenweem, H umbly Sh ew e th, T H AT your Lordships, on advisin g a petition for Peter Ram-say and others, and answers for the now petitioners, did, o f this date, pronounce the following interlocutor: The Lords, having heard this petition, with the answers there- to, they find that no witnesses can be examined, other than those cited before the expiry of the former ad and commision, excepting Mrs Jean Anstruther, Bailie Thomas Martin, and Mr William Alexander; and ordain the depositions of Margaret Ounston and Christian Thomson to be expunged; and, lastly, ordain the deposition of Mr John Chieslie to be likewise ex- punged from the proof.’’ As this judgment, in two particulars, is of importance in point of precedent, as well as to the issue of the question between the complainers and the respondents, they will be forgiven for bring- ing them under review. The f i r st point which the petitioners submit to your Lordships re- consideration, is the order for expunging the depositions of Margaret Ounston and Christian Thomson, who were adduced by the respon- dents, to discredit the evidence of Anne Thomson, daughter to James Thomson, a fisherman in Pittenweem; and that the question may be the better understood, it will be proper transcribe all that the said said Anne Thomson has said in the initials of her oath. Being interogate, “ Whether she ever said, that she would do the Mar- tins, the respondents, an ill turn, and that they deserved it at her hand, or words to that meaning depones, That she never did say so; and that she neither has nor bears any ill-will to the Martins, or to any of the respondents in this cause. And being in terrogate by the respondet, Whether she had received any mo- ney, or other good deed, or the promiles of any, from any of of the complainers, or any person on their behalf, and parti- cularly from Mr Nairn, either before or since her being cited as a witness in this cause, or in consideration of her giving evi- dence in this cause? depones, That she has not. And being inter- rogated, Where she has lodged since she came to town? depones, That it was in Sir John Anstruther’s lodging, and that it is eight days since she cas e to town: That she eat at Sir John’s lodging sometimes with Lady Anstruther, and sometimes with the servants. Being interrogated, Whether she had any conversation with Lady Anstruther, about the subject of the deponent’s examination in this cause, or what she was to be examined upon? depones, She had not; and that my Lady never mentioned this subject to the deponent. And being further interrogated, Whether she had any con- versation with Mr Nairn, or any of the complainers, or any person on their behalf, as to what she should give in evidence? or whether she was taught or instructed by any person what to say, when she came to be adduced as a witness? depones, nega- t iv e, further than that John Ramsay, son to Robert Ramsay, one of the respondents, having met the deponent in this town, desired her to declare the truth, and nothing but the truth. To which the respondent said, she would do fo, if it was on her fa- ther. And being interrogated, I f she told John Ramsay what she could say in this matter? depones, She did not, neither did he ask her.” The petitioners, who, from the situation, character, and other circumstances of this witness, had strong reason to suspect that she would go beyond the truth, were not satisfied with her being purged in the common general way, but judged it was material to put some special interrogatories to her, and to ask her particu- larly, Whether or not she had ever said she would do the Martins, the respondents, an ill turn, and that they deserved it at her hands, or words to that purpose? When this witness was asked, Whether *Whether she had been instructed what to say, or had any malice at the respondents? she readily and forwardly deponed, That she had not been instructed, and had no malice at any person. The reason why the petitioners asked her, Whether she had uttered any expressions, importing malice at some of them, was, that they saw, this witness knew malice would be an objection to her evidence, and that she was very desirous to give it; and therefore, it seemed highly probable, that, when the question was put, she should deny the fact; in which case the respondents were sure of discrediting her evidence, being certainly informed she had used such expressions, in the presence of two unexceptionable wit- nesses. Accordingly, when this question was put to Anne Thomson, she apprehended, that the meaning of it was to make her contra- dict herself as to malice, fix that upon her, and so cast her evi- dence; and therefore, she positively swore, She had never used expressions to that purpose. The petitioners knowing this to be grossly false, and having no doubt that a falsehood, positively swore to by a witness, would discredit the whole testimony, they adduced Margaret Ounston and Christian Thomson. Margaret Ounston was first called, and, before her examination, the counsel and agents who attended on the part of the complainers, were asked, if they had any objections to her? to which they answered in the negative; and then the respondents proceeded to put their