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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs Annie Lawson or Surtees v. Robert Wotherspoon [1872] ScotLR 9_230 (20 January 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0230.html Cite as: [1872] SLR 9_230, [1872] ScotLR 9_230 |
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Page: 230↓
Circumstances in which the judicial examination of the defender in a declarator of marriage was refused, there being no undue concealment or suspicion attaching to him, and no necessary probability of a penuria testium.
Opinion by the Lord President that judicial examination is still competent after proof has been led.
This was an action of declarator of marriage founded upon promise subsequente copulâ, or alternatively, for damages for breach of promise of marriage.
The pursuer Mrs Lawson or Surtees averred that the defender, who was an iron merchant in Glasgow, had made her acquaintance in February 1865, had paid his addresses to her, and expressed his desire that she should become his wife. That during the following years he continued on the same footing, doing much for her two children, and executing a codicil to his will in her and their favour. That finally, in November 1867, he gave her a written promise of marriage, on which repeated acts of connection followed during the three subsequent months.
The defender, on the other hand, alleged that when he made the acquaintance of the pursuer in 1865 she was a woman of loose character. That in that and the subsequent years he frequently had connection with her, for which he always paid as to a common prostitute, and that he never stood in any other relation to her. That in consequence of her conduct he broke off even this connection towards the close of 1867. He also averred that since the present action had been threatened he had discovered that in 1863 the pursuer had brought a similar declarator of marriage against a Mr Dewar, which, though allowed to fall asleep in December 1864, was still in Court in 1870, when, on her motion, the process was wakened and the defender assoilzied. These were all the averments in the defender's own statement of facts, but it otherwise appeared that the defender admitted the written promise, while alleging that it was conditional, and that the conditions had not been purified by the pursuer, so as to be competently made the ground of an action of declarator of marriage. And denied that any copula had taken place on the faith of any such promise, or with the view of constituting marriage.
The Lord Ordinary ( Mackenzie) on 21st November 1871 pronounced the following interlocutor:—
“ Edinburgh, 21 st November 1871.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record and process, before answer allows the parties a proof of their respective averments in so far as regards the conclusions for declarator of marriage and adherence, and to the pursuer a conjunct probation; grants diligence,” &c.
Thereafter on 23d December 1871 he pronounced this other interlocutor:—
“ Edinburgh, 23d December 1871.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record, allows the defender to be judicially examined, first in regard to the carnal connection of the defender with the pursuer set forth in the record; and second, in regard to the defender's knowledge, during the period between the month of January 1865 and the 5th of July 1871, of and concerning the action at the pursuer's instance against Francis Dewar, and the procedure therein, and appoints the said judicial examination to take place before the Lord Ordinary on Thursday the 11th day of January, at half-past ten o'clock.
Note.—The Lord Ordinary considers that the judicial examination of the defender should be
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allowed on the two points set forth in the preceding interlocutor. 1. In regard to the first of these, the pursuer desired to limit the examination of the defender to the carnal connection alleged by her to have taken place after 20th November 1867, the date of the alleged promise of marriage, and set forth in the 5th article of her condescendence. But the Lord Ordinary considers that if the defender is to be examined at all with reference to this matter, his examination should be allowed to include the acts of connection alleged by him to have taken place during a period of nearly three years prior to the date of the alleged promise. Any other course would, it is thought, be unjust to the defender, and might lead to an erroneous view of the relations which subsisted between the parties, and which may have an important bearing upon the case. The ground stated in support of the pursuer's motion was the occult nature of the acts, and that she only kept one servant in the house where the defender visited her, after granting her the alleged promise of marriage, during part of the time, so that there is a penuria testium in regard to these subsequent acts of connection. Although the defender in his defences admits long continued intimacy with the pursuer, and connection prior to the date of the promise, he denies the pursuer's statements in regard to the subsequent connection, and the averments in his statement of facts with reference thereto are evasive.
2. The statement of the defender with reference to the declarator of marriage at the pursuer's instance against Francis Dewar may have a very important bearing upon the question at issue,—these averments being, that during the whole period libelled the pursuer was insisting in that action of declarator. The pursuer avers that this action was not well founded in fact, and was practically abandoned by her in the year 1864, before her acquaintance with the defender began. She also avers that the defender was fully aware, both before and after the date of the promise, of the said action and of the procedure therein, and also of the relationship upon which the pursuer had stood to Dewar. Such knowledge, if it existed, must have a very material bearing upon the defence, in so far as founded upon the subsistence of that action, and the judicial examination of the defender with reference to such knowledge appears to the Lord Ordinary to be proper.”
Against this interlocutor the defender reclaimed. The pursuer, at the same time, brought up for review the previous interlocutor of 18 November.
Shand and Lancaster for the defender and reclaimer.
Solicitor-General and Rhind for the pursuer and respondent.
