Answers 1766

July 16. 1 766. A N S W E R S F O R Thomas Martin, and others, Magistrates and Coun- sellors of Pitenwm; T O The P E T I T I O N of P eter Ramsay, Andrew Wilson, and others. O N the first day of last winter-session, PeterRamsay, and others, preferred a complaint to this Court, setting forth, That the election of magistrates for the borough of Pittenweem, made on the 10th of September preceding, had been influ- enced by a corrupt bargain to pay the town’s debts, en- tered into between the respondent, Thomas Martin eldest bailie, and Mr William Alexander; and therefore pray- ing the Court to reduce the said election. This complaint was absolutely groundless and false, and the complainers knew it to be so, as is now vouched, by the evidence adduced: and particularly by the deposi- tion of the Reverend Mr John Chieslie, which the last pray- er of the petition has obliged the respondents to annex. From that deposition, and other evidence, there is no room to doubt, that though, at the beginning of the election, when there was no competition of candidates, and the council council unanimous, there might7 have been an inten- tion to do something for the town; yef all thoughts to that purpose were dropt, whenever a competition of candidates, and a dissention among the counsellors took place, because the oath prescribed by the statute of Geo. II. could not have been conscientiousl y taken, had any thing been actually done for, or promised to the town. This the complainers, particularly Peter Ram- say, well knows was the case; and therefore, it is in proof, that Robert Ramsay, one of the respondents, told Mr Chieslie, that he could not swear there was a bargain, without ruining his own s oul; adding, that he had acquainted a friend of Sir John Anstruther’s, who had been tampering with him, to that purpose, that all that person had, would not make a Jamie Laing of him. However the complainers, or rather those who use their names, imagining that it would be in their power to con- duct their proof in such a manner as to exhibit only a part, and not the whole of the truth, were pleased to entertain very sanguine hopes of reducing the election. Against the complaint which they preferred, the respon- dents were advised to plead this defence, in order to save all further trouble, viz. That the complaint came too late, not having been presented. within two calendar months after the election. This defence however the Court was pleased to over-rule; But the respondents being still advised that there was a great deal in it, and having heard several Judges of this Court give their opinion for sustaining it, they appealed to the House of Lords; but that honourable house affirmed the judg- ment of this Court, with £ ioo costs, which sum has been long ago paid to the complainers; and therefore it does not occur, to what purpose the petitioners should so often make mention of this circumstance. Though this judgment of the house of Lords was pro- nounced as early as the 9th of February last, yet the com-. plainers plainers took no step to proceed in their proof, during the remainder of last winter-session; neither did they do so during the whole of the ensuing vacation; and it was not till the 14th of June last, that they applied for and obtain- ed a renewal of their act and commission, and some days thereafter intimated to the respondents, that they were to go on in their proof with the utmost dispatch. Upon this the counsel and doers for the respondents re- presented, That it would be unsufferably inconvenient, and next to impossible, to conclude this proof, so as to get it ad- vised this session, though the Court should have time to judge it, which, it was believed, would not be the case, and that it was extremely unreasonable in the complainers, to insist to drive on such a cause in the hurry of a sum- mer-session, when they had delayed it during the vacation, the proper time for such business. Upon this, the complainers exclaimed, that all this was affected, and nothing but a sham to delay the cause. The respondents then proposed, that the attendance of lawyers should be dispensed with on both sides; but this the complainers would not agree to. The respondents then had an intention of applying to the Court for relief from the distress, in which the hurry- ing on this proof would involve them, their lawyers, and agents; but as it was foreseen, that an outcry o f. delay would be raised upon this, they resolved to humour the complainers, and fall heartily to work in leading this proof. With this view the respondents, with their counsel and agents, did attend the commissioner for about a fortnight; during which time, of the 70 witnesses cited for the com- plainers, 26 were examined, and of the 90 cited for the respondents, only 9. The petitioners are pleased to say, That various artifices were employed by the respondents, in order to protract and spin out this proof. But. But this the respondents do aver to be a most egre- gious misrepresentation. The witnesses were interrogated, on the part of the respondents, by Mr William Alexander, or by counsel, and there was no intention on their part to to protract or delay; for proof of which assertion, and to redargue what is set forth in the petition, the respondents appeal to the following evidence. 