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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Melrose v. Spalding [1868] ScotLR 6_14 (21 October 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0014.html Cite as: [1868] ScotLR 6_14, [1868] SLR 6_14 |
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Page: 14↓
Held that it was no objection to a reference to oath that the party referred to had been adduced as a witness in the cause and cross-examined by the party making the reference.
This was an advocation from the Sheriff-court of Roxburghshire, of an action in which a claim was made on account of plaster work done by the pursuer. The defence was a denial of employment. The case came before the Court last session, when a remit was made to the Sheriff to frame findings in facts, he having failed to do so in terms of the Act. These findings having been framed, the case returned to the Court of Session, and the Court adhering to the judgment of the Sheriff ( Rutherfurd) and Sheriff-substitute ( Russell) decerned against the defender. The defender thereupon referred the whole case to the pursuer's oath.
Keir for the pursuer objected to the reference, on the ground that in the evidence led in the action in the Court below the pursuer had been adduced as a witness for himself and had been cross-examined by the defender.
J. C. Smith for the defender was not called upon.
The Court sustained the reference.
The pursuer's deposition having been taken before the Lord Justice-Clerk, the Court to-day, after hearing Mr Smith, held the oath to be negative of the reference.
Agent for Advocator— James Somerville, S.S.C.
Agent for Respondent— David Milne, S.S.C.
