Scottish Court of Session Decisions

Subject_1 WITNESS.

Margaret Dalziel
v.
John Richmond

Date: 10 July 1790
Case No. No. 205.

The evidence of the mother and sister of a pursuer in a declarator of marriage inadmissible.

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In an action of declarator of marriage, Margaret Dalziel the pursuer adduced, beside other witnesses, her father, mother, and sister. The Commissaries admitted the evidence of the father, and the defender having acquiesced in that judgement, he was examined. Other witnesses were also examined, but their testimony proved nothing decisive of the question. The Commissaries then, after a strenuous opposition, likewise found the evidence of the mother and sister to be admissible; upon which the defender presented a bill of advocation, and

Pleaded: When persons nearly related to a party appear as witnesses in his behalf, they approach more or less, according as the relation is close, and of consequence the interest strong, to the situation of a man bearing evidence in his own favour. It never was, therefore, or could be made a question, whether such were legal or impartial witnesses. The only doubt was, if in cases where a penuria testium was the result of the circumstances, their testimony could be at all received, not as proper parole-proof, but rather as of the nature of real evidence, tending to corroborate or illustrate what antecedently had been in some degree, though imperfectly, proved. Of this kind of evidence then, the sole efficacy consists in its having a relation to such antecedent proof. But in the present case, there exists no sort of previous evidence of the pursuer's allegation, the testimony of her father being justly disregarded.

Answered: Clandestine marriages are not put extra commercium. Such evidence then as is consistent with the nature of the transaction, must be admitted with regard to them. As the secret will naturally be instructed to the near relations of the parties, they, of course, become necessary witnesses. Accordingly, in the case of Sibilla Barber against Stewart, the brother and sisters of the pursuer of a process of adherence were received as witnesses cum nota, 31 st July 1732, No. 161. p. 16742. And in the later case of Cameron against Malcolm in the year 1756, when a declarator of marriage was brought by the man, and a declarator of freedom by the lady, the mother and sister of the latter were received as witnesses in her behalf.

Replied: With respect to the case of Cameron and Malcolm, the pursuer there, by the nature of his plea, made a sort of appeal to the evidence of the defender's mother. Besides, the counter action went on the allegation of the crime of abduction.

The bill of advocation having been passed, the Lord Ordinary before whom the cause afterwards came, took it to report on informations, when

The Court strongly expressed their sense of the importance of the case in point of precedent. No temptation to perjury, it was observed, could operate more irresistibly, than that to which parents would be liable, if the fate of their children were made to depend on their testimony in a process of declarator of marriage; an idea in every view alarming to society. The objection to a brother or a sister's evidence in similar circumstances, was considered as also insurmountable.

To the decision in the case of Barber, little respect seemed to be paid; the distinction having been made betwixt that penuria testium which necessarily results from the situation of the party requiring evidence, as where a crime has been committed against him, of which the case of Malcolm was an example, and such a penuria as arises from his own fault.

The Lords “remitted the cause to the Commissaries, with an instruction, to alter their interlocutor, and to refuse to admit any of the witnesses.”

Reporter, Lord Dreghorn. Act. Cathcart. Alt. Stuart. Clerk, Sinclair. Fac. Coll. No. 145. p. 288.