Peter Ramsay, Andrew Wilson, John Brown, Robert Dick, James Nairn, Colin Fowler, and John Henderson v. Thomas Martin and others — Memorial, 10 Dec 1766

July 28. 1766. A N S W E R S F O R J u luy 2 8. 1 8 7 6 ANSyuW Wi l s o n, and others, Counsellors and Burgeses of the Bur- row of P ittenweem, l E R F O P E T I T I O N of R aE.81 n 8yldN 6 and others, Ma- gistrates and Counsellors of Pittenweem. IN the complaint presently depending at the instan ce o f the respondents, for setting aside the last Michaelmass elec- tions of the tow n of Pittenweem, as being brought about by means o f bribery and corruption; three incidental quest ions lately occured. The fi r st related to the prorogation o f the term for the examination of witnesses, and the consequences of that prorogation; the second respected the depositions o f Margaret Ounston and Christian Thomson, whose depo- sitions the respondents thought had been improperly ta- k en, and therefore petitioned to have expunged from the record of the proof. The last question is similar to the one now mentioned, and relates to the expunging from the proof, the dep osition o f the Reverend Mr Chiesl y minister o f the g ospel at St. Monance. Your Lordships interlocutor upon the first o f these points is f ina l; b ut the petitioners have reclaimed against your ju d g- ment ment upon the other two po in ts; and the following answers are humbly offered in support o f your Lordships interlocutor. On all occasions, when the parties, upon any incidental points, have come before your Lordships, they have mutual- ly arraigned each other in the conduct of the proof, and the improper and dilatory manner in which it has been carried on; but the respondents at precent shall avoid investigations o f that nature, as there will be full opportunity for your Lordships to judge o f this when the proof is brought before you. One observation, however, will not escape the atten- tion o f your Lordships, that i f the petitioners are gui lty o f the corrupt practices laid to their charge, their interest in every delay is too obvious to need illustration. But, on the other hand, expedition and dispatch is manifestly the in- terest of the respondents, whether the petitioners shall in the event be found guilty or innocent o f the charge brought a- gainst them: To say no more therefore, there is at least a possibility that the petitioners may have an interest to delay the determination of this cause; but the very expence o f it to the respondents, without one circumstance to counterba- lance that consideration, demonstrates the impossibility that they can have any interest to postpone a determination. Your Lordships interlocutor upon the first point now in question, “ has ordained the depositions o f Margaret Ounston and Christian Thomson to be expunged.” The petitioners, in reclaiming against this part o f yourLord- ships interlocutor, have admitted the impropriety o f examin- ing witnesses in hoc statu, to prove previous expressions o f malice against a witness, who has been purged upon oath o f malice against any o f the parties; and they have likeways admitted the incompetency o f adducing witnesses, to prove that the witness has given an account o f any matter different from that which is given upon oath. Both these propositions are admitted; but the petitioners contend, that they are in- titled to adduce these two witnesses, in order to prove a fact against a witness, which the witness herself has denied upon oath. Upon Upon this quest ion, the parties have involved themselves in a long dispute concerning the nature o f an act i o n o f repro- bator, and the particulars in which it is allowed o f; and it must be confest, that altho' our writers upon the law have said much upon this action, and altho’ questions relative to it, especially in former times, have frequently come before your Lordships predecessors, yet the nature o f this action is by no means laid down with that precision which might have been expected, and it is extremely probable that this may have arisen from that change in the practice o f your Lordships, o f allowing acts before answer, and a reasonable latitude to the parties, in proving what facts and circumstances they may think material tor their interes t. But notwithstanding the uncertainty o f the nature o f this action, and the change o f the practice in matters o f proof, the respondents are advised, that there is no example what- ever, wh ere your Lordships have allowed an incidental proof, to be led upon an act and commission, where the tendency o f that proof had no further connection with the subject-mat- ter upon which the parties had joined issue, than merely to throw a slur upon the character of a witness. If a witness in the course o f a proof, shall swear rashly and falsely upon any o f the matters that have gone to proof, then, no doubt, the parties have an indirect title to render the character of the w itness suspicious, by redarguing what is said upon the subject-matter o f the proof itse l f; but, to bring a witness, not with the view to lay