1st, They appeal to Mr Alexander Gray, one of the com- missioners who commonly attended; for they are certain that gentleman will not say, that there appeared to him a- ny intention, on the part of the respondents, to protract on spin out. 2dly,This is evident, from comparing the numbers of witnesses that have been examined, with the space of time employed. In less than 12 days, no less than 35 wit- nesses have been examined, some of whose depositions a re 34 pages in length; a number which it would have been impossible to have got through in that time, had the re- spondents been dilatorily disposed. Lastly, This is evident, from this circumstance, That neither the respondents, nor their counsel, made any ob- jection to any witness, or to any question that was put by the complainers. There was, no doubt, a good deal of time unnecessarily wasted; but that was entirely owing to the fault of those on the other side, who, every now and then, fell a dictating long-winded objections to witnesses and to questions, as is evident from numberless passages of the proof, and, indeed, from this petition itself. The cross examination of some witnesses, indeed, lasted a conside- rable time, and one of them (Laing’s) is not yet end- ed; but that, also, was entirely owing to the fault o f those on the other side, who most disputatiously controverted the competency of every cros s-question, of which then were afraid. ' S So standing the fact, the respondents are persuaded, that your Lordships will think it was highly improper to aver the contrary in this petition. The petition, now to be answered, contains three re- quests, to which the respondents shall speak in their order. The f irst is, That the ad and commisio n should be so renewed, as to hinder the respondents from citing any wit- nesses in consequence of it, and to confine them to those cited before the prorogation: And, in order to give some colour to this extraordinary demand, the petitioners talk, page 4. of an original list, upon which the parties joined issue at the commencement of the proof. To this it is answered, That this original list is all pure fiction. Parties were allowed a proof, in common form, without being obliged to give in any lift to one another; which is, indeed, never required in civil cases. The re- spondents, indeed, did once propose to the complainers, that a note should be given in hinc vide of what witnesses were to be adduced by either party, that they might be ready to say whether they had any objections, and what they were, to the witnesses adduced; but to this the complainers would not consent. But as for any original list, to which the parties were confined, the respondents never heard of it; nor is there any such thing in existence. As the complainers did not specially condescend on the circumstances they meant to prove, or exhibit any list of witnesses, but took a general interlocutor, in common form, allowing a proof of all facts and circumstances, it was impossible for the respondents to know what the com- plainers pointed at, or what witnesses they were to ad- duce, till they got some infight from the proof for the com- plainers. And as the complainers set forth, in this very peti- tion, That they have not yet done, but must examine ten wit- nesses more, the respondents cannot say, whether or not it will will be necessary for them to cite more witnesses than they have already done. Of the proof adduced by the com- plainers, ninety-nine parts out of one hundred relate on- ly to hearsays, or clatters, in the town of Pittenweem, as the witnesses very properly term them. Thus John de- pones what he heard Peter say, in the house of Thomas, and before such and such persons. Now, it is Purely com- petent for the respondents, to redargue what John depones Peter said, by the oaths of Thomas, and those alledged to have been in company at the time; and, therefore, as the complainers, by their 10 witnesses yet to examine, may per- haps attempt to prove more hearsays, it would be extreme- ly hard and unjust to preclude the respondents from their exculpatory witnesses, by confining them to those they have already cited. If the complainers will declare their proof concluded, or that they are not to attempt any new topic by the witnesses they have yet to examine, the re- spondents, very probably, would not inlift for liberty to cite other witnesses. Only it must be observed, that on the renewal of the act and commission complained of, the respondents have already cited, as a haver, Mr William Alexander, to whose examination, even in that character, the complain- ers have made objections, which at present depend before the Court; and the respondents would likewise, at any rate, insist upon the examination of Mrs Jean Anstruther, sister to Lord Newark, who is an extremely material wit- ness for them. This Lady was in town during the course of the examination; and the respondents caused cite her, by leaving a copy for her in the house of Sir John An- struther in this town, in which, according to their in- formation, she resided; but as they understand she may alledge, that was not the place of her residence, and on that account, has disobeyed the citation, in all events, the complainers would chuse to have a renewal of the, diligence. diligence as to her, that they may cite her, i f possible, personally, or at the house of Lord Newark, where it is impossible to deny she usually resides. But as the com- plainers have obtained an interlocutor allowing a proof of all facts and circumstances, as they cited what witnesses they thought proper, and as they gave in no special con- descendence of facts, or list of witnesses, the respondents imagine, your Lordships would not chuse to cut them out of any exculpatory