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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition - Scott [1866] ScotLR 2_217 (20 July 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0217.html Cite as: [1866] SLR 2_217, [1866] ScotLR 2_217 |
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Page: 217↓
Circumstances in which the Court remitted to a commissioner to take a pursuer's oath of calumny in an action of divorce before the summons was called.
The petitioner, who was a sailor, brought a divorce against his wife. The action was not yet called in Court. He was about to proceed on a voyage which was likely to be of one year's duration, and would accordingly not be in the country when his oath of calumny would fall to be taken. In these circumstances he craved the Court to allow the oath to be taken during vacation before the Lord Ordinary on the Bills, or to appoint a commissioner before whom it might be taken, the deposition to lie in retentis until the case was duly called and enrolled.
J. A. Crichton supported the prayer of the petition, and relied on the cases of A. B. v C. D., 16 S. 1143, and Potts, 2 D. 248, as authorities in respect of which it should be granted.
At advising—
The Lord Justice-Clerk—There are two objections to the taking of this oath of calumny in the manner proposed—(1) that it is premature; and (2) that it is proposed to take it before some other person than the Lord Ordinary in the divorce process. Now, as to the second objection, the case reported in the 16th vol. of Shaw is a good authority, because there the objection was taken that the 36th section of the Act provides that the Lord Ordinary shall administer the oath of calumny, but notwithstanding the Court granted a commission, the party being resident in India. The other objection is that the proposed step is premature, the case not being in shape according to statute. But there is authority in the case of Potts for that also. No doubt the oath was there taken before the Lord Ordinary who was to be the Lord Ordinary in the divorce process, but it might readily have been otherwise. Taking these authorities together, I think we may grant a commission to take this oath that it may lie in retentis until the action is called before the Lord Ordinary, due notice being first given to the defender, and proof that such has been given produced before the commissioner.
The other Judges concurred.
The Court accordingly appointed a commissioner in terms of the prayer of the petition.
Solicitors: Agents for Petitioner— Webster & Sprott, S.S.C.
