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In this case the following point arose: A witness objected to on the head of agency, partial counsel and interest being examined thereon in initialibus, deponed negative. The objectors then offered to prove their objections by the books of the witness, which the witness declined to produce unless ordered by the Court; and it was maintained by the party adducing him, that as the objection could not be instantly verified, the examination must proceed; but the other party declined to go on without the books. The Commissioner then took down the principal examination on a paper apart.
The Lord Ordinary pronounced an interlocutor, granting diligence for the recovery of the books, in order that the Commissioner might make the necessary extracts.
It was argued, in support of the reclaiming note, that the only way of disqualifying a witness in an initial examination, is to produce instant proof, or else to protest for reprobator; and that if this was neglected, no subsequent offer to impeach the witness after his examination in causa had taken place, could be allowed; Glass, 15th May 1819, F. C.; Tait , 398 and 420; Stair , iv. 43. 11.
The Court accordingly pronounced a judgment recalling, hoc statu, the interlocutor of the Lord Ordinary; and remitting to the Commissioner to renew the examination, and to order the production of the books.
Lord Ordinary, Cockburn. Act. Paterson. Alt. Mackenzie. John Cullen, W. S. and W. B. Campbell, W. S. Agents. S. Clerk.
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