evidence which has come to their knowledge since the last examination, or that may come to their knowledge in the course of the other, which is to proceed in consequence of the prorogation. The petition, in the second place, complains of the manner in which the respondents have conducted their proof, in so far as they have endeavoured to reprobate or discredit the testimonies of witnesses, by witnesses on their part, which the complainers alledge is incompetent for them to do, as nothing can be admitted to proof, but. what is contained in the complaint and answers, or rela- tive thereto; and therefore, that the respondents cannot re- probate, or discredit, the testimonies of the witnesses for, the complainers, otherwise than by a formal reprobator, brought with concourse of the K ings Advocate: And therefore the complainers insist, that the depositions of two witnesses, adduced to destroy the testimony of Anne Thomson, should be expunged; as also, in general, such other depositions, or parts of them, as are liable to, and have had the same objections made to them. The respondents will first consider the objection as to the witnesses against Anne Thomson, and then the gene- ral point. F irst, then, with regard to Anne Thomson, it must be observed, T hat the petitioners misrepresent the question very much; for they have not endeavoured to prove, that she actually had malice against the complainers, though she she actually swore she had none: for if they had, the argument in the petition, that her having purged herself of malice was sufficient, might have applied: For your Lordships will be informed, that this question was put, inter initialia, to Anne Thomson, “ Whether she ever said she would do the Martins (the respondents) an ill turn, and that they deserved it at her hand, or words to that meaning?" She, in answer, deponed, " 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 caufe.” The respondents, in order to discredit her testimony, adduced Margaret Ounston and Christian Thomson; the first of whom deponed, That “ she (Anne Thomson) said, That if she came over, it would be nothing to the Mar- tins advantage, for she would do them an ill turn, i f s he could do i t: That Christian Thomson, who stays near the deponent in Pittenweem, was present when Anne Thomson expressed herself as above. " Christian Thomson depones, That “ she (Anne Thomson) told the deponent, that she expected to get a charge to the court; and if she came over, it should be nothing to the Mar- tins advantage, for if she could do them an ill turn she would do it.” From this it is plain, that the respondents are not en- deavouring to reprobate or discredit Anne Thomson’s te- stimony, by proving, that she actually harbours malice: against the respondents, though she has swore that she does not; for if that were the case, then the decision quoted in the petition, and the argument arising from her having purged herself, would apply: But they have dis- credited Anne Thomsons testimony, by proving a fact, viz. That she did say so, though she has averred upon oath that she did not. And the respondents apprehend, it was competent and proper for them to do this, as the maxim maxim, falsum in uno, falsum m omnibus, directly applies to the deposition of witnesses, and is held to be a rule in judging of them. As the respondents have given in no complaint against Anne Thomson on account of her evi- dence, the above two depositions, which contradict her, avail only ad hunc effectum, to discredit her evidence; but it cannot infer punishment, or any other consequence against her, as that indeed can only be done by an action of repro- bator against her: But surely they must be available to the effect of discrediting her evidence, as to which more shall be said under the general point. But what puts this question as to Anne Thomson out of all dispute, is, that no objection whatever was made by the complainers, or their counsel, to the adducing Margaret Ounston, or to the questions put to her, with a view to discredit Anne Thomson’s evidence. I f a party acquiesces in examining a witness, or putting inter- rogatories that are incompetent, it is clear that he cannot, upon taking further advice, and being informed that what has been deponed is against him, apply to the Court upon pretence of an irregularity, or incompetency, to which he did not object in due time. However, the re- spondents have no occasion to insi st much upon this, be- cause they imagine your Lordships will have no doubt, that it was competent for the respondents to examine these witnesses, though the complainers had objected thereto. As to the general point, which is, Whether or not it is competent to the respondents to discredit, by witnesses, the testimonies of those adduced by the complainers; the respondents imagine that it is perfectly clear that it is, and that all the argument in the petition proceeds on a misapprehension, real or affected, of the nature of an action of reprobator. That That action must be brought with concourse of the King’s Advocate; and the witness must be made a party to it, because it concludes, not only for cancelling his testimony, but for subjecting him to infamy, or other punishment. That action, i f brought after sentence, has the effect to set it aside; i f before, procedure must be stayed till the issue of the reprobator; and therefore, it regularly ought always to be brought before sentence, Lord Bankton’s institute, vol. 2. p. 654. par. 5. and Dic- tionary, vol, 2. p. 195. in fine; and that