Whether a Party can be required to depone a second time upon special Interrogatories?
Husband v. Blair
Date: 30 November 1678 Case No. No 34.
An oath having been taken in general terms, the party was not allowed to be re-examined on special interrogatories.
Special interrogatories ought to be put first; then general.
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In a competition betwixt Blair of Ardblair and Husband, there being two bonds of the same sum granted by Ardblair within some few months of each other, Husband alleged, That both bonds were for one cause, and the one being satisfied, satisfied both, which the Lords would not sustain upon presumption, that the bonds were for one sum, and near one time; and therefore Husband has referred the verity thereof to Ardblair's oath, who deponed negative; and thereafter Husband desired him to be re-examined, What was the cause of these bonds? It was answered, That if that question had been put to him before he deponed generally negative, it had been pertinent, but now it is not competent; for thereby the deponent might be brought to prevaricate and deny the truth, least his oath should clash, or, by confession, acknowledge his Perjury in his first oath; and therefore it was against charity and humanity to ensnare men, by first asking the general interrogatory, and then proponing special ones, though at the same time, much more ex intervallo. It is true, where a party adjects a quality, not being referred to his oath, he cannot thereby exclude the other party form expiscating the truth by special interrogatories; but it is not so when a matter is referred by the party to oath. It was answered, That Ardblair was examined when Husband was not present, and did depone, upon the point in the act referred generally to his oath, that the cause of both bonds was the same. It was replied, That there was here no collusion or clandestine course, but Ardblair came publicly to the Bar and made faith; and, in the afternoon, did depone upon the act as it stood; neither are special interrogatories necessary, though the patty may use them if he please, and therefore not having offered them before the oath was given, in due time, he cannot be heard thereafter.
The Lords found, that, after the party had deponed in general, either upon the act or general interrogatory, he could not thereafter be examined upon any special interrogatory, that it might infer any contradiction to his oath on the general, and did resolve to keep that method in examination, to examine first upon the special interrogatories, if any were, and last upon the general.
Fol. Dic. v. 2. p. 15. Stair, v. 2. p. 651.***Fountainhall reports this case:
This was found relevant to annul a comprising, that they offered to prove, by Ardblair's oath, he had since taken a bond in satisfaction of the sum in the comprising, though the bond bore borrowed money; and he having deponed negative, but not having told what was the cause of the bond, the Lords refused a bill craving a re-examination of him upon that.