questions, and the Commissioner to take down the wit- ness’s answers, without any objection whatever from the com- plainers their counsel or agents, as appears from the oath in process. The respondents next called Christian Thomson; and when she came, questions were put to her. The complainers perceiving that, i f she concurred with the former witness, there would be a com- plete proof of Anne Thomson's perjury, they objected, that it was not competent; however the Commissioner took her evidence: and this is the first step complained of in the above-mentioned petition for the complainers. The arguments urged by the complainers for expunging the depositions of the two women ju st now mentioned, were, f i rst, That it was not competent to discredit a witness’s testimony inci- dentally, but only by a formal action of reprobator, with con- course of the King's Advocate, to which the witness was made a a party. 2dly, That what was proved against Anne Thom- son was not relevant to set aside her evidence, as malice is an affection or habit of the mind, which could be known to no person but the witness herse lf; and therefore as she de- clared upon oath, that she harboured no malice against any per- son, that was incontrovertible evidence of the fac t which could not be redargued by vague, foolish expressions, which she may have uttered in conversation. As to the f irs t, which is merely a point of form, it was and still is answered, That though, no doubt, it is competent for the petitioners to insist against Anne Thomson in a pro- per action of reprobator, with concourse of the King’s Advo- vocate, to have her deposition cancelled, and herself decla- red infamous; yet there can be as little doubt, it is compe- tent for them incidentally to adduce witnesses to discredit her evidence, only ad hunceftm,hat it shall bear no weight in this cause; for which reason, there is no occasion for making her a party, as there is nothing concluded against her: And ac- cordingly so the practice has been for these many years past, to which it is owing that actions of reprobator have been almost to- tally neglected. The petitioners are almost certain, that there has been no action of reprobator brought before the Court, for these ten years past; and, they have reason to believe, for a much longer period. And the petitioners cannot help thinking, that the practice is extremely regular and expedient as it stands at present: Cui damus ac t ionem, ei multo majus damus exceptionem, is a rule in law found- ed on reason. If parties were always obliged to insist in formal reprobators, it is obvious, that they would occasion much trouble to the Court, and involve themselves in a load of expence, and a labyrinth of litigation; and this cause will give rise to a ve- ry linking example, if it shall be established, that it is not com- petent to discredit the evidence of a witness otherwise than by a formal reprobator. But the petitioners are hopeful that, upon re- consideration, your Lordships will not vary the practice, which is certainly for the petitioners; and it is thought has been so, ever since proofs before ans w er were introduced, and parties allowed to prove all facts and circumstances they might judge material in the cause, which is the common style of interlocutors allowing such proofs. Nor is there any danger that perjury should escape unpunished, unpunished, in case actions of reprobator should fall into disuse, for your Lordships can, and, whenever occasion offers, your Lord- ships do punish perjury, ex officio, by imprisonment, or the pil- lory; and several examples in this way have been made, of very late years, without any action of reprobator; which, by the bye, is real evidence, that it is competent to discredit the testimony of a witness incidentally: For as no action of reprobator was brought against any of the persons whom the Court has punished of late years, it is plain that they could not have been convicted, otherwise than by contrary evidence. As to the s econd argument for the complainers, That the wit- ness had purged herself of malice, and therefore that any vague, foolish expression she may have used, could not be admitted to proof, to evidence the contrary; The petitioners have no occasion to oppose this argument. Ma- lice is no doubt an act of the mind, and a person who has been once actuated by it may afterwards divert himself of it; and therefore it may be, w ith much plausib ility, maintained, that when a witness declares upon oath he harbours no malice, that ought to be sufficient evidence; though, at the same time, it cannot be disputed, that when it is proved that he has done or said things expressive of malice, there is room, to suspect his veracity in purging himself of it.. But your Lordships will advert, That the petitioners did not adduce Margaret Ounston, and Christian Thomson, to discredit Anne Thomson’s evidence, by proving, that she actually har- boured malice against the respondents, though she had sworn she did not. If they had, the argument for the complainers would have applied. But they adduced these women to discre- dit Anne Thomson’s evidence, upon this medium, That she had falsely denied a fact upon oath, respecting herself, which