Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WITNESS.
Subject_3 The evidence of the mother and sister of a pursuer, in a declarator of marriage, inadmissible.

Margaret Dalziel
v.
John Richmond

Date: 10 July 1790

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Fac. Coll. X. 288;Dictionary, 16,780.

Justice-Clerk. When there is a penuria testium as to a fact, the nearest relations may be admitted as witnesses; not so in contracts. Why were there no other witnesses? Indeed there were; but they did not know Richmond. [This simple unadorned sentence is highly rhetorical, and the more so because unadorned.] In such critical cases, parents and near relations are under strong inducements to deviate from truth.

Eskgrove. In a clandestine marriage there is more occasion for witnesses than in a regular. In the case of Malcolm there was, from the circumstances of the fact, a penuria lestium.

President. Had the proof been as to a public marriage, there would have been no need for considering the validity of such an objection. Shall more latitude be given in the case of an irregular marriage?

Henderland. As far back as the records of the Commisssary Court go, near relations have been admitted, not to prove the fact of celebration, but to prove circumstances of acknowledgment. A case may be figured when, by the death of witnesses unexceptionable, a regular marriage may be proved by the evidence of a father and mother.

On the 10th July 1790, “The Lords found that the witnesses in question cannot be admitted.”

Act. D. Cathcart. Alt. W. Stewart. Reporter, Dreghorn.