Petition 1767

February 4. 1767. Unto the Right Honourable the Lords of Council and Session T H E P E T I T I O N O F T H O M A S W R I G H T of 4.176U nt ohe1R Humbly sheweth, THAT in the process o f reduction, brought by the pe­titioner, of the titles o f his uncle John Ure, to the estate of Shirgarton, and for having his own right found and declared in terms of the deed executed by Mr James Ure, on the 18th of March 17 4 3; and in the process af­ terwards brought by the faid John Ure, for reducing and setting aside that deed of settlement, as having been granted on death-bed, your Lordships having been pleased to remit both causes to the Lord Rennet as Ordinary, his Lordship was pleased, of this date, to pronounce the following interlocutor: “ Before answer, allows the faid John Ure, purfuer, a proof of the facts contained in his con- descendence and libelled reasons of reduction; allows the said Thomas Wright, defender, a proof of the facts contained in his answers; allows both parties a conjunct proof on the whole, and of any other facts and circumstances they may judge material; a nd grants commission,” As the various transactions and deeds of settlement which gave occasion to these processes, have, on different occasions, been very lately fully fet forth to your Lordships, the petitioner apprehends it to be unnecessary to trouble you with repeating any account of 5 them them here. In terms of the interlocutor above mentioned, an act and commission was taken out in the end of December 1765, and in the beginning of January thereafter, a great number of witnesses were examined. The day for reporting the commission was the 20th January; and the time for proving being thus extremely short, it was altogether impossible to get adduced every witness whose evidence might be material in this question. Several of the pursuer’s witnesses, and also those of the defender, having failed to appear before the commissioner, many of them were, upon various occasions, brought to town, by a second diligence, to give their depositions in Court. When the proof so adduced shall be brought under your Lordships view, the petitioner hopes you will find, that he has not only proved that Mr James Ure survived the execution of the settlement of the 1 8th of March 1743, at least 60 days, and that at granting it he was in his ordinary health, and had not contracted the disease of which he died; but farther, that there is clear and convincing evidence, that he was not only at both kirk and market, but also executed other important pieces of business, after having executed the deed in question. The witnesses brought by the petitioner for proving these facts, have all of them hitherto been esteemed persons of unsuspected credit and integrity. Feeling the weight of this proof, the pur- suer John Ure, or rather Mary Ure and her husband, have been at uncommon "pains to create objections to some of the witnesses examined, and they, and their asi stants, have taken very extra­ ordinary methods to obtain evidence of these objections, and to induce some of thefe witnesses to retract what they had formerly sworn. In the view of effecting this scheme, a petition was, in March last, presented to your Lordships, in the name of John Ure, in which were thrown out many insinuations against the character and credibility of some of the witnesses who had sworn to their having seen Mr James Ure at kirk and market, after executing the deed in question. He particularly ventured to attack the evi­ dence of John Lockhart of Dunnimerg, Walter Monteath, Andrew Morison, and Duncan Harvey, though no exception had been of­ fered against any of them at the time of their deponing. In this petition Mr,Ure prayed to be allowed to prove the seve- ral objections which he had so late offered against these witnesses; and at the same time to re-examine them. Your Lordships having appointed that petition to be answered, answers were accordingly given given in, containing alfo a petition, on the part of Mr Wright, praying a diligence for calling sundry witnesses, whom he had newly discovered to be material in the cause. As Mr Wright was conscious of no improper conduct, and was fully satisfied that the charge against his witnesses, upon which Mr Ure’s ob­ jections were founded, was altogether destitute of truth, he did not, in his answer, so strongly oppose this demand of Mr Ure, as he humbly apprehends the irregularity of it required. Af­ ter these answers had been given in, Mr Ure took occasion to increase his demands in an additional petition, given in when the former was ju st to be advised, in which he prayed to be allowed some still farther proof; and, upon the whole, your Lordships were pleased, of this date, to pronounce the fo l-. lowing interlocutor: “ The Lords having advised this petition for John Ure, with the answers thereto for Thomas Wright, counter-petition for him, and additional petition for John Ure, and what is above craved, they allow John Ure to prove the objections againft John Lockhart, Duncan Harvey, and An­ drew Morison, and also the objections against George Lock­ hart and Janet Dalgleish; allow the said John Lockhart, Walter Monteath, Duncan Harvey, Andrew Morison, and Alexander Paterson, to be re-examined in causa; allow the respondent Thomas Wright a conjunct probation thereanent; allow Miss Helen Cunninghame, George Lockhart, Janet Dalgleish, and Henry Dow, to be adduced as witnesses in causa for the said Thomas Wright; and allow John Ure a conjunct probation thereanent; and grant diligence, & c ” The pursuer has accordingly examined several witnesses upon facts, from which he pretends to infer a proof of his objection a- gainst John Lockhart, Duncan Harvie, and Andrew Morison. The absurdity and inconsi stency of this evidence adduced by the pursuer might easily be displaved to your Lordships; but the petitioner apprehended, that he could entirely reject these witnesses for the pursuer, and, for that purpose, he protested for reprobators. When, however, he condescended on this evidence to the Lord Or­ dinary on the oaths and witneses, such proof was refused to be received, though, in various instances, the like, and proofs much more incompetent, had been allowed to the pursuer, as in the se­ que s h all be shown.. There were several persons who had been summoned by the petitioner, on the first diligence, as havers and witnesses, and against against whom second diligence had been granted. These were William Wilson of Soonhope, formerly Mr Ure’s agent, James Fogo and William M ‘Ewen two of his present agents, and Doctor Walter Stirling, a witness who had not compeared to be examined on the petitioner’s commission. On the 17th o f December last, the