Scottish Court of Session Decisions

Subject_1Process
Subject_2Proof
Subject_3Husband and Wife
Subject_4Divorce — Recall of Witness — Evidence Act 1852 (15 Vict, cap. 27), sec. 3.
Facts:

In an action of divorce on the ground of adultery, counsel for the defender at the close of the proof moved the Lord Ordinary, in terms of sec. 3 of The Evidence Act 1852, to be allowed to recal G, a witness for the pursuer, who had deponed that she was eye-witness to one of the alleged acts of adultery, on the ground that information had since her examination been received that she had given to other parties a totally different account of what she alleged she had seen. It was proposed to question G as to these different accounts, with the view of leading evidence of the parties to whom defender alleged these different statements had been made. The Lord Ordinary refused the motion, being of opinion, looking to the whole circumstances, that no sufficient reason had been adduced in support of it. The case came before the Inner House on a reclaiming note, when the defender renewed his motion to be allowed further to examine G in the manner and to the effect proposed to the Lord Ordinary. The Court, following Robertson v. Steuart, February 27, 1874, 1 R. 532, granted the motion, and pronounced this interlocutor:“Having heard counsel on the motion of the defender to be allowed further to examine the witness”G “in the manner and to the effect proposed in the course of leading the defender's proof, allows the said witness to be recalled and examined as proposed, and also allows the defender to examine other witnesses for the purpose of and in the terms of the 3d section of the statute 15 Vict. c. 27,” and appointed the evidence to be taken before Lord Shand.