Headnote:
Observations (per the Lord President, Lord Adam, and Lord M'Laren) on the practice of calling the defender as the first witness for the pursuer in actions of filiation and aliment.
Margaret M'Arthur, residing at Crossgates, Fife, brought an action of filiation and aliment in the Sheriff Court of Fife at
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Dunfermline, against John M'Queen, miner, also residing there.
Proof was allowed and led. The defender was called and examined as the first witness for the pursuer, and afterwards gave evidence on his own behalf. The Sheriff-Substitute (
Gillespie) decerned in favour of the pursuer, but, on appeal the Sheriff (
Chisholm) recalled his interlocutor, and assoilzied the defender from the conclusions of the action. The pursuer appealed to the Court of Session.
Judgment:
Lord President—[
After stating his opinion that the pursuer had failed to prove her case]—I should like to add a word as to the practice of a pursuer calling the defender as the first witness. For many years strong disapprobation of this practice has been expressed from the bench, not only in this Court but in the House of Lords. It is not (unless under very exceptional circumstances) the proper mode of conducting a case. The defender is put into the witness-box in order to get him to commit himself during a hostile examination on some point or points in regard to which it is intended to bring other witnesses to contradict him. It has repeatedly been said that (unless under exceptional circumstances) where a witness is called by either party, he is presented to the Court by that party as a witness of credit, and that the party cannot be allowed afterwards to contradict or discredit him.
This case is an illustration of the injustice which may result from the practice of a pursuer calling the defender in order that he may afterwards be contradicted and treated as a witness who should not be believed.
Lord Adam—[
After dealing with the facts]—I entirely concur with your Lordship's observations on the practice—an entirely improper practice in my opinion—of attempting to hamper the defender by producing him as a witness in order to try to get him to perjure himself on some more or less irrelevant and collateral point, and then to contradict him by independent witnesses. I think that is not a fair practice to the defender, and should be discouraged.
Lord M'Laren—There are cases, such as the reduction of a will, when it may be necessary for the pursuer to put his adversary in the witness box as a necessary witness to prove a matter of fact which cannot be proved without his testimony, In such cases the examining counsel will be allowed to examine him as an adverse witness—in fact, to examine him according to the rules of cross-examination. But the present is not a case of that sort, for the facts are not necessarily to be proved by the defender's evidence—indeed, if the pursuer's case had to be proved by the evidence of the defender, cases like this would never be brought. Without going so far as to say that the pursuer, if she puts the defender in the box, is bound by everything which he says—for instance, if he denied the fact of connection, I should not hold her bound by that—I think it must be assumed that the defender is put forward by the pursuer as a person of credit, not necessarily on the main issue, but on all the minor facts of the case from which light on the main issue may he obtained. In so far as he speaks to matters of fact with regard to which he must be familiar, and in so doing discredits the pursuer's averments, I think the case must he taken as if one of the pursuer's principal witnesses had failed to establish the facts for which he was adduced.
Lord Kinnear concurred.