petitioner got one of these gentlemen, Mr Wilson, to appear before the Lord Ordinary, and give his oath in presence o f Mr Ure’s agents; but as his examination was chiefly with a view to the exhibition of writings, he desired leave to have time to look through his papers, and his examination was accordingly delayed till next day. That very day, however, Mr Ure’s agents thought proper to put up their act, in order to insi st for circumduction, and with a view, as it would appear, to disappoint the exhibition expedited both from themselves and Mr Wilson, and the evidence of Mr Wil­ son, they urged the circumduction with great keenness, and accordingly, on the 18th, obtained it. The petitioner there­ fore, on that very day, applied to your Lordships by a petition, praying the circumduction might be recalled, and that he might be allowed to bring evidence to disprove the facts which tended to discredit the testimony of the witnesses adduced for him. And, in the second place, he prayed your Lordships would al­ low him to bring some further evidence, in order to confirm and support the proof which he had already brought, and to recover some writings of considerable consequence in the present question, which he had only very lately discovered. Your Lordships having appointed this petition to be answered, answers were accordingly given in, and the pursuer’s procurators, before advising, having admitted the age of certain of the petition­ er’s witnesses to be as he had set forth, and having also agreed to the examination of Melf. Wilfon, Fogo, and M' Ewan, as havers only, your Lordships were pleased, of this date, to pronounce the following interlocutor: “ The Lords ha­ ving advised the foresaid petition, with the answers thereto, and what is above set forth, find there is no necessity of grant­ ing any farther proof as to the ages of the said Walter Mon- teath, Janet Douglas, and George Lockhart; refuse to recall the circumduction, but allow the three persons above named, called on the first diligence in the cause to be examined as havers; and grant warrant for letters of incident diligence, at the instance of the said Thomas Wright the petitioner, against George Moir of of Leckie, or his agent in Edinburgh, as havers, for recovering any writings in their custody, which the petitioner may think material in the cause, to the 1 0 h day of February next; al­ low the petitioner to prove such facts as tend to show that Mr Turnbull preached at Kippen on the second Sunday of April 1743, or to show that there was sermon there that day; and allow the respondent a conjunct probation, if he thinks fit to Use it; and, for that effect grant warrant for letters of incident diligence, at either parties instance, to the said 10th day of February next; and ordain the petitioner, before extract, to give in a condescendence of the witnesses by whom he proposes to prove that fac t and refuse the desire of the petition as to all other points."-The petitioner must humbly beg leave to lay his case again be­ fore your Lordships; and must pray for an alteration of your interlocutor, in fo far as it has refused the demantis made in his,- r * • ^ former petition. He shall, in the place, state the particular demands which he muff Hill beg leave to make, and endeavour to show the propriety of granting them. And he shall, in the next place, attempt to obviate the different objections which have been urged against him. The pursuer, Mr Ure, has, no doubt, a very manifest interest to destroy, if posible, the testimony of those witnesses whose cha- racter and credibility he has been pleased to attack. John Lock­ hart and Walter Monteath have sworn very pointedly to their ha­ ving seen Mr James Ure attending divine service at the church of Kippen on the second Sunday of April 1743. Andrew Morison and Duncan Harvey have sworn very positively to their having seen Mr James Ure in the town of Kippen, upon a market-day, common­ ly called the Gowk-Fair, which was held in the month of April 1743. When the whole proof shall be brought under your Lord- ships view, you will find, that the testimony of these witnesses is con­ firmed and supported by other evidence: But the pursuer seems to ap­ prehend it very material for him to set aside the evidence of the four witnesses above mentioned; and he has accordingly spared no pains whatever to create objections against them. He was first pleased to attack the evidence of John Lockhart; and alledged, that he had been going up and down the country fishing for evidence, and presin g people to recollect themselves, and swear as to Mr Ure’s being at kirk and fair in April 1743.. He He condescended upon two particular instances of this, which he has attempted to prove. I. He alledgcd, “ That, in harvest 17 Lockhart came to Robert Anderson change-keeper at Hole of Boquhan, and car­ ried him from the field, where he was at work, to his (Anderson’s) house, and after calling for a dram, desired to know, if he remem- bered to have seen Mr James Ure at his house, in April 1743, at a meeting there with the Lairds of Leckie and Broich? To.which Anderson answered, That he could not remember any such meeting. Upon this, Lockhart replied, that he was sure of the fact, and insi sted that he could not but remember it, and An­ derson turning angry, they thereupon parted.” In order to prove this fact against John Lockhart, Robert An­ derson has been examined; and from his deposition, which is as follows, your Lordships will judge how far the objection is proved. Depones, That the last year, about the beginning of harvest John Lockhart came to the field where the deponent was s ear­ ing; and being obliged to loose the shearers for rain, they two went together to the deponent’s house, where he asked the depo­ nent, whether he remembered of a meeting, held at his father’s house by Leckie, Shirgarton, and Broich? and the deponent ha­ ving answered, he remembered nothing of it, Mr Lockhart said he was of age at that time, and might remember it. The depo­ nent answered, that his father and mother were then alive, and possibly he might be from home; at leas t he did not remember it. Depones, That the field where the deponent was shearing was on the road between John Lockhart’s house and his daugh­ ter’s house, and John Lockhart sometimes visits her, and stays some days; but he did not tell the deponent of any intention to pay such visi t at that time; only said, when the rain came on, that he would go with the deponent to his house, which was going back from the field where they were shearing. De­ pones, That the deponent met with John Leckie that day, and gave him account of the above conversation. That Robert Christa l in Dib of Shirgarton having, some