any one thing relative to the matter upon which the parties have joined issue, merely to prove that another witness has sworn finitely, is, with submission, what cannot be allowed of in an incidental manner upon the act and commission which has been issued by your Lord- ships, but must either be done by an action o f reprobator, i f the falsehood is in initialibus, or by a common action on the head o f perjury, it the falsehood is in substantialibus of the oath. The petitioners say, that i f they are not to be allowed to discredit witnesses in this manner, they will be deprived al- together t ogether o f the benefit o f their exculpatory proof, because the tendency of that proof, is to discredit and take off the force of the culpatory proof, as the petitioners term it. B ut this apprehension is altogether imaginary, and proceeds entirely upon a want o f attention to the nature o f an excu lpa- tory proof, and the obvious difference there is betwixt that and the attempt now made. The respondents have already admitted, and do still admit, that the petitioners have a clear title to redargue every word a witness has said upon oath, prvideflus the marsuponwicvgf:Fxl,Sdyb-j.I have given the bribe, or the person who is said to have received the bribe, were not at the place, nor at the time condescended upon where and when the bribe is said to have been given; and if the defenders in a charge of bri- bery, should be successful in establishing those exculpatory facts, such a proof would no doubt amount to a proof of penury on the part of the witness who said so, and the de- fenders would be justly intitled to establish that perjury in- cidentally upon the act and commission which had gone out, because that perjury directly tended to hurt the interest of the defenders in those very matters upon which the parties had joined issue and gone to proof. Now the petitioners will be pleased to compare the attemptwhich they now make, with the instance just given, where-by the respondent's meaning will be fully illustrated, andthey themselves, if they chuse it will clearly perceive thedifference betwixt what they now attempt to prove, and thereal nature of an exculpatory proof. Their averment is, That Anne Thomson, before she was brought upon oath, used ex-pressions of malice against the Martins; and when brought upon oath, she denied those expressions. They do not pre- tend tend to say, that they should be allowed a proof of t h i s ma- l ic e; they have admitted this to be improper; but they insist they should be allowed to prove that Anne T homson upon a certain occasion said, She had malice against Martin. Now the respondents beg leave to ask, Whether it would, in any respect whatever, diminish the force of the proof o f bribery adduced by them, altho' it should be proven that this wit- ness had upon a certain occasion said, She had malice a- gainst the Martins? That fact might be extremely true, and y et it is not in the least degree inconsistent, nor does it in any degree extenuate or detract from the truth o f any one act o f bribery sworn to by Anne Thom son herself, or any other witness in this cause. Yes, say the petitioners, it takes off the force o f it, in this view, that it throws a suspicion upon the veracity and credi- bility o f Anne Thomson, one o f the witnesses who has sworn to the bribery. But this is a latitude o f proof, which the smallest attention to the practice and the law o f this country will show to be clearly reprobated: And to show this, your Lordships have only to attend to a thing which too often occurs in proofs led before Commissioners, and o f which some very notorious examples have occurred in the contest s which have taken place relative to this distr ic t o f burrows. T hat the respon- dents allude to is, the constan t attempt made by parties, both in the course o f civil and criminal business, to adduce evi- dence in order to prove either a bad character, or even bad actions against a witness examined in the course o f the proof; but so often as attempts of this kind have been judged of, they have been as often discountenanced and condemned by your Lordships. The petitioners may perhaps have heard what past with regard to an objection offered against one Halliday,a schoolmaste, in one o f the proofs wh ch have been lately carried on, relative to this district o f burrows. It was ofer- ed to be proven, that he was a notonous liar; and that he was guilty o f many gross acts of falsehood and fraud of dif- ferent kinds; but your Lordships ordered the objection expunged. expunged from the proof, as injurious and calumnious, and would allow no proof to he led with regard to the facts offer- ed to be proven, altho’ the facts were specially condescended upon. Now the petitioners will be pleased to reconcile what has been just now mentioned, which is but one o f many exam- p les which might be produced o f the uniform practice o f your Lordships in questions o f this kind, with the doctrine which they now plead. I f it were allowable to adduce proof merely to throw su spicion upon the