Scottish Court of Session Decisions

Rose or Rosie M'Naughton raised an action of aliment, in the Sheriff Court, against William Glass, farmer, as the father of her natural child, and as he was assoilzied, she brought an advocation. The Court “found there is a semiplena probatio; allowed the oath in supplement to be received; and remitted to the Lord Ordinary to proceed accordingly, reserving all questions of expenses.” The Lord Ordinary remitted to a commissioner “to take the oath of the pursuer in supplement, in terms of the interlocutor of the Court.” The advocator, with her counsel, appeared before the commissioner, and counsel for the respondent also appeared. The report of the examination was in these terms:—“Compeared the pursuer, Rose or Rosie M'Naughton, who being solemnly sworn, and examined and interrogated, depones, That she has known the defender for several years. Depones, That the defender has had carnal connexion with the deponent, and that he is the father of the male child born on the 26th of March, 1835. Interrogated on the part of the defender, how old she is? Objected by the counsel for the pursuer, that the general question having been put and answered, the defender is not entitled to put any special interrogatory. The commissioner repels the objection, and allows the defender to proceed, and the remainder of the deposition to be taken on a paper apart. Against which judgment the counsel for the pursuer appealed to the Lord Ordinary.” The rest of the deposition was sealed up, and the respondent moved the Lord Ordinary to allow that part of the deposition to be opened up and read. The Lord Ordinary directed the commissioner to make a special report of the res gesta at the examination; in compliance with which a report was returned, stating, that, before Rose M'Naughton was sworn, the counsel of Glass had proposed that his examination of M'Naughton should precede any questions to be put to her by her own counsel; that the commissioner had intimated, he considered that the examination should be conducted by questions put by himself, if he were possessed of the particulars which were necessary, in order to make the examination searching and effective; but that as he was not possessed of these particulars, and looked upon the oath in supplement as being truly a part of the advocator's own proof, her counsel should commence the examination; but that the counsel of Glass should be afterwards allowed to cross examine; that the counsel of Glass then said, “that these points were generally matter of arrangement, and that the pursuer's counsel might begin the examination; it being understood, that if he put the general question before the cross-examination, that question was nevertheless to be held as not having been put till the end of the whole deposition. The commissioner however thinks there was no fixed agreement between the parties as to this—And he, proceeding on the grounds already stated, allowed the pursuer's counsel to begin the examination. Her counsel accordingly began by asking the pursuer some special questions, when it was pleaded by the defender's counsel that he was only entitled to put the general question. This objection the commissioner overruled: And the counsel for the pursuer intimated, that if he put the general question, and any special questions were after that proposed to be put by the defender's counsel, he would object to his doing so. The general question was then put by the pursuer's counsel, and afterwards the objection was taken to the cross-examination, which the commissioner repelled.”

It was now pleaded by M'Naughton, that the decision of this question did not depend on any agreement of parties before the commissioner, as none such had been made. After she had established a semiplena probatio, nothing remained excepting that the Judge or his commissioner should himself take her oath in supplement of her proof. But in emitting this oath, it was still the oath of party, and not of a mere witness. It had not the binding effect of an oath of reference, because no reference was interponed to it; but the only safeguard to which the opponent of the party was entitled, was the sauctity of an oath, and the liability to the pains of perjury, if false swearing was committed. There was no right of cross-examination, as this step of procedure was adopted and conducted by the Judge alone, ad rimandam veritatem. But if the examination were not to be conducted by the Judge or commissioner, exclusively, still the party's own counsel had a right to commence it, because it was a part of her proof, and, of necessity, the onus lay on her to complete her own proof, before her opponent required, or was entitled, to take any step whatever. In the course of that examination, the general question, whether the respondent was the father of the child, was regularly put and answered: after which no special questions could be put on cross-examination, the only object of which must be to involve the party deponing, in the guilt of perjury. ¹

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¹ Jameson, Jan. 14, 1820, F. C.

The respondent answered. When the pursuer was allowed to give her own oath in supplement of her proof, she was truly adduced as a witness in her own behalf; and it would expose the respondent to the utmost hardship and injustice, if she were not liable to be subjected to a thorough examination at his instance. Properly speaking, he ought to have been allowed to commence the examination, just as when a party examines his opponent's witness, in initialibus, on subjects affecting admissibility or credibility; which was the true character of the examination by the respondent. And, according to this form of proceeding, all the difficulty would be avoided which resulted from first allowing her own counsel to put the general question to her. But, in any view, it was essential to justice, that the respondent should have the right of subjecting the advocator to a searching examination, and he could not be barred from doing so, by the effect of any question whatever which could be put to her by her own counsel.

The Lord Ordinary “having considered the two reports by the commissioner, and heard parties on the appeal taken by the pursuer against the judgment of the commissioner, allowing the defender to put special interrogatories to the pursuer, while under examination on her oath in supplement—Dismissed the said appeal, and allowed the sealed part of the deposition to be opened up.” ^*

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* “ Note.—In the case of Jameson against Barclay, 14th January, 1820, the Court refused to allow a woman who had been examined on her oath of supplement in an action by her for the aliment of a natural child, to he questioned at large, after answering the general question affirmative of the paternity. But the session papers show that the defender allowed the general question to be put, and that then, and not till then, he proposed before the justices to examine her in detail. This the justices refused to allow. There was then an advocation, which Lord Cringletie passed, expressly because he thought the justices wrong in this. The passed bill came before another Lord Ordinary, before whom, as before the Court, on advising the first petition, this point seems to have been abandoned, for there was no argument and no interlocutor upon it. But after losing the case on its merits, the defender lodged a second reclaiming petition, in which he proposed to be allowed then to renew the examination. This the Court refused, on the ground that, ' where the general question is put first, the Court will not compel a party to answer questions which are put with a view to make her perjure herself.’

“But in the present case the commissioner attests that the defender proposed that he should begin by putting special questions. The commissioner was against this, and stated that he thought that counsel for the pursuer should begin, this being a part of her proof, ‘it being understood, that if he put the general question before the cross-examination, that question was nevertheless to be held as not having been put till the end of the whole deposition.’ There was no recorded objection by tbe pursuer to this arrangement. She then began at once by putting the general question, and having got a favourable answer, refuses to let any counter-interrogatories be put by the defender.

“The Lord Ordinary thinks that the defender must be allowed to bring out the real truth by putting particular questions, either at first or at last, and that the substance of the arrangement here was, that they should be put at last. It does not appear to him that there is any deponent who ought to be treated with greater jealousy than the pursuer of such an action, when admitted to give evidence in her own favour. The pursuer's doctrine is well calculated to avoid the detection of perjury, and of course to encourage its commission.”

M'Naughton reclaimed.

The Court unanimously adhered, observing, that when the advocator was allowed the privilege of giving her oath in supplement, she was not in the position of a party deponing on a reference,but was, in substance, just a witness in her own cause: and that though her own counsel might put the general question to her, that could not bar the opposite party from subjecting her to a special cross-examination as to all pertinent details.