she knew and, as it was recent, could not but know and remem- ber to be true. The fact was, That she had, some short time before she came over to Edinburgh as a witness, uttered st rong malicious expressions against some of the respondents. This was a f a c t im proprium, and a recent fact, which the witness could not but know and remember. Accordingly, she does not pretend any failure of memory, or that fhe was not positive whether she said so, or no t; but she swears positively, and point. point blank, That she never used any such expresio n, or words of that meaning. Now the petitioners have brought two wit- neses, against whom no exception whatever was offered, who concur in deposing, That they both, at the same time, heard her use the expresio n s which she has refused upon oath. It is palpable, that either Anne Thomson, or these two women, were perjured; and, the petitioners humbly apprehend, there can be no doubt, for many various reasons that will readily occur that the perjury lies on the side of Anne Thomson: And therefore, as there can lie no doubt that perjury, in one particu- lar, must discredit her whole oath, it was competent and proper for the petitioners to adduce these two witnesses; and it is reasonable and just that these two depositions should make part o f the state in order to detract from the credibility of this Anne Thomson, on whose deposition the complainers are to found, as material for them, against the respondents, the now petitioners. I t w a s observed, that expressions, used by a witness in conversa- tion, ought to have no weight: That a witness, who wanted to cast himself, might use such expression, and give different ac- counts of the matter, in order to found an objection; and accord- ingly the Court had lately, in the cafe of Anne Fairie, about a marriage, refused to allow a proof, that a witness had given diffe- rent accounts of the matter. But, with great submisio n, this does not apply at all to the present case. Had Anne Thomson honestly acknowledged, That she had used the above expresio n s against the Martins, the peti- tioners would not maintain that there was much in them; as they might have escaped from her rashly, or foolishly, in conversa- tion; and as she might have diverted herself of malice, supposing her once to have had it, of which, her purging herself upon oath was strong evidence. For, it is not upon the import of the ex- presion s the petitioners found; but upon her s olemn false denial of t hem upon oath, which shews plainly, that she is a witness that has no regard to truth The case therefore, of Fai r i e d oes not apply. In that case, had the witness actually sworn That he had never given different accounts of the matter, but always one and the same; and, had the Court refused to allow an offered proof, that he had so far sworn falsely, because he, in fact, had gi- ven different accounts of the matter, the decision would have ap- plied: But that really was not the state of the question; for the witness gave an account of the matter upon oath, and, in order to redargue redargue his testimony, it was offered to be proved, not that he had sworn any thing false, but that he had given, not upon oath, but in conversation, a different account of the matter. This the Court found not relevant; and ju stly, for the reason above asigned. But your Lordships will perceive, at one glance, that it does not apply at all to the case in hand; in which the question is not as to what a witness has s aid, but as to what a witness has s w ore. For the proof adduced against Anne Thomson is, not that she gave a different account, in conversation, of the particulars in the cause, to which she has deponed; but that she has actually, upon oath, falsely denied a fact. The petitioners shall conclude, on this head, with observing, That, in the case or Douglas, numbers of witnesses have been ad- duced to discredit the evidence of the Mignons, and others, in this way. There is a separate ground, on which, it is imagined, that, at least, the deposition of Margaret Ounston ought to remain as part of the proof, and not be expunged, v iz. That no objection was made by the complainers their counsel or agents, to the taking down her evidence; and, as no objection was made in due time, the petitioners take it to be clear, that there is no locus p œnitentiæ for the complainers, upon taking further advice: That on her evi- dence being taken down, without objection from the complainers, it was ju s quæsitum of the petitioners, which cannot be taken from them without their content; and upon this principle, your Lord- ships determined in Laing’s case. That, in case your Lordships be of opinion to adhere to the interlocutor, yet, it is hoped, your Lordships will, at least, reserve to the petitioners to insi st against Anne Thomson, in an act ion of reprobator, as accords. T here can be no doubt, and the com- plainers themselves admitted it in their petition, that it was com- petent for the respondents, the now petitioners, to insi st in such action; and therefore a reservation to that purpose will be pro- per, as, without it, the complainers may, perhaps, obtrude this interlocutor as a res ju d ica ta, even against a formal