action can only be founded on the perjury of the witness in the initialia. Such are the qualities of this action, as is explicitly and directly laid down in the authorities above referred to, which the respondents have not transcribed at large, because there can be no doubt of the positions. And such being the qualities of this action, it is ob- vious, that it must be absurd to maintain, that it is only competent to discredit a witness’s deposition, but by a process of reprobator; for it may, and must very of- ten happen, as it has done in this cafe, that a witness may not have perjured himself in his initials, and yet has perjured himself in his deposition in the cause. Now, in such a case it is clear, that no relief can be had by an action of reprobator, because it respects only the initia- lia; and therefore, all that the person, against whom such witness is adduced, can do, is to discredit and destroy his deposition by contrary evidence; and accordingly, in e- very case, parties have all along been allowed to discredit the testimony of witnesses adduced against them, by con- trary evidence, either of witness or writing. Numberless instances of this must readily occur to your Lordships; and in the very case of Douglas, which your Lordships are now trying, many witnesses were adduced, for no o- ther purpose, but to discredit and destroy the evidence of others. But But supposing it were competent, by an action of repro- bator, to challenge a witness’s deposition for perjury there- by committed, not in the initials, but in the cause; yet it would not therefore follow, that this was the only remedy, and that the deposition could not be discredited incident- ally. The action of reprobator is, no doubt, a pingus remedium, as it not only has the effect to discredit, but to destroy and cancel the witness’s deposition, and, further, to subject him to punishment. But there is nothing to hin- der a party to wave this pinguius remedium, and betake him- self to one less formal and severe, but equally subservient to his purpose, by allowing the witness’s deposition to re- main, but bringing such evidence of its falsity, as that it can have no weight or credit. And, therefore, all the lamentation in the petition, as to to the hardship on the witness whose testimony is dis- credited, on account of his not being made a party, is no- thing to the purpose; for, by this incidental method, the witness is not struck at, or concluded against in the least, his testimony being redargued by contrary evidence, singly ad hunc effectum, that it shall have no influence in this par- ticular case. Further, as the action of reprobator, brought before sen- tence, stays procedure till it is discussed, your Lordships will observe, that if this method of a formal reprobator had been taken, the complainers would have had good reason to accuse the respondents of delaying the cause; for long, very long, mult the delay have been, if an action of repro- bator had been brought against every witness for the com- plainers who has sworn untruly. By the nine witnesses which the respondents have examined, they have proved five of those adduced by the complainers, to have sworn what was not true; and, by their other witnesses not yet adduced, they are in condition to prove, that many more have committed the same great offence. And, if an action of of reprobator is necessary against every particular witness years must elapse before this cause can be brought to a con- clusion. I f it be true, that a reprobator stays sentence, of which there can be no doubt, in consequence o f the au- thorities and decisions above quoted, which are uni- form, and in point, this circumstance, of itself, demon- strates the absurdity of the doctrine, that a w itness's testimony cannot be discredited, but by a formal re- probator; though the respondents had no need of its aid for illustrating their argument, as It seems to be clear, that a party, against whom a false deposition has been emitted, if he can prove tha perjury has been committed in the initials, may insist to have the whole deposition cancelled in an action of repro- bator, though he cannot prove that perjury has been commited in the deposition, so far as relates to the cause. But if, on the other hand, he cannot prove that perjury has been committed in the initials, but in the deposition in the cause, his proper, and indeed only remedy, is to discredit the deposition by contrary evidence, and not an action of reprobator, that being confined, as already said, to perjury in the initialia. Besides, the respondents humbly apprehend, that when an interlocutor allows parties to prove the matters s et forth in their complaint and answers, and all facts and circumstances relative thereto, it is obvious, that it is competent, from the last clause of that interlo- cutor, to discredit the testimony of a witness inci- dentally, by contrary evidence. Every fact which the complainers have charged against the respondents, and thought it material for them to prove, it is sure- lv material for the respondents to disprove, and they are intitled to do so; consequently it is plain, that, to maintain the respondents cannot redargue the testimonies of the witnesses adduced for the complainers incidentally, is is, in effect, to maintain, that the respondents cannot bring any exculpatory proof at all, as their exculpatory proof must contradict and redargue the culpatory proof brought by the complainers. So that the drift of the petition, as to this point, is neither more nor