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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dewar v. Pearson and Jackson [1866] ScotLR 1_192 (27 February 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0192.html Cite as: [1866] SLR 1_192, [1866] ScotLR 1_192 |
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Page: 192↓
Held that where defenders were examined by a pursuer as witnesses on one branch of a case, another branch of it was afterwards competently referred to their oath, notwithstanding the terms of section 5 of 16 Vict., cap. 20.
This was an action by a clerk for payment of a sum of £445, 5s. 8d. in name of salary or wages due to him from 1852 to 1860. The defenders pleaded prescription. The Sheriff sustained this plea in so far as regarded the period anterior to June 1858, and found that this part of the claim could only be proved by writ or oath. In regard to the other portion the pursuer was allowed a proof pro ut de jure. In the course of the proof pro ut de jure the defenders were examined as witnesses. The pursuer thereafter referred the constitution and resting-owing of the claim sued for prior to June 1858 to the oath of the defenders. Under this reference the defenders were examined, and the Sheriff held the oaths affirmative.
Mr Pearson advocated and pleaded that the reference to oath was incompetent. He founded on 16 Vict., cap. 20, sec. 5, which provides that “it shall not be competent to any party who has called and examined the opposite party as a witness, thereafter to refer the cause, or any part of it, to his oath:” and founded on the case of Renny v. Will, July 18, 1863 (not reported, but mentioned in Dickson on Evidence, second edition, note to section 1711).
The Court refused to give effect to this plea, and remitted to the Sheriff simpliciter.
The Lord President thought the object of the statute was to prevent a person being subjected to a reexamination in regard to the same matter; and that it provides that one cannot refer to a person's oath what he has been previously examined about as a witness in the case. The prohibition may even extend to anything which he might competently have been examined about when he was in the witness-box. But what was referred here was a matter as to which the defenders were not and could not be examined as witnesses.
Counsel for Advocator— Mr Gordon and Mr Scott. Agent— Mr David Crawford, S.S.C.
Counsel for Respondent— Mr Patton and Mr Thoms. Agent— Mr W. Officer, S.S.C.