veracity o f a witness, a l- tho’ not confined to the subject-matter o f the proof itself, upon what principle could your Lordships, in every cafe whatever, refuse a proof as to the character o f a witness? for surely, If I could prove a witness to be either a liar, a calumniator, a for- gerer, or guilty of any other crime the most flagrant that can be supposed; it cannot be denied but that a p roo f o f such facts would undoubtedly tend to throw a suspicion upon the veracity and credibility of such a witness. This is sufficient to show, that it is not enough to alledge that a proof will tend to detract from the credibility o f a witness, in order to o b tain such a proof. A party is at full liberty to examine what witnesses are thought proper to redargue the deposition of a witness, in so far as that deposition relates to the facts in causa, and upon which the parties have joined issue and gone to proof; but it would be endless and out o f all fight, if parties, as in the present case, were allowed insidiousl y to ask questions at witnesses, noways relative to the points in is- sue, merely With the view o f afterwards bringing witnesses to contradict those facts. Th e case of the Mignons in the Douglas cause, alluded to by the petitioners has no sim ilitude to the present quest ion; f o r if a party shall have reason to suspect, either that the w it- nesses have been improperly taught, or that any improper influence has been used with them, either to add more than they really knew, or to conceal part o f what they really did know, it is highly proper that those facts should be expiscate, because they are intimately connected with the subject-matter upon upon which the parties have gone to proof. Such was the case with the Mignons in the Douglas cause. It was suspect- ed that part o f their knowledge upon which they swore, had been gathered from papers which had been improperly distri- bute, and put into their hands. The quest io n was accord- ingly asked, Whether they had seen any such papers? and upon oath they solemnly denied it; which laid one o f the par- ties under the necessity to redargue them by other witnesses, who not only proved that they had seen them, but that the witnesses themselves had borrowed those very papers from the persons who had denied they had seen them. The intimate connection o f such a proof with the real subject-matter o f the cause, is extremely obvious, and clearly differences that case from the one now in hand. The respondents therefore hope, upon the general principles which have been laid down, that your Lordships will be of opinion, that the proof now attempted by the petitioners is highly improper; and that the refusal o f it will by no means tend to diminish the utility o f that exculpatory proof, which by modern practice is indulged to all defenders. But the respondents beg leave to carry their argument up- on this point still further, and to beg your Lordships atten- tion to the particular species fa cti, which is now under consi- deration, The quest ion put to Anne Thom so n: The answer to which, now proposed to be redargued, is, “ Whether she ever said she would do the Martins an ill turn, and that they deser- ved it at her hand, or words to that meaning?” She in an- swer deponed, “ That she never did say so; and that she nei- ther has, or bears any ill-will to the Martins, or to any o f the respondents in this cause.” Upon the manner in which the quest ion is here put to the w itness, it will be evident to your Lordships, that it is simply impossible, by any proof whatever, to redargue the answer made by this witness. It is not pretended to be proven, nor is the quest ion asked at her, Whether she ever said totidem ver- bis, “ I have malice againts the Martins?” but the quest ion asked, asked, is, Whether she ever uttered words expressive o f ma- lice against the Martins? The witness says, She never did. Now in what manner is this proposed to be redargued? It is proposed to adduce two witnesses to prove, that in their hear- ing, Anne Thomson uttered expressions which imported ma- lice against the Martins. The farthest that such a proof could go, would be to prove, that these two witnesses apprehended the words uttered by Anne Thomson to contain an expres- sion o f malice; but could it be maintained that this would have the effect to redargue the posit ive test im ony o f Anne Thomson herself, who declares, that she never bore ma- lice against the Martins, and never spake maliciously o f them? When there is a discrepancy betwixt a person who speaks, and those who hear, upon the import o f the words spoken, it never was heard of, that the meaning given to words by the hearer was adopted, in opposition to the mean- ing put upon these words by the speaker; and yet this rule must of necessity be adopted, before your Lordships could pay the least regard to any proof which can be brought by the pe- titioners in this case, to redargue the test im on y o f Anne Thom- son; for the utmost that any witnesses could say, is, That they understood certain words uttered by Anne