Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WITNESS - OBJECTION OF RELATIONSHIP - AGENCY.
Subject_3 Action for the Penalties of Usury in Scotland is not limited by Act 31st Elizabeth.

Mrs Margaret Porterfield
v.
Houston Stewart Nicholson, Esq

Date: 21 June 1771

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[Faculty Collection, 160; Dictionary, 16,770.]

Monboddo. Modern practice has so much relaxed the severity of objections to witnesses, that I am not sure how the law now stands. Lady Maxwell naturally took a share in the inquiry as to this affair: she ought not to have been called as a witness, both on account of relation, which is a good objection when there is no penury, and also on account of her acting as agent. She acted as an agent, and even improperly in that character, for she took down in writing what the witnesses said, and read it over to them, and asked them if they could stand to it. This was equal to a precognition, and was in a manner tying down the witnesses to adhere upon oath to their declarations.

Gardenston. Lady Maxwell was no agent; she only reported what she had heard or knew.

Barjarg. There is no penuria testium. The objection on account of acting as an agent is strong.

President. Many witnesses may have been examined in this cause; but there is an exceeding penuria testium as to the only fact wherein Lady Maxwell's evidence is desired.

Kaimes. I would reserve the question as to Lady Maxwell's oath to the end of the cause, so that the question may be tried without it, and then we may see whether there is any occasion for it.

Justice-Clerk. The objection, on account of relation, is generally good; but cases occur where necessity must get the better of the objection. From the number of witnesses, no proof arises that there is not a penuria as to a particular fact. Many of the witnesses may know nothing of this crime, in its own nature most occult. The examination sought, is now restricted to a fact, which, if not proved by Lady Maxwell, cannot be proved at all. As to her having been an agent, perhaps there were improprieties in her conduct, but not enough to set her aside altogether.

President. The objection of relation is nothing, because the fact sought to be proved by her depends altogether upon her testimony. Proditio testimonii nothing, because she spoke of it to the defender's father. As to the objection of Agent, it is the only material one. It was natural for Lady Maxwell to be intrusted in the inquiry concerning a fact said to have happened under her own roof. The inquiry commenced in presence of the defender's aunt. There lies no objection to her taking down, in writing, what the witnesses said, and reading it to them. This was necessary, in order to come at the truth: interest reipublicæ ne crimina maneant impunita.

Pitfour. The objection flies off when the examination is restricted to the fact, already mentioned in Miss Henderson's oath.

On the 21st June 1771, “the Lords allowed Lady Maxwell to be examined as to the fact, in Miss Henderson's oath, reserving all exceptions to her credibility; and remitted with this instruction to the commissaries.”

Act. A. Lockhart, Advocate. Alt. J. Swinton, H. Dundas. Reporter, Kennet.

Diss. Stonefield, Monboddo.

Non liquet, Kaimes.