Hamilton v Hamilton's Executrix
| Jurisdiction | Scotland |
| Judgment Date | 11 November 1949 |
| Docket Number | No. 7. |
| Date | 11 November 1949 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
EvidenceReference to oathWitness sisted as party after giving evidenceWhether reference to her oath competentEvidence (Scotland) Act, 1853 (16 and17 Vict. cap. 20), sec. 5.
The Evidence (Scotland) Act, 1853, by sec. 5, provides, inter alia, that "it shall not be competent to any party who has called and examined the opposite party as a witness thereafter to refer the cause or any part of it to his oath."
In an action on a bill of exchange which had prescribed under the sexennial prescription, proof by writ was allowed and, failing proof by writ, proof by the oath of the defender. The pursuer called and examined the defender's daughter as a witness in the proof by writ, in which it was held that he had failed. Thereafter the defender died, and his daughter was sisted as defender in his place. The pursuer referred the cause to her oath.
Held that the reference was competent, in respect that the daughter, when examined as a witness by the pursuer, had not been a party to the cause.
Observed that the Court may refuse to allow a reference if it thinks that such allowance would be inequitable.
In 1946 James Hamilton brought an action in the Sheriff Court at Dumbarton against Robert Hamilton for payment of the sum contained in a bill of exchange dated 2nd July 1936.
The facts of the case and the procedure followed are stated in the following excerpt from the opinion of the Lord Justice-Clerk:"This appeal arises out of an action begun in the Sheriff Court in Dumbarton in December 1946 at the instance of James Hamilton against his brother Robert for the recovery of a sum alleged to be due under a bill of exchange. There has been a great deal of procedure which it is hardly necessary to narrate. As the bill was dated 2nd July 1936 the sexennial prescription applied, and, that being so, the Sheriff-substitute on 2nd June 1947 pronounced an interlocutor which, inter alia, found that the pursuer's averments regarding the granting for value and the resting-owing of the bill might only be proved by the writ or oath of the defender. The interlocutor then proceeded:Allows to the pursuer primo loco a proof by writ accordingly, and to the defender a conjunct probation; Appoints the parties to lodge inventories of the writs upon which they propose to found in the course of the said proof within seven days hereof, and appoints said proof to proceed on a day to be afterwards fixed; Thereafter, if the pursuer should fail to prove his said averments by writ, allows him, if so advised, to lodge a minute of reference to the defender's oath, within a period to be fixed by the Court; Reserves the question of the...
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Stirling Council V. Andrew Neil
..."party" should be interpreted as having the same definition in both rules. Reference was made to Hamilton v Hamilton's Executor 1950 SC 39 per Lord Justice-Clerk Thomson at page 42 where it was held that in the context of that case "party" meant someone who had entered the action. The same ......