Thomson to im- port expresions of malice from her; in opposition to which, yo ur Lordships would have the test imony o f the witness her- self, deponing, T hat no words uttered by her were spoke w ith any such meaning and intention. That such is the spirit by which your Lordships judge o f the import of words uttered by a person, is obvious from si- milar cases. Vide Dict. Decisions, vol. 2. p. 195. “ In a matter o f fact, where there was penury o f witnesses, it be- ing objected against one of them, after he had deponed, That he was ultroneous in coming to the messenger, and desiring himself to be cited, and so prodiderat testimonium; the Lords considering that this was nuda emissio verborum, the import whereof might be easily mist a k e n; therefore they found it only probable by the witness’s own oath, and “ granted granted diligence to re-examine him.” Fount. 13th July 1700, Goodine contra Murray. The like, where it was objected against a witness, “ That he had declared he would swear best to them who paid him best.” Fountainhall, 17th July 1707, L iv ingston e contra Menzies. Upon this last case, altho’ the objection seems to be found- ed upon words st ron g, and in which there could be little am- biguity, still your Lordships, upon the principles laid down, would not allow any other meaning to be put upon these words, than what the witness himself should think proper to do. And indeed, i f more argument upon this subject were necessary, it might be still further illustrated by the proof, which alone can be admitted to prove a verbal promise, name- ly, the oath o f party, besides a variety o f si milar examples which will readily occur to your Lordships. Another observation upon this point the respondents must beg leave to submit to your Lordships, wherein this witness seems to have ju st ground to complain o f the petitioners con- duct. If they meant a fair expiscation o f the truth, as they now pretend, it would have been no more than just ic e to the witness to have examined her more particularly with regard to this con- versation which she is said to have had with Margaret Oun- st o n and Christ ian Thomson; it would have been fair to have interrogate her particularly, Whether she had ever any con- versation upon this subject with these two persons? and, i f she had peremptorily denied ever her having any conversa- tion at all with them upon the subject, they would at least have had some more, room for suspicion than they can now with ju st ice pretend to have: But, in place o f a fair exami- nation o f this kind, they ask her this general quest ion, Whe- ther she had ever said so and so? And, to redargue this, they would propose to adduce two witnesses to swear, that once in their hearing she had made u se o f certain expressions. I f any such conversation ever happened, or i f this witness ever did emit any expressions o f this kind, it is more than probable, that, i f she had been put in remembrance o f the time, or the occasion occasion, or the persons to whom she is supposed to have said so, the witness might have been able to give a very satisfac- tory meaning to her own words, very different from what the petitioners would now endeavour to put upon some dropping expresions, said to have been transiently emitted by her in prefence o f two particular persons. It is said in the petition, that at least the deposit ion o f Mar- garet Ounsto n ought to remain as part o f the proof, and not to be expunged, because no objection was made to her by the respondents agents or counsel. But this argument will weigh little with your Lordships, when you attend to this circumstance, that, when the wit- ness was f irst adduced, the respondents agents could not pos- sibly know for what purpose she was adduced, nor what was the tendency o f her examination; but, so soon as her exami- nation was over, and the purport thereof discovered, an ob- jection was immediately entered upon the part o f the respon- dents, agains t her oath being admitted as part of the proof, and against receiving any other witnesses, for the same pur- pose o f reprobating the test imony o f preceeding ones, in so unusual and incompetent a manner. The petitioners however insisted not only upon her deposition, but insisted to go on in the same improper manner, and actually did ob- tain the examination o f the other witness Christian Thomson, who, your Lordships will be informed, is niece to one o f the petitioners, and, upon that footing alone, an inhabile wit- ness for them, altho’ the fact was, at the time o f her examina- tion, unknown to the respondents. Upon all these grounds, it is humbly hoped, your Lord- ships will have no difficulty in adhering to that part o f your interlocutor, ordaining the depositions o f Margaret Ounston and Christian Thomson to be expunged. The petitioners, satisfied that your Lordships would not be inclined to alter this part o f your interlocutor, have fur- ther prayed upon this head, that at any rate a reservation may be made to them o f a power to insist in an act ion o f re- probator against Anne