Scottish Court of Session Decisions

Subject_1 PART I.

WITNESS.

Andrew Macdowall
v.
John Kelly

Date: 15 November 1800
Case No. No. 1.

In an action upon a letter of guarantee, where the defence was, that it had been forged by the principal debtors, his sister and acknowledged natural son were admitted as witness for the pursuer to prove its authenticity.

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John Gordon, at purchasing some cattle from Andrew Macdowall, delivered to him a letter, bearing to be subscribed by John Kelly, guaranteeing the price.

Macdowell having brought an action for payment against Gordon and Kelly, before the Stewart of Kirkcudbright, decree in absence was obtained against the former; but Kelly contended, that the letter was a forgery; and a proof having been allowed, the pursuer proposed to adduce the sister and acknowledged natural son of John Gordon to prove that it was genuine.

The admissibility of both having been objected to by Kelly, the Steward repelled the objection to the son, and reserved consideration of the objection to the sister till she should be adduced.

An advocation having been passed, the Lord Ordinary remitted the cause simpliciter to the Stewart, “in respect the interest of John Gordon is not in question, either in a civil view, seeing decree has already gone against him as principal debtor, and it is of no consequence to him, whatever it may be to the respondent (Macdowall) that the representer (Kelly) should be found, liable as cautioner or guarantee; nor in a criminal view, seeing no criminal action has been brought against him; and found, that even lawful relations standing witness the prohibited degrees to Gordon, are competent witnesses in in this case.”

In a petition, Kelly

Pleaded: Gordan has evidently a material interest in the cause, as the result of it, if against him, will destroy his character, and perhaps have the way for a criminal prosecution. There is, therefore, the same room for apprehension patiality of the witnesses in his favours as if they had been adduced by himself. The objection against the admissibility of his sister is therefore clear; and although, in a legal view, a natural son is to be held to be filius nullius, there may be the same reason, from his feelings of natural affection, to apprehend; unfair testimony, and the same metus perjurii, as in the case of lawful offspring, Ersk. B. 4. Tit. 2. § 24.

Observed on the Bench: The decision of the House of Lords in the case of Hay Marshall has put an end to the objection of metus perjurii, and the objection of relation does not apply to the present case, where the witnesses are not related to either of the parties, but to a third person. (No. 212. p. 16787.)

The Lords, by a narrow majority, refused the petition without answers.

Lord Ordinary, Hermand. For the Petitioner, Thomson. Clerk, Menzies. Fac. Coll. No. 194. p. 447.