A witness found to be admissible, although, while in the service of the party by whom he was adduced, and before his citation, he had drawn up, at his master's desire, and delivered to him, a statement of all the particulars which he knew respecting the cause.
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Thomas Durham brought an action against Thomas Mair for defamation, in which the latter adduced as a witness, Alexander Wardrop, formerly his clerk, who being examined in initialibus, deposed, “that before he left the defender's service, and long before he received any citation as a witness, he-drew up a paper containing an account of all the facts which he knew with regard to the cause, and likewise of other particulars which did not come within his knowledge, and that he signed the paper at the desire of the defender, and delivered it to him and has not seen it since.”
The writing alluded to having been produced by the defender, it appeared, that although written by the witness, it was not signed by him, as he had erroneously stated.
The pursuer contended, that the circumstances sworn to by the witness rendered him inadmissible.
The Commissaries, “in respect of the testimony of Alexander Wardrop in initialibus, found him disqualified from being a witness in this cause.”
The defender, in a bill of advocation, stated, that the writing had been drawn up by Wardrop, merely in the capacity of his clerk, for the purpose of being sent to his agent in the cause, and that he had no objection to its being destroyed, before the witness was further examined; and
Pleaded: A party must necessarily inquire at those who are to be cited as witnesses, what they know of the facts in the cause; and the circumstance of Wardrop's having afterwards reduced them into writing, especially as it arose from his being then the defender's clerk, cannot render him inadmissible.
Answered: The defender, by giving Wardrop the information necessary for drawing up the paper, has communicated to him the manner in which he is to shape his plea, and how he expects the evidence of this witness to bear on it. But the law is so anxious to prevent this knowledge on the part of witnesses, that it is an undoubted objection, that a witness has heard another examined, whereas Wardrop knows precisely the import of the whole evidence which the defender-means to bring forward, 4th August 1778, Bogle against Yule, No. 201. p. 16777; 10th August 1785, Fall against Sawers, No. 202. p. 16777; Erskine, B. 4, Tit. 4. § 84, 86.
The Lord Ordinary on the bills having, taken the point to report on memorials.
The Lords unanimously repelled the objection.
Lord Ordinary, Craig.For the Pursuer, Williamson.Alt. Robertson.
Fac. Coll. No. 62. p. 142.
