Scottish Court of Session Decisions

Subject_1 PART I.

WITNESS.

Mary Macgregor
v.
Malcolm Macgregor

Date: 11 July 1801
Case No. No. 3.

Objection of partial counsel sustained.

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In a declarator of marriage brought by Mary Macgregor against Malcolm Macgregor, the pursuer proposed John Macfarlane, her cousin-german, as a witness in her favour, and particularly as to an alleged bedding between the parties, where one other person only was present.

The defender objected to Macfarlane's admissibility, that he had given partial counsel in favour of the pursuer.

From a proof of the objection, and Macfarlane's deposition in initialibus, it appeared that he had introduced the pursuer to her law-agent, had been present at the first consultation between them, and had otherwise taken an interest in her favour.

The Commissaries sustained the objection.

A bill of advocation having been presented the Lord Odinary, at desire of parties reported the case on memorials.

The defender held the objection to be completely relevant, and proved, Stair, B. 4. Tit, 43. § 9; Erskine, B. 4. Tit. 2. § 25; 21st January 1797, Bell against King, No. 210. p. 16786; and various other cases, voce Witness.

The pursuer disputed the import of the proof, and contended, that the witness should be admitted cum nota, particularly as there was penuria testium as to the facts expected to be established by his evidence; 19th December 1786, Scott against Caverhill, No. 204. p. 16779.

The Court, without hesitation, supported the judgment of the Commissaries.

Lord Ordinary, Meadowbank. Act. Connell. Alt. Ar. Campbell. Fac. Coll. No. 247. p. 561.