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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macleay v. Campbell [1876] ScotLR 13_649 (8 July 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0649.html
Cite as: [1876] SLR 13_649, [1876] ScotLR 13_649
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SCOTTISH_SLR_Court_of_Session
Page: 649↓
Court of Session Inner House First Division.
[
v.
Facts:
The Act 16 and 17 Vict. c. 20, sec. 6, provides that “it shall not be competent to any party who has called and examined the opposite party as a witness, thereafter to refer the cause or any part of it to his oath.”
In a proof a pursuer was examined on his own behalf, and then cross-examined by the defender on the whole merits of the cause. The pursuer got decree, and the defender then moved the Court to sustain a reference of the whole cause to the pursuer's oath.— Held (1) ( dub. Lord Deas, abs. Lord Ardmillan) that the motion was not incompetent under the above Act; but (2) that the Court under the circumstances, in the exercise of its discretion, must refuse it.
The pursuer in this action, Roderick Macleay, draper, Tain, had endorsed a promissory-note, dated 9th November 1872, for £100, which he averred in his condescendence was granted for the accommodation of Campbell & M'Intosh, then drapers in Dingwall, and of Donald Campbell, the defender. Campbell & M'Intosh handed the note in payment to a creditor of theirs, but before it arrived at maturity they stopped payment, and the creditor eventually received dividend on the note only to the amount of £48, 7s. 10d. The pursuer had to pay the balance, amounting to £54, 0s. 6d., for which he now sued the defender as joint promissor.
The defender averred in answer that he never received any value for the note, and that it was originally arranged between the parties that he was to sign “as joint granter with Campbell & M'Intosh, and also as joint surety with the pursuer, who was to be payee and endorser thereof.” The Lord Ordinary flowed the parties a proof of their averments.
The pursuer was examined on his own behalf, and in cross he deponed inter alia as follows:— “The defender was not due me any money at the time I signed the promissory-notes libelled. (Q) Were Campbell & M'Intosh due you £100 at the date of that promissory-note?—(A) I signed it for them and for the defender. (Q) But they were not due you money at that date?—(A) The bill was not given in consideration of a sum due to me; it was signed by me for the accommodation of the promissors. (Q) Was it for the accommodation of the defender that you signed it?
Page: 650↓
—(A) Yes, it was for the accommodation of both obligants.” The Lord Ordinary thereafter pronounced an interlocutor, inter alia “finding it not proved that the promissory-note sued on, granted by the defender and by Campbell & M'Intosh, sometime drapers in Dingwall, for £100, was not, at least to the extent of one-half of the contents, granted for the accommodation of the defender as well as of the said Campbell & Mackintosh: Therefore repels the defences, and decerns the defender to make payment to the pursuer of the sum of £47, 10s., being the amount to which the conclusions of the summons have been restricted by the minute No. 22 of process.”
The defender reclaimed, but the Court adhered.
The defender now moved the Court to sustain a reference to the pursuer's oath.
The pursuer in answer argued—(1) The 6th section of the Evidence Act, 16 and 17 Vict. cap. 20, excluded such a course. (2) The defender had an opportunity of examining the pursuer on oath, and took it. Further, though having ample knowledge, he did not put himself in the box. The course proposed, besides, was not a reasonable one.
Authorities— Kirkpatrick v. Bell, July 20, 1864, 2 Macph. 1396; Pattinson v. Robertson, Dec. 4, 1846, 9 D. 226; Dickson on Evidence, i 1539; Dewar v. Pearson, Feb. 27, 1866, 4 Macph. 493; Swanson v. Gallie, Dec. 3, 1870, 9 Macph. 208; Evidence Act, 16 and 17 Vict. cap. 20, secs. 3 and 5; British Linen Co. v. Thomson, Jan. 15, 1853, 15 D. 314; Reid v. Hope, Jan. 28, 1826, 4 S. 402; Ritchie v. Mackay, 4 S. 534, H. of L., 3 W. and S. 484; Adam v. Maclachlan, Jan. 29, 1847, 9 D. 560.
At advising—
The action is raised upon a promissory-note in which the pursuer is payee, and the defender one of two joint promissors. The pursuer admitted that the promissors were not due him money at the time he signed the promissory-notes, but alleged that he did so for the accommodation of the two promissors, and having been made to pay to the amount of £54, 0s. 6d. he brought an action for relief. In that case, after evidence, the Lord Ordinary found—[ reads from interlocutor as quoted above.] To that interlocutor we adhered.
Now, the judgment both of the Lord Ordinary and of the Court depended upon the import and effect of the evidence led, because the question was truly one of fact, viz., whether the note had been granted at least to the extent of one-half for the accommodation of the defender. The evidence consisted of an examination of the pursuer on his own behalf, and on cross by the defender. Documents were put in by the pursuer and also by the defender, but no witness was called for the defence, and the proof was there-upon declared closed.