time after, come into the deponent's house, and taken a dram, as he was passing by, asked the deponent anent the conversation he had had with Mr Lockhart; of which he gave him an account.” Even if the fact had appeared, upon proof, to have been as a- bove stated by the pursuer, the petitioner apprehends it could not amount amount to any objection against the evidence of Lockhart. But your Lordships will observe how very differently it appears from the evidence of Anderson himself. The whole matter appears to have been, that Lockhart, one day chancing to pass through a field where Anderson was shearing, was obliged, upon account of rain coming on, to go with him to his house; where accidental­ ly, in converfation,he afked him, if he remembered a meeting at his houfe between Mr James Ure and the Lairds of Leckie and Broich, in April 1743?, II. The pursuer, in his petition, has in the second place, been plea- fed to alledge, “ That Lockhart we nt afterwards to one Janet Turnbull, residenter at Kippen, and told her, if she would be of service to Mr Wright, and swear as to feeing Mr Ure at the kirk, or the Gowk-Fair, in 1743, she should be handsomely re­ warded. To this she answered, she knew nothing about these things. Lockhart then pressed her to recollect herself, and it should not be for nothing. Upon this he went off: but he af­ terwards came back to the said Janet Turnbull and insisted that she should go with him to Mrs Wright, the defender’s wife, who would reward her handsomely, in case she swore what she was desired.”. In order to prove this fact, the pursuer has examined three witnesses, Janet Turnbull, Mary Leckie her daughter, and the said Robert Christal. Their depositions have been already laid before your Lordships, and are now again subjoined to this petition. It would be no difficult matter to show, how inconsistent they are in themselves, how contradictory to each other, and how perfectly ridiculous and absurd. Rae and Morison, they say, were extreme­ ly anxious to get Janet Turnbull to conceal what had passed be­ tween her and Lockhart; and, at the same time. Rae and Mori­ son appear to have been kept altogether ignorant what that was they desired to be so concealed.. It must surely appear most ridi­ culous, the story of bringing in this man. (Christal) hiding him between a stone of only a foot and a half high, and that too with­ in two feet of the place where Rae and Morison were standing, and making him there lie upon the cold earth for two hours, up­ on his belly, merely to listen to this idle conversation. And be- sides, the fact is altogether false; as it can be clearly proved, that he broke open the door, and forcibly came into the house. It would be endless, and the petitioner apprehends it to be unnecessary at pre- sent, to enter into any farther detail of the inconsistencies and ab- surdity of these witnesses. As As. however, from these witnesses, the pursuer would infer a proof of his objection against John Lockhart, and would by that means endeavour to discredit his testimony, the petititioner ap­ prehends it to be material for him, not only in support of his own proof, but also in vindication of the characte r of that witness, to pray your Lordships to allow him to disprove, by clear evidence, every one of the fact s in the depositions of these three witnesses, tending to discredit the testimony of John Lockhart. He offers to prove, not only by Rae and Morison, but likewise by other witnesses, that when Janet Turnbull was asked, if John Lockhart had ever pressed her to give evidence for Mr Wright? she thereupon held up both her hands, and declared, "That itwas all cursed lies; for that 'John Lockhart had never desired her to give evidence one way or other; and that he never promised her any reward. In the next place, your Lordships will observe, that Janet Turn- bull has deponed, “ That she was in Lockhart’s house the day be­ fore the proof was taken at Kippen, in relation to this process, in winter la ft; and that he atked her, if Ihe remembered the time of Shirgarton’s death? and that he could tell her the day and the month; and if lhe would declare it, that Madam Wright would give her a reward, or lie would cause her to do it, though he had nothing of his own to give her; and the de­ ponent faid, lhe did not remember it, and would declare no­ thing but what she knew; and he desired the deponent to go to Madam Wright’s house, and take her dinner, which she declin­ ed.” And towards the close of her oath she swears, “ That Duncan Harvey’s wife came to her house since the proof was taken at Kippen, and told her, that John Lockhart was at her door, and desired to speak to her, but she did not go.” The petitioner must however observe, that he can clearly prove, that Janet Turnbull was neither in Lockhart’s house at the time she said she saw him there, nor for several days thereafter; and that the day she truly was there, Lockhart was confined to his bed the whole time she continued in his house; and that she went away without having seen him, and saw only his wife and his son James; and he can also prove, that it is an absolute falsehood that ever Duncan Harvey’s wife desired Janet Turnbull to speak to John Lockhart, or that ever John Lockhart desired Harvey’s wife to do so. I f the petitioner shall be able to prove these fact s, he humbly apprehends, that they will fully support the veracity of John Lock­ hart, which the pursuer has ventured to attack. The pursuer has been been pleased to sneer at the anxiety which the petitioner, in behalf o f this aged man, has discovered for vindicating his character from these aspersions. The petitioner, however, cannot help thinking it cruel, that this old man, should, after a long life spent without blame or reproach, thus have his character traduced by witnesses of the most infamous and abandoned characters. The petitioner must beg leave, with the greatest submission, to maintain, that the pursuer’s demand being allowed to examine witnesses, in order to reprobate the testimony of Lockhart, was incompetent and improper. When Lockhart had been examined as a witness, no objections whatever had been offered against him by the pursuer, and no reprobators were protested for. It is ap­ prehended. if, in the course of leading a proof, any witness shall swear falsely upon any of the matters that are gone to proof, that then, no doubt the parties are intitled to discredit the testimony of the witness, by disproving what is said relating to the subject-matter of the proof itself. But to bring witnesses merely to prove that another witness has sworn falsely, but not with regard to any one thing upon which the parties have gone to proof, the petitioner is advised your