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Scottish Court of Session Decisions >>
Neilson v Sir Thomas Kennedy. [1709] Mor 16730 (17 December 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor3816730-141.html Cite as:
[1709] Mor 16730
Women receiveable as witnesses, ubi penuria testium
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Gilbert Neilson of Craigcaffie and Sir Thomas Kennedy being in mutual processes anent the right of these lands, it was contended for Craigcaffie, that the night of his father's burial, Sir Thomas thrust him and his wife violently out of his house, and then intromitted with the writs and charter chest, and so might abstract and destroy discharges that would have extinguished Sir Thomas's debts he claims on that estate. And this being admitted before answer to probation, Craigcaffie adduces sundry women to be witnesses for proving his violent expulsion; against whom it it was objected, They were inhabile by law to extinguish debts and civil rights, however they might be allowed to prove a riot; and he can never pretend to have been dispossessed, seeing he was never in possession of that house, in regard his father having given him off a part of his estate, he had riotously mispent the same, which made the father dispone the rest of his estate to his second son; and esto he had been thrust out of the house, and Sir Thomas, with other friends, had inspected the writ; where lies the presumption, that therefore he abstracted the instructions of his own payments? But the truth was, they were sealed up. Answered, The circumstances are such as require expiscation by all sorts of witnesses; for beating and violence is libelled to have been done under cloud of night, and at his father's door and close; who could see this but the domestic servants then about the house? And by the witnesses already adduced, it is proved, that one of Sir Thomas Kennedy's sons stood at the door with a drawn sword, and pulled off Craigcaffie's wig when he offered to return. The Lords finding it was in re domestica, and under night, and to prove acts of violence, they allowed the women witnesses to be received.
