Scottish Court of Session Decisions

Subject_1 WITNESS.

Alexander Irvine
v.
Alexander Ramsay-Irvine

Date: 22 November 1751
Case No. No. 187.

A witness having expressed resentment, and beingpurged, and no cause of ill-will shown, reprobator was not sustained.

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Alexander Irvine of Saphock, by contract of marriage betwixt Alexander Ramsay, afterwards called Irvine, and Mary his daughter, disponed his estate to the said Alexander and his heirs-male; which failing, his heirs and assigns whatsoever.

Saphock died, and afterwards his daughter without children, whereupon Alexander Irvine, son of John Irvine writer in the Chancery office, to whom the estate had been destined by a former deed, raised a reduction of the disposition; insisting on Saphock's incapacity at the time of executing it; and adduced his relict as a witness: To whom it was objected, That she had on many occasions declared her malice and ill-will to the defender, wishing and praying that he might lose his cause; and uttered the most horrid imprecations against him, without any cause whatever: And this is offered to be instantly proved, by many witnesses who are presently in this place. These are the words in which the objection was made by the defender's agent, though not marked in the minute; as neither was the interlocutor repelling it; and so the witness was admitted; the defender protesting for reprobators.

The Lady purged herself of malice against the defender, adding this expression, “God forgive him.”

The defender prayed to be allowed to prove capital enmity, in order to reprobate; and condescended that the Lady had expressed the most inveterate malice against him; that once she laid her hand on his head, and prayed the curse of God might fall upon him, and that he or his might never thrive: That hearing Mr. Ramsay and his Lady were going to live at an house belonging to them, she went there, having declared she intended to burn it; and, on her return, said she had prayed her curses round the house: That she refused to see her daughther, on Mr. Ramsay's account; and, on her death, often affirmed that he had killed her; and prayed that the curse of God might come upon all his name: That she still persisted in saying he had killed her daughter; and that she has instigated the process, signified her wishes that he might lose the cause, and her intention to promote the pursuer's interest.

The Lords 5th July 1751, before answer, allowed the petitioner to prove the facts set forth in the petition and condescendence.

Pleaded in a reclaiming bill: The nature of reprobators is to set aside a witness wholly, by reason of his being perjured: It is not making such an exception to the credibility of his evidence, as admits it to be taken into consideration, and the objection weighed against it: Such lesser objections are not allowed to be proved by parole evidence; because that would be an endless affair. The objection made that the witness having purged herself of malice, added a wish that God would forgive the defender, is not of a nature to reprobate her testimony, as it does not imply she had malice; though it may be made use of in weighing the credibility of it, as no doubt it imported she had been dissatisfied with him; as neither do the alleged imprecations: Malice is a disposition of the mind, and can only be known by the person who harbours it, but cannot be certainly gathered from passionate expressions, or rash curses, as hasty people will utter these, and in a little time entertain less ill-will than often lurks under a calmer appearance: That she instigated the process is not a reprobator; since she has not deponed the contrary in the initials of her testimony, against which reprobators lie, but only that she has not been instructed: It might have been objected to receiving her, That she had given partial counsel; but that not having been done, the objection cannot be now made: And indeed the whole condescendence is incompetent, being no more than was objected before examination and repelled.

Answered, Reprobators are competent after a witness has been examined; for as no term is allowed to prove objections to a witness, the objector, if his witnesses are not ready, has no remedy but to protest for reprobators; and on account of this defect, the witness behoved to be examined in this case: There is no minute made on the objection, nor interlocutor repelling it; and the condescendence is more particular than it was then made: They lie not only against the initials, but against the matter of the testimony, if the witness is single: The reprobator offered is against the initials, shewing the witness had malice; and though that is a disposition of the mind, it is to be collected from the outward behaviour; and the condescendence clearly imports it: There is offered to be proved a continued course of horrid imprecations, a perseverance in affirming the defender had killed her daughter; and the addition made to the initials of her testimony, was giving a vent to that rancour she entertained; not a charitable prayer.

The Lords repelled the reprobator.

Act. Lockhart Alt. W. Grant. Clerk, Murray. D. Falconer, v. 2. p. 284.