Lordships have not been in use to allow, in an in­ cidental manner. That must be done, he humbly apprehends, either by an action of reprobator, if the falsehood is in initialibus or by a common action on the head of perjury, if in substantialibus, of the oath. For these reasons, it is apprehended, that the demand of Mr Ure was improper. But since your Lordships were pleased to al­ low him that proof, the petitioner humbly conceives, that he may be allowed to support the veracity of his own witness, by proving that these facts, to which the pursuer’s witnesses have sworn, are entirely false; and that Janet Turnbull had no conversation with John Lockhart, as she had pretended. If it had been alledged, that at a particular place, and at a particular time, a bribe had been given to Lockhart, it is apprehended, that the petitioner might have been allowed to prove, that neither Lockhart himself, nor the person said to have bribed him, were at that place at the time condescended on. In the same manner, it is conceived, that he may be allowed to prove, that, at the time he is said to have given partial counsel, he neither was at the place condescended on, nor with the persons to whom he is said to have given it. And your Lordships will be pleased to perceive, that the petitioner does not propose to prove, that these witnesses have sworn falsely with re­ gard to one or two circumstances, which have no connection with the the points with regard to which the parties had gone to proof, and from thence to infer, that no part of their testimony can be regard­ ed; but means entirely to disprove their evidence, concerning circum- stances of considerable importance in the present dispute. The petitioner has thus endeavoured to satisfy your Lordships of the propriety of his present demand; and he must further ob- serve, that, by your interlocutor of the 20th of June last, allow­ ing him a conjunct probation with the pursuer as to these parti­ culars, he apprehends he was expressly allowed the proof which he now seeks He shall therefore now proceed to explain to your Lordships the particular accidents, by which he was prevented from bringing this proof at that time, and which makes the pre­ sent application to your Lordships necessary. Your Lordships will please be informed, that the petitioner might have brought evidence sufficient to have rejected altogether Janet Turnbull and her daughter as witnesses in this cause. He had, however, the most entire confidence in the unblemished cha­ racter of John Lockhart. He disregarded all the falsehoods invent­ ed against him by the pursuer, and did not believe, that even Ja- net Turnbull, the most abandoned and infamous woman in the country where she resides, would dare to attack a character so pure and blameless. Besides the petitioner had been at pains to inquire; and as he had discovered that these witnesses, Turnbull and Leckie, had, in the presence of persons of unsuspected credit, persisted, on eve­ ry occasion, to clear John Lockhart of any the least improper con­ duct, it was for that reason, till about the time they were brought to town, thought unnecessary to be at the expence, either of re­ covering writings, or of bringing witnesses to prove his objections against them. In the mean time Janet Turnbull, conscious of the infamy of her own character, and of the objections which might be just ly made to her evidence, employed herself very busily in picking up, in different corners, thefe writings which might in­ validate her testimony. And when the petitioner came to disco- ver, that she was actually to be brought as a witness, to discredit the testimony of Lockhart, he found that she had been before-hand with him; and that she had already herself got possessio n of a va­ riety of writings, by which she might have been rendered intes- table. This he was reduced to the necessity of even offering to prove by Janet Turnbull’s own oath, at her examination; but such questions he was not allowed to put to her, as being deemed in­ competent. By By these means the petitioner was prevented from being able to reject this witness altogether; and he shall now explain why he did not formerly bring evidence to disprove the facts sworn to by her, her daughter, and Christal. In the first place, it will be observed, That the only fact conde­ scended on against Lockhart, which was to be proved by Janet Turnbull, was that mentioned in the first part of her deposition a- bove quoted. And it will farther be remarked, that although Ja ­ net Turnbull swears to that fact’s having happened the day before the proof was taken at Kippen, that is, on Sunday the 5th of January 17 6 6; yet from the manner in which it was stated by the pursuer, when condescended on in his petition, of the 7th of March last, it appeared to have happened in harvest 1765. Your Lordships will therefore perceive, that as the particular day or time on which this fact was alledged to have happened was not condescended on, he could not possibly be prepared to bring evidence to contradict it. In the next place, With respect to the idle story of the conversa- tion between Janet Turnbull, and Rae, and Morison, the petition­ er must observe, that he trusted to disproving them by the evidence of Rae and Morifon themselves, who were cited by the pursuer. The pursuer however did not think proper to bring Morison to town, though he had cited him; and when Rae was brought to town, he was called to be examined, and was difmissed again be­ fore the examination of Janet Turnbull; by which means it be­ came impossible for the petitioner to examine him, in contradic­ tion to Janet Turnbull, upon the facts mentioned in her oath. Besides attacking the evidence of John Lockhart, the pursuer has thought proper to attack the evidence of Walter Monteath, Andrew Morison, and Duncan Harvey. It was alledged, that Walter Monteath had since retraded what he had formerly sworn; and that no part of his evidence could be regarded, as at the period at which these facts happened to which he swore, it appears that he was only a boy of thirteen. Although however the pursuer prayed to be allowed to re-examine this wit­ ness, yet he has never thought proper to do so; and as the objec­ tion to his age has likewise been fully removed, it will serve as a specimen of the solid objections which the pursuer has been pleased to create against the petitioner’s witnesses in this cause. With respect to Duncan Harvey, the pursuer has ventured to al~ ledge, that he was in needy circumstances, and, at the time of his his examination, under the terror of diligence, taken out against him at the petitioner’s instance for debt. Your Lordships will however observe, that the only evidence which