Scottish Court of Session Decisions

Subject_1 WITNESS.

Lord Balmerino
v.
Lady Couper

Date: 19 January 1670
Case No. No. 70.

An officer of a Baron court, although without fee or pension, found inadmissible as a witness.

A tenant holding by tacit relocation inadmissible.

Click here to view a pdf copy of this documet : PDF Copy

In the reduction pursued at Balmerino's instance of the disposition of the estate of Couper, made to the Lady ex capili lecti, both parties being suffered to lead witnesses that their depositions might lie in retentis, there were objections made against two witnesses adduced by the Lady, viz. That one of them was the officer to the regality court, who had a standing fee or place, but was removeable at pleasure. This was found relevant to debar him from being a witness, albeit it was alleged that he was no domestic servant, nor had any pension or fee paid by the Lady, but had his livelihood from the parties that employed him. The second objection was, that one Nairn of Tullifergus could not be witness, because he was a tacksman to the Lady per tacitam relocationem only, his tack being expired the last Whitsunday, and so was removeable. It was answered, that the said Nairn was a heritor and proprietor of lands belonging to himself, which were not holden of the Lord Couper, and so could not be suspect as witnesses whose estate and possession depend upon their master's pleasure. The Lords, notwithstanding, found the objection relevant to cast the witness.

Gosford MS. p. 93.