Scottish Court of Session Decisions

Subject_1Divorce
Subject_2Evidence
Subject_3Question inferring Criminality
Subject_4Right of Witness to decline to answer.
Facts:

In an action of divorce the pursuer obtained a commission to examine a party resident abroad, with whom the defender was alleged to have committed adultery. The allegation of adultery was founded upon an action of affiliation raised at the instance of the witness proposed to be examined against the present defender some time previous. The defender moved the Court to instruct the commissioner to warn proposed witness that she was not bound to answer the question as to having had sexual intercourse with defender, adultery being a crime in law. The pursuer resisted the motion, on the ground that the witness, having by her own act made public the fact of her intercourse with the defender, was not entitled to the protection of the Court. Held that the Judge Ordinary must append to his commission the instruction craved by the defender; and further, if witness elected to answer, and did so in the negative, then questions might be put founded on her deposition in the affiliation case, with a view to testing her credibility.