the pursuer has brought o f this assertion is, that Harvey was once charged with horning at the instance of the petitioner, several months before the present action was brought. But to remove every the least doubt with regard to this matter, the petitioner can prove, that Harvey is a man of good credit, who, besides his farm, deals extensively in trade, and had actually paid and got a discharge of the debt due by him to the petitioner, some months before the commencement of the present process. With respect to the evidence of Andrew Morison, the pursuer has thought proper to complain of his re-examination at Stir­ ling, and to insinuate, that he was then prevailed upon to recol­ lect a very material fac t of which he had remembered nothing when formerly examined. The petitioner must, however, inform your Lordships, that the question put to this witness at his re-exami­ nation, was truly proposed to the commissioner at his first exa­ mination; but the commissioner delayed putting it till he should have finished another point, concerning which he was then in­ terrogating the witness; and thereafter, in the hurry of disputes between the parties, it chanced to be altogether forgot, and was not put to the witness at that time. The petitioner, however, hopes that your Lordships will allow him to adduce the commnis- sioner as a witness, who most assuredly Would not have admitted the re-examination of Morison, if he had not been sufficiently sa- tisfied of the fact now alledged: And with respect to any ob- jection arisin g to the testimony of this witness, from the evidence of Janet Turnbull, Leckie, and Christal, it is hoped that this will be fully removed, if your Lordships shall be pleased to allow the proof offered to be brought to disprove the facts sworn to by these three witnesses. The petitioner must, in the next place, beg leave to observe, that he has laboured under very great disadvantages in adducing the proof upon his part. T he corner of the country where the witnesses resided, he found occupied by the pursuer and his friends, who had exerted all their influence, and had spared no pains whate­ ver to disappoint, if possible, the petitioner’s bringing any proof in support of the deed now in question. To explain the arts which the pursuer has used to this purpose, the petitioner apprehended to be of some consequence to his cause; and he therefore conde- scended scended upon two particular instances, which he offered to prove. The first was with respect to one John Smith a dike-builder, whom the pursuer had condescended upon as a person by whom he would prove Duncan Harvey’s being threatened with imprisonment at the petitioner’s instance. Your Lordships will be informed, that it can be proved that Mr Glasford, whom the petitioner has shown to be most materially interested in the event of this cause, brought this poor man, Smith, to Edinburgh, from a distant part of Stir- ling-shire; and after he had brought him to town, offered him some money if he would swear to this fact. Mr Glasford, how­ ever, finding his honesty incorruptible, dismissed him with abu- sive language, and allowed him only four shillings for his expence and travelling-charges; a sum very far inferior to that with which he tempted him to swear to the alledgeance he had made. The second fact condescended on was, the attempt made by Mr Glasford, together with his two friends Mr George Harvey preacher of the gospel, and the late Mr Gray mini- ster of Strathblane, to prevail upon Walter Monteath, one of the petitioner’s witnesses, to retract what he had formerly sworn. The particulars of this attempt he stated very minutely in his former petition; and, to save your Lordships time, he shall not now trouble you with repeating them. The first of these facts he can only prove, indeed, by the oath of John Smith himself; but the pursuer cannot surely object to that evidence, as he was one of the witnesses condescended on by him, in his additional petition of the 1 1 th of June last. The second instance above mentioned, the petitioner can prove by the oath of Mr George Harvey himself, and likewise by the present schoolmaster at Strathblane, the mistress of the house in which they were, Walter Monteath, and others. With respect to the proving this last particular condescended on, and with respect to the examining the Commision er con­ cerning the re-examination of Andrew Morison at Stirling, the pursuer has himself admitted, that if it were not for the delay, he would willingly consent to it. As, however, your Lordships have already allowed a farther proof in this cause, and as the proof now demanded can be carried on at the same time, without occasioning any longer delay, the objection of the pursuer is by that means removed, and he hopes your Lordships will therefore allow it. Were Were the proof the pursuer has attempted to bring, and been allowed to examine witnesses upon, displayed to your Lordships in all its particulars, his objections to the proof now desired by the petitioner would appear with a bad grace. The petitioner shall on­ ly give one instance, which occurred on the commission. James Ure, a witness adduced by the petitioner, having clearly deponed, that Mr James Ure, after granting the deed in question, had stone to a considerable distance from his house, and there executed a very difficult piece of business, the pursuer next day summoned William Galbraith of Blackhouse, as a witness to reprobate or discredit what James Ure had sworn. This witness, Mr Galbraith, the Commision er accordingly received for that purpose, and a copy of his deposition is hereto annexed; by which your Lordships will perceive, that what James Ure’s oath was attempted to be reprobated by, were some words he was said to have uttered in a public company, on the evening of the day on which he had deponed. How f ar from truth the alledgeance was, appears from Mr Galbraith’s oath: But whatever be in this, i f the pursuer has, in the course of this proof, been in fact allowed such uncommon liberties in proving every trifle he was pleased to say he thought material, it will not appear very equal to confine the petitioner in this proof, before answer, to the bounds of the s t r i c t relevancy. The petitioner comes now to the last particular with which he shall trouble your Lordships. He cited as a witness in this cause, Margaret Graham, who, at the time of Mr James Ure's death, and for some time before, had been servant in the house of Clerk Leckie in Kippen, in which house Mr Graem ofBuchliv,nd other witnesses, have deposed, they had seen Mr Ure very lately before his death. When this woman was brought before the Commis­ sioner in order to be examined, objections were offered, by