Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1894/32SLR0066.html
Cite as: [1894] SLR 32_66, [1894] ScotLR 32_66

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SCOTTISH_SLR_Court_of_Session

Page: 66↓

Court of Session Inner House First Division.

[Sheriff Court at Peterhead.

Tuesday, November 20. 1894

32 SLR 66

Heslop

v.

Runcie.

Subject_1Process
Subject_2Proof
Subject_3Reference to Oath
Subject_4Cross-examination.
Facts:

Observations by Lord Adam and Lord Kinnear to the effect that in a reference to oath the deponent's counsel is not entitled to cross-examine him, as if he were a witness in a proof prout de jure, but may only suggest questions to the presiding judge to be put to the deponent, for the purpose of throwing light on any matters which the deposition may have left in obscurity.

Headnote:

On 14th April 1894 an action was brought by William Heslop against George Runcie in the Sheriff Court at Peterhead, under the Debts Recovery (Scotland) Act 1867 for payment of the sum of £42, 17s. 8d.

The defender pleaded that he had deposited a sum of £35 with the pursuer, and that this sum fell to be deducted from the sum sued for. He referred the case to the pursuer's oath, and on the construction of the oath the Sheriff-Substitute ( Brown) decerned against the defender as concluded for.

The Sheriff ( Guthrie Smith) having recalled the Sheriff-Substitute's judgment, and given decree for the sum sued for less £35, the pursuer appealed to the Court of Session.

The defender produced in process as his proof the notes of the pursuer's deposition under the reference to oath. From these it appeared that the pursuer had been examined by the defender's agent and by the Court, that he had been cross-examined by his own agent on his own behalf, and that he had subsequently been re-examined by the defender's agent.

At advising—

Judgment:

The Lord President expressed the opinion

Page: 67↓

that the oath was negative of the reference.

Lord Adam—[ After expressing his concurrence with the Lord President as to the result of the pursuer's deposition]—It appears from the so-called “defender's proof” that all through the reference to oath, the pursuer was treated as though he had been called as a witness in an ordinary case. He was examined, cross-examined, and re-examined both by the parties and by the Court. Now, this is quite foreign to my recollection of the practice prevailing in a reference to oath in the Sheriff Court. It is true that for the purpose of clearing up the matter deponed to by the party under oath, his agent may request the judge to ask him certain questions, and the judge may at his discretion ask him such questions, but such licence cannot be extended in the manner in which it has been in the present case.

Lord Kinnear— [After expressing his concurrence with the Lord President as to the result of the pursuer's deposition] — I wish to add that I agree with Lord Adam as to the practice in an examination of a party on a reference to his oath. The deponent's counsel is not entitled to cross-examine him as if he were a witness in a proof prout de jure. He may suggest questions to the judge, who will put them to the deponent if he thinks it right to do so for the purpose of clearing up any matter which the deposition has left in obscurity. But that is all the discretion of the judge.

Lord M'Laren was absent.

The Court sustained the appeal, recalled the interlocutor of the Sheriff, and affirmed the interlocutor of the Sheriff-Substitute.

Counsel:

Counsel for the Pursuer — Salvesen. Agent— A. Morison, S.S.C.

Counsel for the Defender— W. Brown. Agent— Party.
1894

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