Authorities— Sceales, March 13, 1866, 4 Macph. 575; A. B. v. C. D., Dec. 23, 1843, 6 D. 342; Lindsay v. Chapman, Feb. 23, 1826, 4 S. 490; Mackenzie v. Stewart, Feb. 5, 1848, 10 D. 611; Kennedy v. Macdowal, Feb. 12, 1800, 2 Bell's Illustrations, 243, and Fergusson's Consistorial Cases, 163; Craigie v. Hoggan, Jan. 19, 1837, 15 S. 379; Stewart, Hume 380; Steuart v. Steuart, June 30, 1870, 8 Macph. 821; Fraser's Per. and Dom. Rel. 700. Evidence Act, 1853.
At advising—
But the question raised under the defender's reclaiming note is one of more general importance. At one time judicial examination in initio litis was a very common and almost universal part of the procedure in consistorial causes. But it is just as certain that in modern times, and since the radical jurisdiction in consistorial causes has been transferred to the Court of Session, the practice has been just the opposite. I do not mean to infer that it is now an incompetent, but only an exceptional proceeding. I think the modern practice is stated most accurately in the opinions both of Lord Medwyn and Lord Moncreiff in the anonymous case reported at 6 D. 342. Lord Medwyn says—“It is a well-known form to allow a judicial examination of the parties, of both or either of them, on facts which are within their knowledge, where there is any undue concealment or suspicion, or where there is necessarily a penuria testium.” Now, taking that as a very fair exposition of the ground upon which judicial examination can be allowed, the question occurs here, Is there in this case anything of the nature of grave suspicion and concealment on the part of the defender, or is there any apparent probability of penuria testium? I can, I confess, see no aspect of the case which suggests a penuria testium. It is true that the circumstances of connection are accurately described as occult facts. But still they are possible to be proved by the testimony of witnesses, either directly or indirectly, and most generally are so. Therefore, to say that in such a case there must be, or probably will be, a penuria testium, is to contradict all previous experience.
Next, let us consider whether there is anything in the circumstances as disclosed on record which can infer any particular concealment or suspicion against the defender. I confess I cannot see any such. If this record had been completed by revisal of the pleadings in the old fashion, I rather think we should have had a fuller disclosure of the facts. That we have not is no fault of the parties, or of the defender in particular, but of the present method of procedure. The defender has made an allegation as to another action of declarator of marriage at the pursuer's instance. The answer is, that the existence and dependence of that action was known to the defender at the time he became the husband of the pursuer. If that be so, it will no doubt appear on the proof allowed by the Lord Ordinary. But there is nothing in it which attaches undue suspicion to the defender. If he did know of these proceedings it cannot be difficult to prove the fact. On neither ground,
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I think it right to add, that though a passage has been read to us from a writer on consistorial practice, to the effect that judicial examination cannot be allowed after proof has been led, I do not subscribe to that doctrine. It is quite possible—I do not say it will be the case—but merely that it is quite possible—that the facts of the case when proved may ultimately render judicial examination necessary. But if allowed it will only be so on the grounds I have mentioned.
Then as to the motion for judicial examination, I agree that, though competent, it is only to be allowed in exceptional cases. The question here then is, whether sufficient grounds for an exception have been shown. As regards the defender's knowledge of the dependence of the previous action, I see no reason to assume that there is anything occult about that which could not be proved in the ordinary way. It may be that after a proof has been led a better case may be made out for a judicial examination; and I would reserve my opinion on the point as to whether a judicial examination can be allowed after proof. The question has not been argued to us, and I would like to have all the authorities before determining the point. But supposing we assume that a judicial examination cannot afterwards be granted, we must still have very strong prima facie grounds for supposing that the facts averred are of such an occult nature as to justify this exceptional mode of proof. With reference to the intercourse alleged between the parties, I do not see any ground for saying that that was of such an occult nature as to require such examination. It may be that the intercourse in such cases consists of a single act, of which no one but the parties themselves have any opportunity of knowing. But that is not the case here, the intercourse libelled is continuous. There is no room therefore for presuming anything occult about it, particularly looking to the pursuer's statements as to its circumstances. Over and above all that, I am not satisfied that the existence of either of these conditions, either that prima facie the facts are occult, or that there is an apparent penuria testium, or both of them, are sufficient and conclusive in the matter. I think that, besides this, it is necessary to show that the mode of proof demanded is essential to the justice of the case. Even if these other things were made out in a satisfactory manner, I still think we must have grounds for saying that the procedure is essential to the justice of the case. And that I think the pursuer had failed to show here.
The Court accordingly adhered to the interlocutor of the 21st November, recalled that of the 23d December, refused the pursuer's motion for the judicial examination of the defender, and remitted to the Lord Ordinary to proceed with the cause.
Solicitors: Agents for the Pursuer— D. Crawford & J. Y. Guthrie, S.S.C.
Agents for the Defender— J. & R. D. Ross, W.S.