the pur- suer against her being received as a witness. The Commissioner referred to your Lordships to determine whether the witness ought to be received or not., The petitioner was advised to bring the witness to town, upon a second diligence and accordingly, at the end of last session, the witness having been brought before the Lord Ju stice-Clerk as Or­ dinary on the oaths and witnesses, and the merits of the objec­ tion and answers having been fully stated to his Lordship, he was pleased to sign ify, according to the petitioners apprehension, that there seemed to be nothing in the objection: But his Lordship having doubted if, as Lord Ordinary, he could determine the question, he suggested, that the witness could not be received without a petition to your Lordships. Upon the Lord Ordinary’s reporting the same to the Court, your Lordships were pleased to give the same opinion, and seemed to think a petition necelfary. The objections offered against this witness are two. In the first place, That she was a woman of bad fame, and had been banish- ed the county of Stirling for theft; and, in the s econd place, That the petitioner. Mr Wright, had passed from her as a witness. In answer to these two objections, the petitioner must beg leave to observe, that the pursuer, though he has alledged her to be a woman of bad fame, has not produced any evidence of his alle­ gation; and that as, in fact, the woman’s character is quite the reverse, s o unless he should produce the decreet of a court convict­ ing her of theft, his objection cannot be sustained. In the next place, with respect to his having passed from her as a witness, the petitioner must observe, That he meant no more than to delay her examination till an after-diet, at which he could attend, and he never judicially passed from her examination. He humbly hopes there­ fore that your Lordships will be pleased to admit her as a witness. Upon the whole, the petitioner has thus stated to your Lord- ships the several particulars, with regard to which he prays to be allowed a proof. He has, with the greatest submission, endea­ voured to show, that the reprobatory proof demanded by the pursuer was perhaps incompetent; and that at least since your Lordships were pleased to allow that proof to the pursuer, the de­ fender should be intitled to redargue it, by confirming and sup- porting the veracity of his own witnesses. He has shown by what various accidents he was prevented from formerly bringing that proof, and by what means therefore this application to your Lordships has now become necessary. He has farther shown the very great disadvantages under which he has been obliged to labour in bringing a proof, to fun- port the deed now under reduction; and he has shown the impro­ per and extraordinary arts which have been employed by the pursuer in order to disappoint him. The pursuer complains of the delay that any new proof would occasio n; but surely the pursuer has no reason to complain of this. It is manifestly the interest of the petitioner to avoid every the least delay, and to bring this question to a final determina­ tion, tion with all possible expedition. It is, on the contrary, the inte- rest; of the pursuer, who is in the possession of the estate, to retard this process by every means in his power. But farther it will be observed, that the first delay in this cause was occasioned by the pursuer himself, in applying for that reprobatory proof, which has been the cause of all the after-delays since that time. The pursuer thought it material to discredit the evidence of some of the petitioner’s witnesses, and your Lordships were pleased to al­ low him to do fo. It is therefore humbly apprehended, that the petitioner ought likewise to be allowed to disprove these facts tending to discredit the testimony of his witnesses. May it therefore please your Lordships, to alter your interlocutor of the 22d o f January las t and to allow the petitioner, 1mo, To disprove the facts thrown out in the evidence of Janet Turnbull, Mary Leckie, and Robert Christal, so fa r as the same tend to dis credit the evidence of the witnesses adduced f or the petitioner 2do, To allow the three pers ons referred to in the oaths of Janet Turnbull, Mary Leckie, and Robert Christ a l, to be examined upon what truly happened in relation to the matters therein con­ tained: 3tio, To prove such as tend to support the evi­ dence of Andrew Morison, Duncan Harvey, and Walter Monteath, and to disprove the objections thereto: 4to, To prove the conduct of Mr G lasford, as above s et fo rth, re- specting John Smith and Walter Monteith; and lastly to allow the said Margaret Graham to be examined, and to grant diligence for thes e purposes. According to ju stice, &c. R O B E R T C U L L E N. D E PO- D E P O S I T I O N S referred to in the foregoing i 6 7 h 7 h g e f July 8. 1766. COmpeared TH E P I ON F EMN A A in Kippen: Against whom the defender protested for reprobators, in respect the witness had said, that she would do all in her power to hurt the defender, and this she said since she was condescended upon as a witness in this process, and for other reasons; who being solemnly sworn, purged of malice and partial counsel, depones, That she was in John Lockhart’s house the day before the proof was taken at Kip­ pen, in relation to this process, in winter las t and that he asked her, If she remembered the time of Shirgarton’s death? and that he could tell her the day and the month; and, if she would de­ clare it, that Madam Wright would give her a reward, or he would cause her to do it, though he had nothing of his own to give her; and the deponent faid, fhe did not remember it, and would declare nothing but what fhe knew; and he dcfired the deponent to go to Madam Wright’s houfe and take her dinner, which file declined: She believes Mr Lockhart is a relation of Mr Wright’s, but does not know how near it is. Depones, That on a Friday’s night in spring, Andrew Morison maltman at Kippen, and John Rae wright there, came into her houfe, and afked her, if John Lockhart had been with her? which fhe told he had; and they defired her not to tell this to any mortal; and John Rae swore, if he had a half-penny, he would divide it with her: That Robert Christal called the deponent to the door, and des ired her to let him in to hear what passed, which she accordingly did, and he sat at their backs and heard them; but they did not see him, for the candles had been put out at their desire, and there was a stone of 1 1/2 foot high between them; but there was not a yard’s distance between them; and John Rae pressed her much to drink, and spoke unfavourably of Mr Ure and Mr Glasford; and said, it did not become them to have