Now, the statute of 16 Vict. cap. 20, sec. 3, provided that “it shall be competent to adduce and examine as a witness in any action or proceeding in Scotland any party to such action or proceeding, or the husband or wife of any party, whether he or she shall be individually named in the record or proceeding or not,” under certain exceptions which it is of no consequence to mention here. But this permission is accompanied by a condition which is contained in the 5th section, viz., “The adducing of any party as a witness in any cause or proceeding by the adverse party shall not have the effect of a reference to the oath of the party so adduced: Provided always that it shall not be competent to any party who has called and examined the opposite party as a witness thereafter to refer the cause or any part of it to his oath, and that in all other respects the right of reference to oath shall remain as at present established by the law and practice of Scotland.”
Now, in the present case the pursuer was adduced or called as a witness for himself, and therefore it appears to me that the Section of the statute is not directly applicable. It must be observed that two expressions are made use of in the section; it speaks of “the adducing of any party by the adverse party,” and again, “it shall not be competent to any party who has called and examined the opposite party as a witness thereafter to refer the cause or any part of it to his oath.” The provision of the statute seems to be confined to the case where a party is called or adduced for the opposite party.
Now, here the party was called or adduced as a witness for himself, but that gave the defender an opportunity for examining him in cross, but also as a witness-in-chief, if he so chose, on the whole cause, or on the question of fact involved in the cause. That was, as I have already said, whether the promissory-note sued on was granted in whole or in part for the accommodation of the defender, and unquestionably the pursuer was examined upon that, the only question in the case, distinctly and pointedly by the defender. He is asked whether he gave value for the note, and what were the circumstances under which it was made, and whether it was for the accommodation of one or both of the obligants.
Assuming that the reference does not fall within the statute, the question further is, whether in these circumstances we ought to sustain it? I do not think that it is incompetent, because it is not within the statute, but the matter is left as it was before the statute, and it is in the discretion of the Court to sustain it or not. It appears to me where a party has had an opportunity of examining his adversary upon the whole cause, that a proposal to make a reference to oath, without some explanation of the reasons for it, can mean nothing but a proceeding for the purpose of vexation and annoyance. It cannot be expected that the second examination will be contradictory of the first, and if the purpose be to subject to a more severe test, that is an illegitimate object. It was mere carelessness if the first examination was not strict enough. In short, it appears that unless there are circumstances to justify such a proceeding as this, it is not expedient or proper to subject a witness to an examination twice over, and there having been in this case an opportunity which was not only open, but which was taken advantage of, I am for refusing to sustain the reference to oath.
Page: 651↓
I entirely agree with what I understand to be the opinion of your Lordship in the chair, that the decision of the question before us must depend upon circumstances. There must not only be an opportunity for an examination of the witness to whose oath it is proposed to refer, but the opportunity must have been taken advantage of. These points are in this case clear enough, and questions were put to the witness in cross-examination precisely upon the matter in dispute. There is no doubt that he was examined upon the whole matter of fact at issue, which is now proposed to be made the subject of a reference. It is very difficulty to say he was not “called and examined” in the sense of the statute.
But apart from the construction of the statute, I think these circumstances go very deeply into the question whether this reference is to be allowed or not? It is a matter for the discretion of the Court in a limited sense, whether, if a witness has once been examined rightly, it is not a gross abuse of the law to subject him to a second examination. Supposing this proceeding is not incompetent, it will fall under that category. It is an attempt to evade the provisions of the statute by putting again to the pursuer the precise question which he had formerly answered in cross-examination when in the box as a witness for himself, and as such the proposal is an abuse. If there be any doubt that this is incompetent under the statute, I agree with your Lordship that on other grounds it cannot be allowed.
But apart from that, it has always been a fixed rule that it is within the discretion of the Court to allow a reference or not. I am of opinion that this is a case in which we should not allow it. The defender has availed himself of an opportunity to examine his opponent upon the whole cause, and he has put distinct questions to him upon it. The right of a party to refer a cause depends (as fully explained in the words of Lord Moncrieff, Adam v. Maclachlan, Jan. 29, 1847, 9 D. 576) “on this plain principle of equity, that if the party making allegations of fact necessary for the support of an action or the defence against it, will not himself, when duly required by his opponent judicially, swear to the truth of his averments if within his knowledge, it would be against justice and good conscience to allow him to proceed to take any judgment on the assumption of the truth of such averments.” That is the principle on which the Court has always proceeded in allowing references to oath. In this case the pursuer has judicially deponed to every question put to him upon the facts averred, and on that ground I am of opinion that the Court in the exercise of its discretion should not allow this reference.
The Court refused to sustain the reference to oath.
Counsel for Pursuer— Campbell Smith. Agent— D.Turner, Solicitor-at-law.
Counsel for Defender— Fraser—Strachan. Agents— Macgregor & Ross, S.S.C.