Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Law v. Lundin and Lumsden
Date: 24 June 1747 Case No. No 298a.
Whether after witnesses have deponed, the pursuer may recur to the defender's oath?
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Jean Law, as executrix-dative of David Bayers her husband, brought an action against Lundin of Lundin and Lumsden of Innergelly, for payment of two different accounts, as due to her deceased husband, consisting of dales, timber, iron, &c. furnished; in which there was an act pronounced, finding the libel and accounts therein referred to relevant to be proved prout de jure, and granting diligence.
In consequence of this, the pursuer adduced two witnesses, one on Lundin's account, who knew nothing of the matter, another on Innergelly's, who proved the account, so far as the testimony of one witness could go. And when the act came to be called, in order to a second diligence, the pursuer passed from the proof by witnesses, and offered to refer the verity of the two accounts to the defenders' oaths. But the Ordinary “found they were not bound to depone, seeing the pursuer had undertaken to prove the accounts by witnesses, and had accordingly adduced witnesses thereon;” and, upon a representation having advised with the Lords, “adhered to his former interlocutor.”
Against which the pursuer having reclaimed, the Lords “found that the libel might be referred to the party's oath, notwithstanding the depositions of the witnesses.
The old practice would appear to have been, that wherever the election was made to prove by witnesses, and witnesses were examined, the pursuer could not recur to the party's oath, although the witnesses had proved nothing. By later practice, where the witnesses had proved nothing, the party's oath was still competent. But this is believed to be the first instance wherein the pursuer has been allowed to recur to the party's oath, after a witness has deponed positive, it having hitherto been thought, that, in such case, the pursuer is not to recur to the defender's oath, and that ob metum perjurii; and some of the Lords differed from the judgment now given, on that very ground. At best, the party is exposed to a suspicion of perjury, if, after the deposition of one witness to the verity of the libel, he should depone negative in his own favour, which they thought to be a sufficient reason for adhering to the form hitherto known. And indeed, if the judgment now given is to be followed, it must be admitted, that in all cases, after a pursuer has gone half way in his proof by witnesses, he may recur to the party's oath.
Fol. Dic. v. 4. p. 150. Kilkerran, (Process.) No 8. p. 435.*** D. Falconer reports this case:
Jean Law, Relict and Executrix of David Byres, merchant in Ely, pursued James Lundin of Lundin and Robert Lumsden of Innergelly, for goods furnished to them by her husband, and examined one witness on each accompt, who deponed, viz. James Webster, “That he had oftener than once received for accompt of Lundin, from Mr Byres, deals and trees, and at one time iron, but could not be positive, either with respect to the time, price, or quantity; but that he was in use, after receiving either of any such goods, to give in a note thereof to Lundin's doers, which he believed contained the quantities and prices, and that he kept no copies thereof himself; and which notes were of the hand-writing of David Byres; causa scientiæ, he was sometimes employed as Lundin's wright.” And William Oliphant, wright, deponed, “That Innergelly and he went to Ely to view the deals which the defunct had, as the deponent heard, commissioned for Innergelly: That after they had seen the deals, Mr Byres demanded at the rate of L. 11 per hundred, which Innergelly refused to give, as being too high a price: That he then understood Innergelly was to take none of them; whereupon Mr Byres said that he would refer the price to the deponent, and that Mr Byres was to send them from the Ely to Anstruther by sea: That he was not present at any other bargain or communing betwixt the parties: That he knew the deals were sent by Mr Byres to Anstruther, and there received by Innergelly's servant, who told the deponent that he had numbered them on the shore of Anstruther, as they were put on the wains, and that they then fell short betwixt 30 and 40, or 40 and 50 of the number sent afterwards in a note by Mr Byres to Innergelly. Further deponed, That the quantity Innergelly was to have got, was 300. And further deponed, as to the battons charged in the accompt, he knew Innergelly had received battons at sundry times from Mr Byres, though he did not mind the number or prices, Deponed as to the article of double trees, he knew that Innergelly had got from Byres such trees, though he was not positive as to the time, quantity, or number. And being interrogated on the part of Innergelly, what he remembered was the price of double trees before the commencement of the war with France? Deponed, That he would have bought a quantity of the picked trees for 22d, the piece.”
After leading these witnesses, the pursuer referred the libel to the defenders oaths, and the Lord Ordinary, 23d January 1744 “found the pursuer having adduced witnesses to prove the accompt to Lundin, she could not now recur to his oath.” And 25th, “found that Innergelly was not bound to depone in this cause, seeing the pursuer had undertaken a proof by witnesses and had accordingly adduced a proof thereon, and 25th February, adhered.”
Cited in a reclaiming bill, Voet de jurejurando, par. 4.1. 11. cod h. t. Stair, Tit. Probation by writ.
In the answers, these decisions, 1st July 1574, Earl of Sutherland against the Earl of Caithness, No 231 p. 12123.; 20th January 1575, Glenbervy against Udney, No 232. p. 12123.; 15th June 1622, Lord Roslin against Lord Hatton, No 242. p. 12128.; 26th February 1686, Horn against Strachan, No 281. p. 12146; 29th January 1639, Lady Westmoreland against Lady Home, No 268. p. 12139.
The Lords found that the parties, notwithstanding the examination of one witness against each of them, might yet be obliged to depone.
Act. A. Hamilton.Alt. D. Greme.Clerk, Forbes.
D. Falconer, v. 1. No 193. p. 258.