less, than to have expun- ged every thing in the respondents proof which the com- plainers think material against them. The petitioners would have your Lordships believe, that their only reason for insi sting on this extraordinary doctrine, is their dread of delay and trouble. But it will not escape your Lordships, that all this is affected, and that their true reason is, a dread of a further discovery and detection.; as perjury is proved against several of their witnesses already, and they well know that it can be pro- ved against many more: And it is this apprehension alone, that has given birth to the various objections with which they have harassed the Court, and their antagonists, for se- veral weeks past. They want to make a job of ju stice, by managing their proof so, as to give only a partial view of the fact, but are terrified for a discovery o f the whole truth. On the other hand, the respondents are desirous of nothing so much, than that the whole truth should come out on evidence. They have done every thing in their power to bring this about. With that view, they have not made any objection to any witness that has been offered, or any question that has been proposed. Which of the two conducts is most symptomatic of a mens conscia rect i, is submitted without reasoning. The third and last request of the petition is, That the deposition of the Reverend Mr John Chieslie should be expunged, and that on account of certain acknowledge- ments made by Mr Chieslie in the beginning of his oath. As to this Gentleman, the fact is, that the respondents di noteauce him as a witness; for which reason, they, and particularly Mr William Alexander, had to no scruple in desiring him to give what information he could, and in receiving it from him. The night before Mr Chieslie was to leave this town, to which he had come accidentally to see his wife, the counsel for the respon- dents, happening to be informed of what he knew, thought it extremely material, and that it was of the last consequence, that he should be examined as a witness; and he was accordingly adduced. The complainers examined Mr Chieslie upon the infor- mation he had given, the whole particulars of which he most candidly disclosed to them, as your Lordships will see from his deposition annexed; so that the com- plainers ought not to have said, that they were with some difficulty drawn from him. With regard to the paper mentioned in the petition, there is only one single fact in it as to which Mr Chieslie was examined, as he deponed, and as appears from the paper itself, which the respon- dents offered to produce before the commisioner: But the counsel for the complainers, after it was shown to him, and he had perused it, was very well pleased, and readily consented, that the interrogatory put to Mr Chieslie with regard to that paper, with his answer, should all be scored, which was accordingly done; and therefore it is astonish- ing that any thing should be said about it in this petiti- on. The respondents do not chuse to make any observa- tions on the conduct of the complainers as to this par- ticular: All they shall say is, that they are ready to pro- duce that paper, i f the complainers chuse it; as the ref- pondents do not mean to plead, that it was improper in the complainers to pry into any papers used by the respon- dents, or their counse l; but it is believed the complainers will not insist for such production. The respondents shall fairly admit, that a person who has exerted himself as an agent in soliciting votes, as a friend in procuring information, or otherwise, is not so unexceptionable unexceptionable a witness as one who has not concerned himself in any shape; but they can by no means ad- mit, that such exertion is sufficient to cast the witness al- together. The utmost length it can go is, that it should be taken cum nota, or read with caution; and that its credibility should depend on the qualities of the deposition itself, and on its being corroborated by circumstances, or other testimonies: And this must the rather hold in a case, where there is a penuria, such as the present; in which, from the management of the proof for the complainers, there is, and must be, the greateft penuria on the part of the respondents. The fact charged is a corrupt bargain entered into by the counsellors of Pittenweem with Mr A- lexander. Of all the counsellors, the complainers have ad- duced the convert, Laing, alone, as a witness. They will not suffer the respondents to adduce any o f themfelves in ex- culpation; and they, with success, objected to Mr Alex- ander: So that it is manifest, there must be the greatest penuria testium, as to this matter, on the part of the re- spondents. And therefore, it is hoped, your Lordships will not set aside Mr Chieslie’s deposition, though you should not think him altogether unexceptionable; and that the rather, because it carries irresi stible marks of candour and truth in its bosom, and will, when the whole proof is laid before your Lordships, appear to be confirmed in the most material circumstances by the oath of the Reverend Mr David Beath, minister of the gospel at Pittenweem, a witness adduced for the complainers. In respect whereof, &c. JO. M A C L A U R I N. Copy of Mr John Chieslie's Deposition. COmpeared the Reverend Mr John Chieslie minister of of the gospel at Saint Monance, cited for the respon- dents, aged about 30 years, married, who, being solemn- ly sworn, and interrogate for the complainers, If or not he has given advice to Mr Alexander, or