action of re- probator, which the petitioners will be under the necessity of bringing against this witness, Anne Thomson, and many others adduced for the complainers, i f it be et ablished, that they can- not discredit their testimonies incidentally; though they are hopeful that will not be the case, on account of the great trouble, delay, and expence, it will occasion to all concerned. The The next branch of the interlocutor, which the petitioners sub- mit to review, is that respecting the deposition of the Reverend Mr John Chieslie. It is manifest that Mr Chieslie is no party in this cause, nor a relation to any party, or connected with the respondents, any o- ther way than as a friend and well-wisher, which the complainers surely will not maintain to be an objection; because, if it were, then asmost every deposition for them would fall to be expunged. It is as manifest that Mr Chieslie can neither gain nor lose by the the event o f this cause. But, however, supposing Mr Chieslie to be even fo unexceptionable, the argument which the petition- ers are to maintain, and on which they hope the interlocutor will be altered, is, That by the law and practice of Scotland, ancient and mo- dern, in all occult crimes and private transactions, where there is a penuria tes t ium, even the most exceptionable witnesses are received: That, in this case, there is the greatest penuria on the part of the complainers; ergo. The first proposition in the above argument is proved by the following authorities and decisions, Stair’s Inst. page 717. in fin e, and page 718, 719. initio. In these passages, that great lawyer treats at length the different objections that may be made to witnesses. His words are: “ Positive law, or custom, has been too apt to reject witnesses who were not morally inhabile; which is very allowable wher th ere is va r ie ty o f w itnesses, if the other party can give sufficient evidence thereof; as when any deed is done at a public market, burial, or marriage; or at solemn con- ferences before friends or arbiters; or by examination of the adducer, if he knew of any other witnesses, and who they were; or by preliminary examination of the witnesses who were the contestes in the point to be proved. In such case, the the judge may warrantably forbear to examine that witness, till some other of the contestes be called: But otherwise, to ex- clude these who by divine law are habile, and thereby to exclude the adducer from his right, is not warrantable; and therefore w hen it appears that th ere could not be many witnesses, these that are pres ent w ill be admitted, though in other cas es they w ill be re- je c ted. Then his Lordship proceeds to specify the particular ojections; and, inter alia, he says, “ Witnesses become inhabile by giving partial partial counsel.” But his Lordship did not underhand by that expression every advice, information, or a Assi stance; for he adds, by way of explanation, " A s by ins t iga tin g the plea, telling the p a r- ty o f his interes t, and offering to depone in his fa v o u r, or being p r e- s ent w i th him at cons ultation w ith la w yers, w h e r e it m ight be sh ow n w h a t w a s necessary to be p r o v e d." And, after enumerating the different objections, his Lordship concludes, “ But in a ll thes e objections against witnesses, w h e r e they are not s imply excluded, or h a v e interest in the caus e, w h ereb y they may ga in or los e, or a near colla tera l relation, or enmity, w itnesses s hould not be rejected, unles s other witnesses uns us p ec t could be fou n d. " And to the same purpose, and much later, Lord Bankton, one of our latest lawyers, in his Inst. vol. II. pages 647, 648. observes, that “ Some cas es requ ire, that a ll pers ons capable o f obs erva tion be adm itted witnesses, as above h in ted. Thus in occult and domes- tic crim es, a ll pers ons are rece iva b le, that a re s uppos ed capable o f knowing w h a t happened, th ou gh, in other cas e s, incompetent; be- cause, fro m the nature o f th e things th ere is difficulty in the p roo f, and otherw is e thes e crim es m ight pas s unpunish e d; and in other cas es als o, w h e r e, fr o m the nature o f them, th ere is a penury o f witness es pres umed. Thus likewis e infamous w h ores are adm itted to p ro v e crim inal conversation in thes e hous es, w h e r e it is pres umed people o f better ch a ra cter do not frequent; and the ev id en ce o f bro- th ers and sist e r s is adm itted, in a p r o o f o f clandes tine m arriages, s uch near relations being gen era lly the only pers ons called th ereto. "And w h ich is more extraordinary, s ometimes the party injured may be produced as a witnes s to p r o v e th e fa c t, w h e r e the pros e- cu tion is at the ins t ance o f the public, as in an indictment fo r rob- bery on the h ig h w a y, rape, or fo r c ib le m arriage; becaus e oth er- w ise the crim e m ight es cape punis hm ent, and the pa rty is not to ga in or los e by the ev en t o f th e tria l. “ It is likewise to be obs e r v e d, That incompetent witnesse s, even in c i v i l cas es, are s ometimes examined by the Court o f Session, ex officio ad informandam conscientiam judicis, v iz. to expis c ate the