Thomson, as accords;which, it is said, the the complainers themselves have admitted was competent for the respondents to do. With regard to any admission o f this kind by the respon- dents, i f any such took place, it cannot possib ly avail the pe- titioners in this demand which they are pleased to make; for, i f an action o f reprobator is to be in sisted in, the respondents are not the party most interested, for Anne Thom son herself m u st be cited in such an action, whom no admission by the respondents can injure. But, i f the petitioners are well found- ed in this action o f reprobator, there is to be sure nothing in the present interlocutor o f your Lordships which can prevent them insist i n g in such an action: But the respondents will be so open as to tell them, that i f they do insi st in such an action, the first st e p in the process will be to condescend upon the re- probatory facts which they intend to prove in that action; and, unless they can say something more than they have yet said against this witness, it is believed your Lordships will save them the trouble o f proceeding further than a conde- scendence. The respondents now proceed to the other part o f your Lordships interlocutor, against which the petitioners have re- claimed: “ You have ordained the deposition o f Mr John Chiesly to be likewise expunged from the proof:” And the petitioners have prayed your Lordships, “ To find that the deposi t io n o f the Reverend Mr Chiesly must also remain and make a part o f the proof, at least to supercede deter- mining whether his deposit ion should be expunged or not, till the whole proof is printed and laid before your Lord- ships.” Uppn this point the petitioners have maintained three pro- positions: 1 mo, That Mr Chiesly has not given partial coun- sel in this cause: 2do, That, on account o f penury o f witnes- ses, Mr Chiesly ought to be admitted, altho’ otherwise an exceptionable w itness in this cause: 3tio, That there is a pe- nury o f w itnesses upon the part o f the petitioners. With regard to the first point, the respondents must be pardoned to think, that, i f Mr Chiesly has not given partial counsel counsel to the respondents in this cause, they are at alosss to know what is meant by that expression in the law o f Scot- land. And, in the first place, your Lordships will be informed, that when the answers were to he made to the respondents complaint respecting the election o f Pittenweem, Mr A lex- ander showed a scroll o f those answers to this Mr Chiesly; and so much was Mr Chiesly in the interest o f the petitioners, and on the footing of g iving them counsel and advice, that he new modelled and corrected those answers; for it having been admitted in these answers, that a bargain had been in- tended with regard to the town o f Pittenweem, but that this intention had been laid aside when it appeared that there was to be a division in the council, Mr Cheisly, upon see- ing the scroll, found fault with the admisio n, and said to Mr Alexander, that he thought he should not have mentioned at all Bailie Martin’s first intention, but left them even to make out that in the way o f proof. This is an anecdote which, it is believed, Mr Chiesly will not not now take upon him to deny: And it is submitted to your Lordships, if a stronger proof can be adduced to show, that, from the very com- mencement of this cause, Mr Chiefly was in the secrets o f the petitioners, and on the footing of giving them partial coun- sel and advice. Such being his conduct at the beginning of the cause, his behaviour in the after progress of it, will appear from his own oath, upon, which the objection was made, however singular the strain of that oath in other respects may be: This w ill best appear to your Lordships from the words themselves: Being interrogate for the con ta in e rs, If, or not, he has given advice to Mr Alexander, or the agent, or any other employed by Mr Alexander in this cause, with regard to conducting the evidence, as to what facts could be pro- ven, 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 o f such and such facts; and that he believed such and s uch witnesses would be proper to to be called in the case to prove or disprove. Being in- terrogate, When he came last to town, and whether since- that time he has suggest e d 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, as he thinks, that as he mentioned, or may have mentioned such and such witnes- ses to prove or disprove sucb and such facts, or repres entations, he may also have hinted at the particular way o f proving or d isproving these; and belivs he may have done so sin c e he came to town, which was on Monday last. Depones, That he did in writing suggest, sin c e he came to town, both facts and the names o f 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 A lex- ander did mention to him, that, i f he knew o f any thing that could be o f service in this affair, he would take it kind and friendly i f he would suggest it. Depones, That sin c e he came to town, he has s uggested objections which he thought might