the agent, or any other employed by Mr Alexander in this cause, with re- gard to conducting the evidence, as to what facts could be proved, or by what witnesses? depones, That he has said to Mr Alexander himself, or some of his friends, that he heard such and such representations of such and such facts, and that he believed such and such witnesses would be proper to be called in the case, to prove or disprove. Being interrogate, When he came last to town? and whe- ther, since that time, he has suggested any questions to be put to the witnesses in this cause, or any facts to be proved, or any persons to be adduced? depones, That he thinks, that as he mentioned, or may have mentioned, such and such witnesses, to prove or disprove such and fuch facts or representations, he may also have hinted at the particular way of proving or disproving these; and believes he may have done so since he came to town, which was on Monday last. Depones, That he did, in writing, suggest, since he came to town, both facts and the names of witnesses; and which writing he gave in to Mr Alexander, as he thinks; at least Mr Alexander was in the room when he gave it. Depones, That Mr Alexander did mention to him, that i f he knew any thing which could be of service in this affair, he would take it kind and friendly i f he would suggest it. Depones, That, since he came to town, he has suggested objections which he thought might be made against some o f the witnesses in in this cause. Depones, That he was not cited till last night about seven o’clock: That he did not know he was to be cited when he came to town; and that he came to town to bring home his wife, who had been left here in- disposed. Depones, That he has informed Mr Alexander, that he knew of facts which might be material in this cause, and informed him fo, both by write and word of mouth; but that this was before he was summoned, or knew that he was to be summoned, in the cause; and that after he had so informed Mr Alexander by word of mouth, he desired the deponent might put it in writing, for the fake of his (Mr Alexander’s) memory. And depones, That he mentioned no facts to Mr Alexander, or any other per- son employed by him, since he was cited. Upon which it was objected for the complainers, That a legal objection arose from what the witness has already said in the ini- tials of his oath, importing, That he had acted as an a- gent for Mr Alexander in this cause, and given partial ad- vice and counsel to Mr Alexander, who had an interest in the cause, to support the election under challenge. To which it was answered for the respondents, That as Mr Chieslie had deponed, he had given no information since he was cited as a witness, there was nothing in the objec- tion; as it was fair and proper to give what information he could, when desired, at a time when he was not cited as a witness, nor did not know that he was to be so. And, without losing time in unnecessary argument, the respon- dents had no doubt the Commissioner would proceed to examine the wi tness; reserving to the Court, consideration of the objection, if that should be insisted for by the com- plainers; though they were persuaded, that the character and candour of this witness would satisfy even the com- plainers themselves, disputatious as they are, that he was omni exceptione major. The The Commissioner allows the witness to be examined, reserving the consideration of the objection to the Lords at advising. And the witness being further purged of partial coun- sel and malice, in the usual form, and being interrogate for the respondents in causa, Whether he ever had any conven- tion with Bailie Thomas Martin in Pittenweem, relative to any intention of the bailie, or the town-council, to get the town’s debt paid? deposes, That he had. And being further interrogate, What were the particulars of that conversation? and, particularly, Whether or not the bailie owned there had been an intention that way, but said, that it had never been carried into execution, or words to that pur- pose? depones, That, at the first meeting the deponent ever had with Bailie Martin, which was several weeks after the Michaelmas election, the deponent having heard the common report of a bargain between Mr Alexander and Bailie Martin, took an opportunity of questioning Bailie Martin on that head, when the bailie frankly own- ed, That, indeed, had his council been unanimous, he was resolved to have had the town debts paid, or some- thing done for the town, at the then ensuing election of a member for parliament, but positively refused, that this intention was ever carried into execution; and gave as the reason why it was not, That different candidates had appeared on the field, and the town-council had split on that account, which effectually prevented any thing being done for the town. And being further in- terrogate, Whether the bailie assigned any reason, why the splitting of the council had such effect as to prevent anything being done? depones, That he said, (meaning Bailie Mar- tin), that, in the case of their having been unanimous, the oath against bribery and corruption would not have needed to have been put, but now that they had split into parties, that oath would infallibly be put. And being inter- rogate rogate, Whether he understood from Bailie Martin, or other- wise knows, that Bailie Ramsay, or any other of the council, had differed with Bailie Martin, before the Michaelmas elections? depones, That with regard to any difference between Bailie Martin and Bailie