Scottish Court of Session Decisions

Observations on the term penuria testium.

In accordance with the interlocutor of the Court, pronounced January 20, 1872, a proof was taken before the Lord Ordinary ( Mackenzie). After the proof was taken the pursuer again moved for a judicial examination of the defender.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 4 th June 1872.—.... 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 a day to be afterwards fixed.

Note.—It appears from the report of the decision of the Court (Jan. 20, 1872, 9 Scot. Law Rep., 230), recalling the interlocutor of the Lord Ordinary, dated 23d Dec. 1871, in which the judicial examination of the defender, to the effect set forth in the preceding interlocutor, was allowed, before proof had been led that such examination should only be allowed where there is a penuria testium, or undue concealment or suspicion, and where it is essential to the justice of the case. The case of the pursuer on record is, that she is the widow of an officer in the East India Company's Service; that she became acquainted with the defender in 1865; that he paid his addresses to her; that on 20th November 1867 he gave her the promise of marriage, No. 6 of process, in which he promised to marry her, and provide for her according to his means, until circumstances warranted such marriage, always providing that in the interim she continued to lead a virtuous and exemplary life, and that, relying upon this promise, she was prevailed upon to allow the defender to have carnal connection with her during the period between 20th November and 1st December 1867, and also in the months of December 1867 and January and February 1868, and subsequently.

It is, in the opinion of the Lord Ordinary, clearly proved that the pursuer is not the widow of an officer; that in and for several years after 1855 she was a prostitute in Edinburgh; that from 1857 to 1859 she kept a brothel in St James' Square, Edinburgh; and that before going there she kept a brothel in St David Street, Edinburgh; that she thereafter went to Glasgow, where she accidentally met the defender in 1865, and that he, after visiting her from time to time, at last took her into keeping as his mistress in 1866.

It was in such circumstances that the promise of marriage, dated 20th November 1867, No. 6 of process, was granted by the defender. The only witness adduced by the pursuer in support of her averments of connection after 20th November 1867, on the faith of that promise, was Jane Bird, her servant in Glasgow from the end of April until the end of December 1867. She deponed that during this time the defender very frequently visited the pursuer at night, and remained a considerable time alone with her, but she never saw any familiarity between them, except upon one occasion, a few days after he had granted her the foresaid promise of marriage. She states that he then called about 11 o'clock at night, and that, as the pursuer was unwell and in bed, he was shown into her bedroom. She further states that, about 1 o'clock in the morning, she went into the bedroom to gather the fire, thinking that the defender had left, and found him in bed with the pursuer. That, is the only evidence adduced by the pursuer in support of her averments of repeated carnal connection between the defender and her on the faith of the said promise. The only other inmate of the house, according to Jane Bird, was the pursuer's son, aged twenty-one or twenty-two years, who she states usually went to bed about 10 or 11 o'clock. One other witness, Christina Lang, who was servant to the pursuer for nearly two months after 3d January 1868, was adduced by the defender. She deponed that the defender called two or three times a-week, and remained an hour, and sometimes two or three hours, but that she never saw anything like familiarity between them, and had no idea that there was anything of the kind.

It is in these circumstances that, at the close of the proof, the pursuer renewed her motion for the judicial examination of the defender. The Lord Ordinary's interlocutor of 23d December last was recalled, and the pursuer's motion for the judicial examination of the defender was refused, as he understands, because there was no undue concealment or suspicion attaching to the defender, and no apparent probability of a penuria testium in regard to the matters on which the defender's judicial examination was sought,—the Lord President remarking that “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.” Since the decision in the Inner House was pronounced, a proof has been led, on consideration of which the Lord Ordinary is satisfied that there is a penuria testium in regard

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to the alleged acts of connection subsequent to 20th November 1867, the date of the promise. In regard to the defender's knowledge of the action at the pursuer's instance against Francis Dewar, there is no evidence whatever, except what may be inferred from the fact that the defender's letters to the pursuer, the addresses of which are extant, are all addressed to her as Mrs Dewar, except one, which is addressed to her as Mrs Surtees Dewar. It is not unimportant also that none of the letters from the pursuer to the defender, prior to 1869, were produced by him, although such letters were written once a-week on an average, these having been destroyed soon after they were received.

“Further, the Lord Ordinary considers that it would not be satisfactory to decide the cause without the judicial examination of the defender, and that it is necessary for the justice of the case. For these reasons, he is of opinion that the judicial examination of the defender should be allowed on the two points set forth in the preceding interlocutor; and, in explanation thereof, he begs to refer to the note to his interlocutor of 23d December 1871.”

The defender reclaimed.

Shand and Lancaster for him.

Solicitor-General and Macdonald for the pursuer.

At advising—