be made agains t s ome of the witnes ithis cause. Depones, That he was not cited till last night, about seven o’clock: That he did not know that he was to be cited, till he came to town; and that he came to town to bring home his wife, who had been left here indisposed. Depones, He has informed Mr Alexandr, that he knew facts that might be material in this caus e, and informed h im so, both by writ 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 Alexan- der by word o f mouth, he desired the deponent might put it in writing, for the sake o f his, Mr A lexander’s, memory. And depones, That he mentioned no facts to Mr Alexan- der, or any other person employed by him, sin c e he was cited.” From this deposi t ion your Lordships will observe the fol- lowing facts clearly estab l ishe d: 1mo That he informed Mr Alexander, or some o f the petitioners friends, o f different facts and representations which he had heard. 2do, That he informed informed him o f the witnesses proper to prove or disprove these facts and representations. 3tio, That he hinted at the particular way o f proving or disproving these facts. 4 to, That he reduced into writing both the facts, and the names o f the witnesses for proving thole facts, which he delivered to Mr Alexander, or at least when Mr Alexander was in the room. 5t0, That Mr Alexander spoke to him upon a kind and friendly footing, to suggest what he knew would be o f service in this affair. 6to, That he accordingly, both by writing and word o f mouth, informed Mr Alexander what facts he thought would be material in the cause, and even facts that he himse lf knew and could swear to. Lastly, That he suggested the objections proper to be made to some o f the witnesses in the cause. All and each o f those particulars are established by Mr Chiesly ’s own oath; and as, in the respondents apprehension, any one o f them amounts to the objection o f partial counsel, in the language o f the law, it would be very surprising i f all o f them, conjoined in one, should not be sufficient to d is- qualify a witness upon the footing o f partial counsel. Upon this branch o f their argument, the petitioners have been pleased to found upon the opinion of Lord Stair, in these words: “ Witnesses become inhabile, by giving partial counsel, as by instigating the plea, telling the party of his inte- rest, and offering to depone in his favour, or being present with him at consultations with lawyers, where it might be shown what was necessary to be proved; but it is no partial coun- sel, though persons be interrogated by parties, what they know of such affairs, generally or particularly, i f the mo- tion arise not from themfelves.” F rom these last words the petitioners seem to infer, that Mr Chiesl y ’s conduct does not fall under the description o f giving partial counsel, because he has neither instigated the plea, nor told the party o f his interest, offering to depone in his favour, nor been present at consultations with lawyers. But i f it were any way necessary for the respondents argu- ment, he could be able, without much criticism, to show that Mr Chiesly does fall within the express terms o f my Lord Stair’s Stair’s opinion. This however is by no means necessa r y; for the petitioners are egregiousl y mistaken, i f they suppose there is no other species o f partial counsel than what is mentioned b y Lord Stair: His Lordship does not mention these particu- lars, as exclusive o f other kinds o f partial counsel, but only mentions them as a very few o f the many examples which fall under that technical expression o f g iv ing partial counsel. And in this view your Lordships will consider the differ- ent particulars proven by Mr Chiesly’s own deposit ion, com- pared with the examples mentioned by Lord Stair. It is said by his Lordship, that a person who has told a party o f his in- terest, or who has been present at consultations with lawyers, where it might be shown what was necessary to be proved, falls under the objection o f partial counsel. W ill it then, af- ter what Mr Chiesly has told in his oath, be maintained, that he has told none o f the parties o f their interest? The reason assigned for excluding persons who have been present at con- sultations with lawyers is, because there they might learn what was necessary to be proved. Is the case o f Mr Chiesly weaker than this, whom there was no necessity to show what was necessary to be proved. He himself is the primum mobile in the cause. He tells what was necessary to be proven for the petitioners, and what witnesses were to prove these facts. He tells what allegations of the respondents it was necessary to disprove, and what witnesses are proper for the purpose; and he further tells what objections were competent against the particular witnesses adduced by the respondents. After all this, it is left with your Lordships to judge, whe- ther Mr Chiesly ’s conduct, falls under the genuine descrip- tion o f partial counsel, or i f his conduct is ascribable to that innocent unbiassed information to which the latter words o f Lord Stair