Ramsay before the Michaelmas election, further than that he heard it com- monly said in the country, that Bailie Ramsay was to vote for Sir John Anstruther, at the election of the delegate, in opposition to Bailie Martin, and a majo- rity of the council, he does not know; only, upon re- collection, he thinks he has heard some difference or o- ther between Bailie Ramsay and Bailie Martin, about some money-affair; and thinks he heard this difference had hap- pened before the Michaelmas election: But with respect to Bailie Wilson, it is consistent with the deponent’s know- ledge, that he had differed with Bailie Martin a conside- rable time before the death of Sir Harry Erskine; be- cause the said Bailie Wilson begged him to write to Sir Harry Erskine, who was his (the deponent’s) ac- quaintance, on that head, and to represent to him, that whatever differences were between him and Bailie Mar- tin, he was a trusty and faithful friend to Sir Harry Erskine. And being interrogate, Whether he had any conversation on an intention of doing something for the town of Pittenweem, with Mr William Alexander, now present? and, i f he had, what passed? depones, That he has conversed with Mr William Alexander with re- spect to such intention, when Mr Alexander never owned to him any intention on his part to have bargained with the town of Pittenweem, and constantly denied, that any bargain of any kind was made, or did subsist between him and the town-council there. And being interrogate, Whether Mr William Alexander did, early in the election- time, inform him of any conversation he had had with the said Bailie Martin, relative to the above-mentioned in- tention of doing something for the town of Pittenweem? depones, depones, That, among the first visits he paid to Mr Alex- ander, Mr Alexander told him, that he never had, either to Bailie Martin himself, or to any of the council of Pit- tenweem, given any reason to expert that he was to bar- gain with them, with respect to the payment of the town’s debt; but that, on the contrary, he had often declared in council, and he thinks to Bailie Martin himself, that he behoved either to carry the council of Pittenweem in a legal way, or he would not have it at all. And being particularly interrogated, Whether or not Mr Alexander had informed him, that Bailie Martin did mention to him, Mr Alexander, that the town would expect their debt should be paid; and that Mr Alexander said, He thought it would be contrary to law to do so; that he called for the act of parliament, which Bailie Martin could not find; but that afterwards he, Mr Alexander, had got the act of parliament from Edinburgh, and shewed it to Bailie Martin, upon which the bailie was satisfied, that nothing could be done in that way, or words to that purpose? depones, That with regard to some general conversation by Bailie Martin, with Mr A- lexander, the deponent may have heard; as also, that he may have heard in general Mr Alexander say, that Bailie Martin did hint the payment of the town’s debt, either to him or some of his friends; and that Mr Alexander did shew him the impossibility and illegality of doing any thing that way: but with respect to calling for the act of parliament, and shewing Bailie Martin the illegality of it from that, the deponent does not remember Mr Alexan- der’s having told him any thing of it. And being inter- rogate, Whether Messieurs Alexander and Martin, in the conversations he has deponed he had with them, appeared to him to speak with candour, sincerity, and truth? and whether or not he believed them? depones, That they shewed every mark of sincerity and truth in all these conversations; conversations; and that the deponent behoved either to believe them, after the solemnity with which they spoke, or. think them very base and abandoned men. And being interrogate, If he remembers how many weeks it was after the Michaelmas election, that he had the first meeting with Bailie Martin, related by him above? de- pones, That he thinks it was in the end of October, or beginning of November. Being interrogate, I f the oath mentioned by Bailie Martin, in the conversation first a- bove related, meant the oath to be put at the election of delegates? or upon what other occasion he understood the oath could not be taken, i f the council were not unani- mous? depones, That he understood he meant the oath that is taken at the election of a delegate. And being inter- rogate, I f he heard of the difference between Bailie Ram- say and Bailie Martin before the Michaelmas election, or at what time he heard it? depones, That he thinks he may have heard it before the Michaelmas election, but cannot be very positive. And being interrogate, from whom he heard it? depones, That he thinks he first heard it from Mr G ibson schoolmaster at Pittenweem. Being interrogated, What were the particulars which Mr Gibson told him concerning this difference? or whether he knows or can give any account of it, further than he has already given, or if any person was present when Mr Gibson told him the story? or if he ever had occasion to hear any o— ther person talk of this difference? or if he ever heard whether or not there was any reconciliation between Bailie R amsay and Bailie Martin? depones, That he does not recoiled what Mr G ibson told him, so dist in ctly as to be able to give any evidence with regard to the particulars of the conversation. Depones, He can give no further account of this difference than he has already given. De- pones, That he does not recoiled, whether