Scottish Court of Session Decisions

Lord President—I am sorry that I cannot agree with the judgment of the learned Sheriffs. I can only repeat the observations which I made in Dawson v. Mackenzie, 1908 S.C. 648, to the effect that while in these cases one may always reach a conclusion contrary to the fact, because the true facts are only known to two persons, yet none the less the Court has a duty to protect innocent people, and must be sure not to be moved by sympathy to depart from the rules by which evidence must be judged. Now it has been held again and again that where there is the pursuer's oath against the defender's, the mere proof of opportunity does not amount to corroboration of the pursuer's story. Is there here any corroboration of a positive character, as, for instance, evidence of the parties being surprised in suspicious circumstances, of familiarities between them, or of their doing suspicious things? There is none. The sole point of corroboration relied on by the Sheriffs is of a negative character—a supposed contradiction of the defender's evidence by the pursuer and her master, the farmer Rust. I have nothing more to add to what I said in Dawson v. M'Kenzie as to the scope of this doctrine of corroboration by contradiction, but, as I do not wish to quote myself, I will quote a sentence of Lord M'Laren's opinion in that case—“There must be corroboration of the pursuer's evidence; yet when the effect of the defender's false evidence, i.e., his denial of circumstances which are otherwise proved, is to show that there is something of which he is ashamed, or something the admission of which he conceived would throw suspicion upon himself, this will put a different complexion on what the Court might otherwise be disposed to regard as innocent intimacy between the parties.” The only contradiction of the defender here is not regarding a circumstance that would have thrown suspicion on him. The defender says he never was in the byre alone with the pursuer without the protecting ægis of his brother-in-law. The evidence of Rust the farmer is that there were occasions when he and not the brother-in-law was the third person. The circumstances were just as innocent if the third party was the farmer as if the third party were the brother-in-law—the point is that the defender was not solus cum sola. Both parties may have been speaking in good faith; certainly the brother-in-law may often have been there, as he was cotman on the farm, and it may have slipped the memory of the defender that on some occasions his brother-in-law had gone out and left the farmer. What matter? The contradiction at worst sheds no reflecting light on whether the opportunity was a suspicious opportunity or not. I hold that the pursuer has failed to prove her case.

Some remarks have been made in the course of the case on the fact that the pursuer put in the defender as her first witness, and certainly the practice of putting in the defender as first witness accentuates the necessity that the contradiction relied on must be of a material fact. If the defender's evidence is to be contradicted at a later stage by the pursuer's witnesses, and that contradiction is to be founded on as throwing suspicion on him, he must be given good warning that serious importance is attached to the evidence in question. Our attention was called to a supposed conflict between M'Arthur v. M'Queen, June 27, 1901, 3 F. 1010, in the First Division, and Darroch v. Kerr, December 21, 1901, 4 F. 396, in the Second Division. I should not have thought it necessary to hold that the latter judgment was inconsistent with the former. It was not laid down in M'Arthur v. M'Queen that there was any incompetency in a pursuer calling the defender as his first witness, but there were comments made by several judges as to the propriety of so doing. I agree with the First Division in disapproving of the practice, a disapprobation which also has been expressed in the House of Lords. As to the former practice, before parties were competent witnesses, of ordaining the defender to undergo judicial examination, to which Lord Trayner refers in Darroch v. Kerr, that has nothing to do with the present practice. Therefore I hope it will go forth that the practice of the pursuer calling the defender as her first witness, although it may be defensible in exceptional circumstances, has not the approval of this Court. If it is done, the position must be carefully

Page: 85↓