do clearly allude. The second proposition maintained by the petitioners is, that, on account of penury of witnesses, Mr Chiesly ought to be admitted, although otherways an exceptionable witness in this cause. And in support of this proportion, the petition- ers have referred to the authority o f our law-writers, and to some some decisions o f your Lordships, whence it appears that at times witnesses, though not strictly legal, have been admit- ted on account o f a penuria testium. It is not the generality o f this proposit ion which the re- spondents mean to dispute, but the application o f it to the case in hand. It does not appear that our writers upon the law, in matters o f evidence, have on all occasion s properly ad- verted to a dist i n ction, which however has been uniformly at- tended to in practice: It is this, Whether the objection to the witness arises from his own conduct, or i f it arises from other personal qualities and circumstances in which there is no blame on the part o f the witness? In the former case, a pe- nuria testium is not received as an excuse for the admission o f a witness who would otherways be rejected. In the latter case, a penuria testium will be admitted as a reason for admit- ting witnesses otherways inhabile. To illustra te this doct r in e by examples. In the case either o f marriages or domest i c crimes, persons otherways inhabile on account o f alliance and near connection, will be admitted as witnesses, because the privacy with which marriages are usually solemnized, and the secrecy of domest i c crimes, ren- ders it improbable, and in most cafes impossible to have any other w itnesses, except persons who are nearly allied and connected with the parties. But here your Lordships will be pleased to observe, that the exception to the witness arises from considerations and circumstances, in which there oc- curs no blame or misconduct on the part o f the witness; and it is in such cases as those now put, that the excuse o f a pe- nuria testium has at any time been received. As an example of an opposite kind: Put the case o f a per- son who has received a good deed or reward in order to give evidence, or who has given partial counsel to any o f the parties, as in the present case: In those cases, the objection arises from the impropriety o f conduct in the person who is offered as a witness. In the first case, it was equally crimi- nal in the witness, as in the party-adducer, to lay a founda- tion for the objection, that the integrity o f the witness was corrupted corrupted by good deeds, or the promise o f rewards: And in like manner, in the case o f partial counsel, the witness is disqualified by his own act in giving partial counsel, or by the act o f the party-adducer, who thought proper to make u se o f him in a character incompatible with the integrity and the impartiality o f a witness; and accordingly, i f some examples have not escaped the investigations o f the respon- dents, they will venture to say, that in the cases above men- tioned, or in similar cases, a penuria testium has never been admitted as an excuse for the admision o f a witness disqua- l i fied by his own act, or by the act o f the party-adducer. As to the peculiarity mentioned in the end o f Mr C hiesly’s oath, namely, that he gave this partial counsel before he was summoned as a witness; that will no ways avail the petition- ers: For i f that excuse was to be admitted, upon the same rule a party would be intitled to adduce his own agent, or any other person with whom he was most intimately connec- ted, provided he took care to take the whole u se he intended o f him, before he gave him a citation to appear in evidence. It is not the giving partial counsel, o f which the respondents complain: I f Mr Chiesly thinks that an office consistent with his own character, the respondents have no concern in the matter; but they are intitled to take care, that, after he has given that partial counsel, he shall not be adduced as an evidence in their cause, when by his own conduct he has brought himself into a state o f mind which takes of the possibility o f his remaining an unbiassed and impartial wit- ness. The last point insisted upon by the petitioners in this branch o f their argument is, that there is a penury of witnesses on the part o f the petitioners. It will be unnecessary for the respondents to dwell long upon this part o f the petition, because they hope they have already satisfied your Lordships, that altho’ in this case there was that kind o f penury to which the law some times pays re- gard, that still the exception o f partial counsel, which has been offered against Mr Chiesly, was an objection o f that nature which which could not be got over on account of a penuria tes- tium. But the respondents, for the satisfact i o n o f your Lordships, will go a point further, in order to demonstra te to your Lord- ships the absurdity o f that penuria testium, which is resorted to by the petitioners on the present occasion. W hen the law talks o f a penuria testium, it always relates to some