any persons were present or not, when Mr Gibson told him the story. Depones, That That he thinks he has heard too of this difference from sundry other persons, but only in a general way, and can- not condescend upon their names. Depones, That there may or may not be a reconciliation between Bailie Ramsay and Bailie Martin, for any thing he knows, but never heard of any such reconciliation. Being interrogated, I f he remembers the particular time of his first visits to Mr Alexander, when Mr Alexander told him, as above de- poned to, that he had declared in council, that he behoved to carry the borough in a legal way, or not at all? de- pones, That he does not recollect the particular time of these visi t s; but that there being a general report in the country, of a bargain between Mr Alexander and Bailie Martin, that introduced the conversation; and he thinks he is sure this conversation happened before the execution of the summons against Pittenweem. Depones, That M r Alexander having conveyed the deponent to a room up stairs in his house at Easter-Anstruther, in which he was to deep, the deponent told Mr Alexander the com- mon report of a bargain betwixt him and the town of Pittenween; whereupon Mr Alexander gave him that ac- count of the affair to which he has deponed above. And being interrogate, Whether Bailie Martin seemed to be e- qually sincere when he talked to the deponent of his inten- tion to have the town’s debt paid, as when he said that there was no bargain between Mr Alexander and him? de- pones, That Bailie Martin seemed to be equally sincere in the one case as in the other; and has often said to the de- ponent, that he would declare before all the judges in the world, his first intention of having the town’s debt paid, which, for the reasons above deponed to, he had laid a- side. And being further interrogate for the respondents, Whether he has had any conversation with any other counsellor of Pittenweem, besides Bailie Martin, and par- ticularly with Bailie Ramsay, about the Rory of the bar- gain about the town of Pittenween? and, i f he had, what passed? depones, That, to the best of his knowledge, he never never had a conversation in his life with Bailie Ramsay, with regard to elections; but that indeed he has had conver- sations with respect to elections with Bailie Ballairdie and Robert Ramsay, and with both of them together in one day, and at one and the same time, in the house of Bai- lie Ballairdie, whither he had gone to get payment of a parcel of wheat which the deponent had sold him. De- pones, That, at that time, mention being made of sundry visits paid Robert Ramsay by some of Sir John Anstru- ther’s friends, the deponent took occasion to ask Robert What he could say as to this bargain with the town of Pittenweem, which was so much talked of? and to ask him, Whether it was true or not that he was now to join James Laing, in being an evidence against the council, as was commonly reported through the country? whereupon Robert Ramsay declared, That he could not swear to any bargain, either publicly or privately made between Mr A- lexander and Bailie Martin, without ruining his own soul; and Bailie Ballairdie most heartily joined him in what he said, and declared, that he could defy any counsellor of Pittenweem to say otherwise. And being interrogate, Whe- ther or not Ramsay or Ballairdie then told him, that he Ramsay or Ballairdie had declared to one in Sir John An- struther’s interest, that all that person had would not make a James Laing of him, or words to that purpose? depones, That Robert Ramsay told the deponent, that he had made this speech to a friend of Sir John Anstruther’s who, on Sir John's account, came to visi t him. Being in- terrogate, Whether Mr Alexander did read to the depo- nent a scroll of answers to the Pittenweem complaint, in- tended for the use of the lawyers? and whether the de- ponent did then say, this is what he the deponent was safe to swear Mr Alexander had told him long ago? de- pones, That Mr Alexander did show him such scroll say- ing, at the same time, there is the fair representation of the the thing, as I told you long before; to which the depo- nent made answer, that indeed it was the representation of the matter he had given him at first. And being interro- gate, Whether or not that written paper did make men- tion of something having been intended for the town of Pittenweem, on the part of Bailie Martin, but which was laid aside, previous to the Michaelmas election, for the reason above mentioned, that the council had not agreed, and an oath was to be put? depones, That in the written paper, Bailie Martin’s first intention was freely admitted, and his falling from that intention, for the reasons above assigned, was also specially mentioned; and upon fight of that scroll, the deponent said to Mr Alexander, that he thought he should not have mentioned at all Bailie Mar- tin’s first intention, but left them even to make out that in the way of proof. And being interrogated, Whether, when he mentions in the former part of his deposition the conversation he had with Bailie Martin, the first time he saw him, or the first meeting, the deponent meant, that it was the first time he had seen Bailie Martin, or was he previously acquainted with him before the elections? de- pones, That he had been acquainted with him for some years; and that, by the words “ first meeting with him,” he means the first meeting he had had with him since the beginning of the election. Caus a scientiæ patet, &c.