truth in s ome intricate, obs c ure trans act i o n s, res e r v in g to th emse lv e s the import o f the objec t ions. This is a fter the cours e of the la w of Eng- land, w h ich a llow s witnesses o f th e nearest relation or connection to be examined, lea v in g to the ju r y to consid er the w e ig h t o f the ex- ceptions, as sha ll be s h ow n in the obs erva tion s subjoined. " And his Lordship, on his observations on the law of England as to this particular, quotes Viner’s Abridg. voce T rial, and other books; books; from which it appears, that, in England, all witnesses, however exceptionable, are examined a d rimandam v e r i t a t e m lea- ving it to the breasts of the jury to determine which of them de- serves credit. In conformity to this doctrine, the decisions of this Court have proceeded both in ancient and modern times, as appears from a multitude of cases abridged in the Dictionary, voce Witnes s, vol. 2. page 521. from which it appears, that in occult offences and private transactions, such as clandestine marriages, and other cases where there is a p enuria tes t ium, the predecessors of your Lordships have been uniformly in use of receiving most exceptionable wit- nesses, such as brothers, sisters, and other near relations; and several decisions, to the same purpose, have been given since the Dic- tionary was published. Thus, in a case observed by Falconer, No. 249. your Lordships refused a bill of advocation, complain- ing of an interlocutor of the Commissaries, which allowed a wife to prove maltreatment from her husband, by their common children in fam ilia. And in the noted case of Mis s Jam es M al- colm agains t John Cameron, M iss Malcolm’s mother was allowed to be adduced as a witness to prove that she had not been married to John Cameron. The precise objection stated by the complainers against Mr Chieslie was, that he had given partial counsel. But, with submission, it does not appear from Mr Chieslie ’s deposition that he had given what is understood to be partial coun- sel by lawyers, and particularly by Lord Stair. It indeed appears that Mr Chieslie had given information or assistance to the respon- dents: But it also appears, that he did not nor could not instigate the complainers to the plea, tell them of their interest, or that he was present at any of the consultations of their lawyers; the three alternatives, which alone, in Lord Stair’s opinion, amount to partial counsel. A witness who has instigated a process, or ex- plained to a party his interest, and spirited him up to insist in it, or who has attended the consultation of lawyers for any party, may, with some reason, be considered as a party himself, as in reality the process is entirely owing to him; and as it has been commenced on his advice, there is great room for suspecting that he may go improper lengths to carry it through. But there is a great difference between advising people to bring a process, and giving giving advice or information in a process already brought, on other advice. In such cafe, there is by no means the same reason to suspect any undue biass as in the other. The complainers, in their petition, seemed to lay a good deal of stress on a paper in Mr Chieslie’s hand-writing, from which they alledged he himself had been examined. As to this, the fact must be explained, which was, that Mr Chieslie did, at the defire of Mr Alexander, when there was no intention of calling him as a witness, put into writing several particulars, which he understood would come out in evidence, chiefly relating to different hearsays which the complainers at- tempted to prove; and there is one sentence in that paper, in which he says, that Bailie Martin had told him in confidence, the first intention of the town-council to have their debts paid, but as often denied that ever this intention was carried into execution, or any bargain made; and that the bailie has often told him this with an air of candour and sincerity, which left him no room to think that he was telling a falsehood; and that the bailie told him this, first, as he thinks, in the month of October: That the reason he said nothing could be done for the town, was the number of candidates, and the council’s having split among themselves. This is the single sentence in that paper, together with another relative to what Robert Ramsay had said to Mr Chieslie, in a conversation upon which he was examined; as appears from the paper itself, which the petitioners are willing to produce now, as they were before the Commissioner.. When the complainers took notice of this paper during the course of Mr Chieslie’s examination, the petitioners immediately produced it: but as there were a number of names mentioned in this paper, it was moved, that it should be shown to the lawyer then attending for the complainers, that he might judge whether its production was material for his clients or not; and he, after perusing it, having declared that he did not think it was, and that he was willing the interrogatories put to Mr Chieslie about it, and his answers there- to, should be scored, it was accordingly done: So that it was, with submission, very improper, and very surprising, that the complainers should, in