that land, or words to that purpose: Upon which Robert Christa l rose up, which surpri- sed them; and he asked them what they had to say against Mr Ure or Mr Glasford; and Andrew Morison wrung his hands, and said, he was never so affronted by any earthly man; and he came back back next day, and desired her not to tell this to any man. De­ pones, That Duncan Harvey's wife came to her house since the proof was taken at Kippen, and told her that John Lockhart was at her door, and desired to speak to her, but Ihe did not go; and]ohn Lockhart never was in her house. Depones, That her daugh­ ter was present in her house all the time the was in company with the persons above mentioned: That at the above meeting of Rae and Morison, Morison came in first, and sought a dram, and be­ fore it was drunken out, Rae came in after. And this is the truth, tec. Compeared S H FW R P G i n P t daughter to Janet Turnbull in Kippen, a preceding witness, aged 22 years, a witness adduced for the pursuer, who being solemnly sworn, purged, examined, and interrogate, depones, That some time in spring last some time after nightfall, Andrew Morison maltman in Kippen, and John Rae wright there, came into the deponent’s mother’s house in Kippen, and called for a dram, and gave a glass to her mother, and desired her to drink the health of Thomas Wright defender, Mr Glasford, and Mr Leckie, which she readily did, declaring, That she wished them all very well: That Rae asked her what Laird Lockhart had said unto her, in a conversation that had pas- sed between them some time before? That her mother answered, That she would tell this when she was brought before a judge; but gave them no account of that conversation: That Rae there­ upon desired her not to tell what had passed betwixt Mr Lockhart and her on that occasion: That when Morison and Rae first came into the house, Robert Christal, farmer upon the estate of Shir- garton, son to James Christa l in Dibb, was there, but immediately went out; and, in a little time, came back privately unto the house, the deponent’s mother having opened another door unto him: That when Morison and Rae were pressing her mother to drink, Christa l spoke up and said, That if his Master, John Ure the pursuer, was owing them any money, he was ready to pay it: That Rae thereupon said to the deponent’s mother, That if he had a halfpenny, he would give her a farthing, if she would prosecute Christa l for coming into her house, and hearing their conversa­ tion. Depones, That the same night, Morison and Rae had been talking something or other about "Walter Monteath at Strathbane: That Rae thereafter told the deponent that he had been talking to Andrew Morison about some of them being at the said Mr Mon­ teath, teath, the deponent means fome of their party talking about this plea; and that he was sorry he had said fo at that time; because Christal had overheard them, and he was afraid he would be cal­ led to account before the Lords for it: That when Christa l spoke up as above, Morison and Rae were saying, That they hoped Mr Wright would win this plea; and, upon this occasion, Morison and Rae seemed to be much surprised, and Rae said to Christa l, That he had not seen him for the smoke; and Christal answered, That he had seen Rae; and Morison said, That he would rather than L. 10 that he, Morison, had been 20 miles off upon that oc­ casion. Depones, That some days afterwards, Rae quarrelled the deponent for having repeated the above conversation, and asked her, if she had ever told Christal? which she said she had not; and he desired her to fay no more about i t; and if fhe had told no­ thing about it, he, or M r Wright, would have been a better friend to her than Christal or Glasford either: That when the reckoning came to be paid, Morison desired Rae to pay it, faying, hat, before 24 hours expired, he would engage he would get money from Mr Wright, as much as would pay the reckoning; but he did not fay on what account; and that she has heard, that Rae was in use to work to Mr Wright. Depones, That, while Morison and Rae were engaged in the above conversation with her mother, Rae de­ sired the deponent to put out the candle, which she did; after which there was nothing but a glimmering fire. Depones, That after she had heard the conversation above sworn to, and after Christal had spoke up as above, she went out, and returned soon thereafter; and, upon her coming in, there being little light, s he run her head by accident against her mothers nose, and made it bleed. That, upon this occasion, her mother was angry, and thought at first, that Robert Christa l had done it, who, at that time, was coming again into the house; but the deponent told her, that it was her: That Christal was within two yards or so of Morison, Rae, and her mother, when the above conversation past. Depones, That, at the time the above conversation past, Morison, Lae, and her mother, were sitting about the fire, and the deponent was with them serving them with drink, so that they knew very well she was there. Depones, That there was a stone, about two foot high, at the back of the fire, behind which Christa l was, at the time of the above conversation; and that he was opposite to the faces of Morison, Rae, and her mother; and that the stone is not not high enough to hide any person: That the deponent suspected Christa l was in the house; because her mother went twice to the door, as she thought the door opened. Depones, That, when Rae came first in, he told the deponent he wanted to hire her for the peat- moss, and engaged her accordingly; but the deponent never heard any more of it; and that this was a long time before the calling of the peats. Causa scientiae patet, &c. For Mr Ure there was next adduced Robert Christal, son to James Christal tenant in Dibb: Against whom it was objected for the defender, That he is an agent for Dr Glasford in this cause: ' That he is a creditor of the doctor’s: That he has declared, that he would do all in his power, and would spend his last penny, in order that the doctor should win the cause. By being an agent, Mr Wright means, that he has endeavoured to procure evidence in favours of Doctor Glasford in this question; particularly that, besides what appears from the former depositions, he went to Glas- gow, and applied to John Ure upholsterer there, to be a witness for Dr Glasford. The Commissioner having advised with Lord Pitfour, al­ lows the defender to prove, That Robert Christal had gone to G lasgow, and endeavoured to persuade John Ure to be a witness for the pursuer; but refuses to allow a proof of the other objections. Thereafter the defender having brought no witnesses to prove the above objection, though