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Scottish Court of Session Decisions >>
James Wright v John Din. [1737] Mor 12119 (5 January 1737)
URL: http://www.bailii.org/scot/cases/ScotCS/1737/Mor2812119-224.html Cite as:
[1737] Mor 12119
The Lords repelled reprobator, because nut particularly protested for at the examination of the witness.
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In this process, a proof having been allowed to both parties, the pursuer, in the beginning of the examination, protested for reprobators against the defender's witnesses; after which, Elizabeth Neilson, spouse to James Elder, was examined as a witness for the defender; against whom Wright objected, That, in May 1727, she had been put in the Town-guard for keeping a bawdy-house; from whence she was liberated, upon enacting herself to depart the city, never to return, under the pain of the Correction-house; notwithstanding whereof she had returned, and continued the infamous practice of bawdy procuring.
Answered for Din; The objection was neither competent nor relevant. As to the first, it was pleaded to be a rule in law, That whatever falls under reprobator is not competent, where there are contestes; it being only given where the witness is likely to stand single, as in the initials of the oath, or the causa scientiæ: Thus Lord Stair says expressly, B. 4. T.43. p. 717. and in several other places, That the testimonies of the reprobators may not be contra dicta testium, where there are contestes. Now, in the present question, another witness has concurred with Elizabeth Neilson; neither can every objection, which was not proponed before the witness was sworn, be hooked in under the head of reprobators, only because they were protested for in the beginning; 2dly, It is not relevant; because, although infamy is a good objection by our law, yet none are reckoned such but those who are convicted criminis infammantis. Now, the enactment referred to is no conviction, but a transaction which would not infammate, since it was done with the intervention of the Magistrate. But, granting the objection were true, which is denied, still it is not relevant, seeing it is not of the same kind with false swearing; for a woman may be supposed lewd, or a promoter thereof in others, and yet scruple at swearing a false oath.
The Lords repelled the objection, in respect no particular reprobator was protested for, but only reprobator against the witnesses in general.