their reclaiming petition, bring in this cir- cumftance, and endeavour to lay hold of it. However, supposing it was proper and competent for them to found found on this paper, after formally consenting that nothing should be said about it, it is thought it cannot avail them so far as to call Mr Chieslie ’s deposition altogether. Nothing is more common than to inquire at witnesses what they can say in any matter; and to this inquiry the answer may be made, either v iva vo ce, or by a letter; and, unless this were allowed, parties would be very much at a loss what witnesses to cite. But, in this case, what has been done does not amount to so much as if a letter had been written to Mr Chieslie, inquiring what he could say in this matter, and he had returned an ans w er in another letter; for when Mr Chieslie wrote the paper in question, neither he nor the respondents had the most distant imagination that he was to be cited as a witness. And here the petitioners mult lay before your Lordships a decision, which they take to be perfectly applicable to, and decisive of the present question. It was in the case Ellis contra the Duke and Dutchess of Hamilton, determined 16th June 1681, collected by Lord Stair, as follows: “ Mr John Ellis having insi sted in the probation of the tenor of a bond granted by the Earl of Lanerk and others, and craving Alexander Gelly to be examined as a witness, it was alledged, that he could not be a witness in this cause, because of a letter produced, subscribed by him alter interning of the cause, acknowledging to have seen the bond in question; which letter bears to be in return of a letter of the pursuers, and is after the interning of the pro- cess; and therefore it is proditio tesimonFor this witness having subscribed the point in question, he is no more an e- qual and unsuspect witness, being biassed by his letter; for i f he should depone contrary thereto, it would incroach upon his honesty and fidelity, and is a tentation upon him to swear con- form to his letter. And the same ground that excludes a wit- ness who is prompted, must exclude a witness who is pre-enga- ged by his subscription; for whatever a witness may say verbo, it will not biass him to depone as a letter; nam litera scripta manet; whereas words are not extant, and may be mistaken, and no witness could be put to depone what he had said v e r b o; and if such a preparative should be approved, it would encou- rage parties to pre-engage their witnesses under their hands. It was answered, That proditio testimonii, is only after a witness is cited, where he declares what he will depone; but this wit- ness is not cited. 2do, This person is a necessary witness, be- cause he was a servant of the clerk’s at that time, and had the bond in his hands by his office. “ The “ The Lords sustained the objection, and found this witness not to be above exception; yet being the clerk’s servant, who had the bond in his hand, they ordained him to be examined cum nota, reserving to themselves to consider what it should import.” This is all for which the petitioners insist in this case. But there is a separate reason why the complainers ought not to be al- lowed to have Mr Chieslie ’s oath expunged; for they certainly did ac- quiesce in the interlocutor of the Commissioner, allowing him to be examined, and reserving the consideration of the objection to the Court at advising the proof for on every occasion where the com- plainers were resolved to oppose taking down a deposition, they have insi sted that the Commissioner should report the objections, and take the opinion of the Court thereon; and all they meant by specially interrogating Mr Chieslie in initialibus, was to detract somewhat from his credibility, by proving that he had been a fort of agent for Mr Alexander. This fact was not formerly stated or adverted to on the part of the petitioners; but it is certain, and can be proved by Mr Alex- ander Ross, the Commissioner, that he asked the counsel attend- ing for the complainers, whether or not he inclined that the opi- nion of the Court should be taken, or if he would be satisfied with Mr Ross’s; upon which Mr Ross was told, that his own opinion was all that was wanted; he gave it for examining the witness, reserving consideration of the objection; and no more was said on the part of the complainers, who did not, till long after, entertain any imagination that Mr Chieslie ’s evidence could be set aside altogether. From what has been above submitted, the petitioners are hopeful they have satisfied your Lordships as to the proposition with which they first set out, v iz. That, by the law and practice of Scotland, ancient and modern, in all occult crimes and private transactions, where there is a penur ia tes t ium, the most exceptionable witnesses are received. The next thing proposed was, To shew that there was a penuria in this case. A multitude of witnesses have been cited on both sides; but not above one or two of them have said, or can say any thing as to the material point at issu e: All the rest are cited to prove and disprove hearsays, which are of little consequence. The point at issue is, whether or not the last Michaelmas election was was brought about by a