Innes v Innes

Subject_ Proof—Res Noviter.— 1. Circumstances in which, after a record had been closed, and proof circumduced, the Court refused to open up the circumduction, and allow evidence to be adduced to impeach the veracity of a witness against whom no reprobators had been protested for. Question, (1.) Whether collateral matter formed the subject of a reprobatory proof; (2.) Whether alleged reprobative matter was truly res noviter veniens. 2. And, (3.) Whether it is competent to adduce reprobative matter against a witness without having protested for reprobators.

* This point was taken up and disposed of incidentally, before deciding on the main cause itself. It is separately reported, so as to avoid embarrassing the questions contained in the cause with this detail.

That the matter was not properly res noviter, the decree of the commissaries being public judicial procedure, and the pursuers themselves having had means, by due diligence, to enquire into the real status of the witness. 1 Her mother and two other relations had been examined by the pursuers, who might therefore have made enquiry of them. As they failed to do this, and, after several months elapsed, circumduction was pronounced, upon mutual minutes consenting to close the proof, it was incompetent to open up the circumduction now.

But there is another ground which influences me also. This is altogether a collateral matter, and I doubt how far any enquiry into it would affect the disposal of the cause, or ought to be allowed.

Loan Gillies .—I am against allowing the proposed investigation. I rest my opinion on this, that though the facts were proved, they are not important; and, at this stage, I am not for permitting such proof. The only result would be, to hold _________________ Footnote _________________