positive fact, which either by chance, or from a peculiarity o f circumstan- ces, happen to fall under the observation o f very few persons, as in the case o f a clandestine marriage, or a domestic crime: But it is for no such thing as this that the petitioners have de- sired the testimony o f Mr Chiesly. It is not to a fact, but to a conversation they want to have his evidence, that is, to con- versations which palled betwixt him and Mr Martin or Mr Alexander. Now, your Lordships will be pleased to advert to the curi- osi t y o f this demand; both Mr Martin and Mr Alexander are inhabile witnesses on the part o f the petitioners, and your Lordships will not allow their depositions to be taken, in or- der to tell that the one did not bribe, and that the other was not bribed. But altho’ your Lordships will not allow those persons themselves to tell this, even upon oath, yet the peti- tioners contend, that the deposition of Mr Chiesly should re- main, in order to show what Mr Martin or Mr Alexander have said to him upon this subject, when they were not upon oath. This appears to be the real state o f the case, and your Lordships will judge whether this is that penuria testium which the law, in particular cases, has admitted as an excuse for the adducing of evidence, otherways exceptionable. Nor will it in any degree alter the case, or strengthen the claim o f the petitioners to the deposition o f Mr Chiesl y, al- tho’ another ministe r, or a thousand ministers, may have sworn in the same manner as Mr Chiesl y; for after all it comes to the same thing, namely, What Bailie Martin has said to this or that person. It is not pretended that there is any particu- lar fact which fell under the observation o f Mr Chiesl y, or a- ny other person, as to which there is a penury, but because Mr sMr Beath the minister o f Pittenweem has sworn to one con- versation with Bailie Martin, where the Bailie told him, the town was not bribed; therefore it is demanded that Mr Chies- ly ’s account o f another conversation should stand, where it is said, Bailie Martin said the same thing to him. It is insinuated that Mr Chiesly ’s examination should not be expunged, because the respondents expressed their inten- tion to acquiesc e in the judgment o f Mr R oss the Commision- er, who, notwithstanding the objection, found that Mr Chies- ly ought to be examined: But this is by no means a real state o f the fact. It is extremely true, that the respondents sub- mitted their objection to Mr Ross the Commissioner, but they neither said nor meant to the themselves down, i f they should think proper to demand redress from your Lordships. Upon looking into the proceedings before the Commissioner, the re- spondents can discover no such obligation as is here alledged; and your Lordships will not incline to hamper them, or tye them down to an erroneous judgment by the Commissioner, because some transient expressions may have past at the exami- n a t ion. Neither can the respondents agree to the demand, that your Lordships should grant a reprieve to Mr Chiesly’s deposition till the rest of the proof shall be finished: For, i f this was to be gone into, the petitioners might be allowed, upon the same rule, to examine every one o f their agents in the cause, and indeed every one o f the parties themselves, in order that your Lordships might be able to judge, whether, at the conclusion of the proof, thole agents and parties agreed with or contra- dicted one another. This precedent might be o f less conse- quence i f your Lordships were always sitting, to whom the parties could have ready access; but as this proof must go on in vacation, if other witnesses were as improperly examined as Mr Chiesl y has been, his case would be argued upon as a pre- cedent why such depositions should not be expunged from the proof. The petitioners conclude with intreating your Lordships, that, it you should remain of the opinion o f your interlocutor, you you would, at least for the vindication o f Mr Chiesly' s cha- racter, throw some reason into your interlocutor, because improper constructions might be put upon your Lordships in- terlocutor without doors. As this is a thing in which the respondents have no proper interest, your Lordships will no doubt do in it as to yourselves shall appear most proper. Perhaps, i f your Lordships should view this matter in the same light as the respondents do, you may not be inclined to think that Mr Chiesl y ’s oath deserves that judicial panegyric which the petitioners are pleased to demand for i t: And as to what may be thought without doors, your Lordships are not in use to publish popular interlocutors; and indeed there is the less reason for it in the present cafe, because Mr Cheisl y ’s oath, and the argument o f the parties upon it, is now in print by means o f the present dispute; so that the world has full light and materials to judge for itself. Upon the whole, it is humbly hoped your Lordships will be of opinion of adhering to your interlocutor in both points re- claimed against. In respect whereof, & c. HENRY DUNDAS.