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Where more persons are pursued, super eodem medio, every objection to a witness, which renders him inhabile for any one of the defenders, Tenders him also inhabile for all the rest.
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Where more persons pursue or are pursued super eodem medio concludendi, an objection made to a witness for any one of the defenders is likewise sustained to cast him from being a witness for any of the rest.
And so it was found in the case of William Gray against certain inhabitants of the Town of Rutherglen, whom he pursued for the expense of a process in which they had employed him as agent, and became jointly and severally liable for his payment; and they having alleged certain facts, and among other witnesses for proving thereof, offered to adduce the brother of one of the defenders, who was pleaded to be a habile witness, at least for the other defenders, the Lords refused to admit him.
The same thing was done this Session in another case. In a declarator of astriction of the barony of Tillibole to the Creek-mill, the custom of the barony was libelled as being to pay two lippies for the boll of sheilling, one to the miller, the other to the multurer, which the defenders averred to have been only one lippy for both; the Commissioners for taking the proof having referred to the Lords an objection made for the pursuer to certain witnesses adduced for the defenders, That they were within the prohibited degrees to some of the possessors of the barony, and therefore could not be received as to any of the possessors thereof, the defenders, applied by petition, praying for a direction to the Commissioners to repel the objection to the witnesses, so far as concerned such of the defenders as stood in no relation to the witnesses.
The Lords, on advising this petition, with the answers, “Sustained the objection as to the whole defenders.”
In both cases, the objection was considered as indivisible, and that the defenders might as well adduce one another, as adduce a witness within the forbidden decrees to any of them.