required to do so by the agent for the pursuer, The said h eMPF I p r F n o I H A t aged 35 years, who being so- lemnlv sworn, purged of partial counsel, examined, and interro­ gate, depones, the defender having first protested for reprobators, That he never made any inquiries with regard to the character of James Ure late in Broomhill, a witness in this cause; neither did he inquire at Robert Anderson at Holl of Boquhan, a former wit­ ness, what had past betwixt him and John Lockhart of Dinni- morg, relative to this affair; nor did he talk any thing with John Yooll at Brunton-burn about this plea. Depones, That on the night of the 14th of March last, after it was dark, the deponent wa$ was in the house of Janet Turnbull, a former witness, when An­ drew Morison came in: That the deponent thereupon went out» and a little thereafter Janet Turnbull came out, being sent for spirits; when the deponent desired her to take care of herself, be- cause he heard it reported, that Andrew Morison and John Rae intended to fill her drunk; and the reason why it was reported that they had this intention was, that they might get out of her what had passed betwixt Laird Lockhart and her, with regard to this affair: That, upon this occasion, Janet Turnbull desired the deponent to come into the house, and said she would let him in at the back-door privately, which she accordingly did. Depones, That when he came into the house, the candle was extinguished, which had been burning before Morison came in, as above; and when the deponent came to the back-door, he heard Andrew Mo­ rison desire Janet Turnbull to put out the candle: That there was a fire, but which gave very little light; and the deponent lay down behind a stone at the back of the fire, which concealed him from the people of the house, and this stone was within a yard and a half, or two yards of them. Depones, That he heard Mori­ son inquire at Janet Turnbull what had passed betwixt Laird Lock­ hart and her about this affair, and she refused to tell him, but said she would tell when she came before a judge: That Rae then said, that he had seen a printed paper at the house of Mr Wright, the defender, which alledged that Mr Lockhart had been talking with her about being a witness for Mr Wright; and they asked her, to whom she had told this conversation, and suspected that she had told it to the deponent, and he to Doctor Glasford; but she denied that she ever had told this to the deponent or to Doctor Glasford, and said, That when she was called before a judge, she would tell to whom she had spoke of it. Depones, That when Janet Turnbull and her daughter was out of the house, he over­ heard Rae fay to Morison, That when Walter Monteath in Strath- blane, came to Kippen to be examined, he had met with Duncan Christa l in Badluskan, a tenant upon Mr Wright’s estate: That Christa l told Monteath, that he must not swear about a foy that had been held in a public-house in Kippen, that Mr Ure, the maker of the deed, was there, because the contrary could be proved by a letter which he said was in the deponent’s father’s hands; but that he must swear, that he saw Mr Ure in the kirk of Kippen, the second Sunday Sunday of April immediately before his death: That Rae said, that he himself was the fittest person in Kippen to be sent to Janet Turnbull, to get out of her what had passed betwixt her and Laird Lockhart, relative to this affair, or to persuade her to deny, that any thing had passed about i t: That he did not hear either of them say, that any person had sent them there: That he does not know, if Rae was working to Mr Wright at that time; but he heard Rae fay to Morison, he had been at Mr Wright’s house that day; and that if he would go with him the next day, he would read to him the printed paper that came out of Edin­ burgh about Janet Turnbull; and that he heard them fay, while she was out of the house, that they would fill her drunk. De­ pones. That they also said, that the deponent had been along with Dr Glasford, for eight days, at G lasgow and Strathblane, seeing what James Ure and Walter Monteath, both formerly exa­ mined, could fay in this affair; and that they had been tamper­ ing with them, but had lost their pains; and that this was after these witnesses had been examined: That they had spread a re­ port, after they came home, that Monteath had contradicted what he had formerly sworn, which Rae said was without foun­ dation: That Janet Turnbull soon thereafter returned to the house, and the deponent got up from behind the stone, and asked them, How they came to speak ill of Dr Glasford and him behind their backs? That J anet Turnbull expressed her surprise at seeing the deponent, and asked him, What had brought him there? and got up to put him out of the house, which accordingly she did: That the place where Janet Turnbull lived, had been a barn and a byre, but turned into a house. Depones, That he had no con— versation with Janet Turnbull about this plea since the examina­ tion in January last; but he heard that she had told, in the depo­ nent’s father’s house, what had passed betwixt her and. Laird Lockhart. And being interrogate, I f the caution, he gave Janet Turnbull against being filled drunk was out of regard to Mr Glas- ford’s cause? depones negative; but because it was unseemly for any woman to get drunk. Depones, That Dr Glasford owes the deponent about L. 30; and that he is not in the least fear about losing the money. Depones, That he lay behind the stone, as a- bove, near two hours, before he discovered himself. And being interrogated, What he meant by lying so long behind the stone? depones, depones, That it was out of curiosity. Depones, That he went with Dr Glasford to Glasgow, and returned by Strathblane, but he did not see Walter Monteath; and that he told Dr Glasford what had passed in Janet Turnbull’s house, as above, next day. Causa scientiae patet &c. c n A A n H s f H A M F H n I r of Blackhouse, married, and aged 40 years and upwards, being solemnly sworn, examined and in­ terrogate on oath, and purged of partial counsel; and being in­ terrogate by the pursuer, If or not he was in company with James Ure at Pollockshaws last night, in the house of Duncan Morison in Kippen, after Ure had emitted his deposition, and in what manner he expressed himself thereon? depones, That he, the deponent, told him, he had sworn his chief’s estate away, or words to that purpose; to which James Ure answered, That if he had done so, he could not help it, for he behoved to tell the truth upon oath. And being farther interrogate, if or not James Ure reflected that he had been overcharged by Mr Glasford in an accompt? depones. He knows no such thing. Causa scientiae patet,& c.