corrupt bargain for paying the town's debt, entered into by Mr William Alexander and Bailie Thomas Martin, impowered by the rest of the counsellors. Now, from the nature of the thing, and from the manner in which the proof has been conducted by the complainers, it is apparent, that there must be the greatest penuria on the part of the petitioners; for the complainers would not allow Mr William A- lexander, Bailie Thomas Martin, or any one of the respondents, to be examined. By this, indeed, they have brought likewise upon themselves a very great penuria; and accordingly James Laing is the only witness they have adduced, who, it is pretended, swears any thing to the purpose, though it is believed they have very lit- tle hopes to make any thing of his oath, for reasons that have been already explained to the Court. But it is obvious, that there is as great a penuria as can occur in any case on the part of the petiti- oners; and therefore it would be extremely hard to exclude them from examining the few witnesses that can relate what account Bailie Tho- mas Martin gave of this matter. It is not to be expected, that Bailie Martin would talk to many on this subject. Mr Chieslie is one of the few to whom he did, and that fully and fairly. The R everen d Mr D avid B eatb minister of the gospel at Pittenweem, a witness addu- ced for the complainers, has indeed deponed to the account Bailie Martin gave of this matter, in a manner that must be fatal to the complaint, if the petitioners can corroborate his evidence by that of another witness; but if they do not, when the cause comes to be argued, the petitioners will be told by the complainers, that Mr Beath is but a single witness, and therefore not to be regarded, though his veracity be unquestionable. This shews how necessary, a witness Mr Chieslie is, as he concurs with Mr Beath in almost every particular. And therefore, and as there is the greateft p e nu- ria on the part of the respondents, which is entirely owing to the management of the complainers, it is hoped your Lordships will receive Mr Chieslie ’s deposition, at least cum nota; or in case your Lordships should not incline to go even thus far at present, the petitioners must humbly move your Lordships, to delay the consi- deration of the question as to the expunging Mr Chieslie’s oath, till the whole proof is laid before the Court; as your Lordships will then see, whether there is a penuria or not, and have an op- portunity of weighing the evidence of the contes t es, as Lord Stair speaks. In caseyourLdhipl ontinue to be of opinion, that tho legal legal objection to Mr Chieslie’s evidence cannot be got over, it is submitted i f it would not be proper to express in the interlocutor the reason for expunging it. This the petitioners mention entirely on Mr Chieslie’s account. He surely was not to blame for compearing before the Commissioner as a witness, in obedience to the citation given him by authority of this Court; on the con- trary, i f he had not appeared, he would have been very much to blame. Your Lordships know how much, in cases of this kind, parties are heated and inflamed, not only against one another, but against the agents, friends, and witnesses for their antagonists. I f your Lordships interlocutor shall remain in general, ordering his oath to be expunged, it will be pretended, that this was on ac- count of his having sworn contrary to the truth. In fact, this is the use that has been already made of it, which must bear extreme- ly hard upon any man, especially upon one of Mr Chieslie ’s cha- racter and profession: And the alledgeance is most unfair and in- jurious; for his oath was ordered to be expunged, not because it was untrue, but because he had acknowledged, in the initials of it, that he had given advice and information to the petitioners. Nor did the complainers themselves, in their petition, object to it on that head, but singly on this, that there arose a lega l object i o n to his testimony, from what he had acknowledged in the initials of it. And indeed the complainers were so far from impeaching Mr Chieslie’s veracity, that they themselves cited him as a witness for them, the very day after he had deponed for the petitioners, as ap- pears from the execution against him in process, though they af- terwards were advised, it would be more for their interest to get quit of his evidence altogether. May it th erefo re pleas e you r Lordsh ips, to r e v i e w you r form er interlocu, and to find, 1mo, That the depos itions o f M ar- ga ret Ouns t on and C hrst i a n Thoms on must remain, and make a part o f the p r o o f in this cause; at least, to find, that the said M argaret Ouns t on's dmust remain, in resp e c t th e complainers did not object th e r e to; at any rate, to r e s e r v e to th e petitioners to insist in an action o f reprobat or against Anne Thomson, as a c co r d s: 2do, To fin d, that, the depos ition o f th e R ev eren d M r Chies lie must als o remain, and make a part o f th e p r o o f; at leas t, to s upers ede determ ining w h e th e r his depos ition should be expunged or not, till th e w h o le p r o o f is p rin ted and laid before your Lordship. According to ju stice, &c. JO. M A C L A U R IN.