Scottish Court of Session Decisions

Subject_1 OATH of PARTY.
Subject_2 SECT. I.

In what Cases admitted.

Margaret Dalziel
v.
John Richmond

Date: 4 February 1792
Case No. No 22.

Oath on reference competent, after the adducing of parole proof.

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Margaret Dalziel having raised a declarator of marriage against Richmond, several witnesses adduced by her in support of her libel were examined. The Commissaries, however, found this evidence insufficient, and assoilzied the defender.

She afterwards preferred a petition, praying that the libel might be referred to his oath. This the Commissaries refused; and she, having brought the point under review of the Court,

Pleaded; It is indeed reasonable, that before reference to oath, the party referring should renounce all other evidence; because if such oath be not necessary as a means of proof, his only object must be to ensnare his adversary into perjury. But, on the other hand, when all farther proof has been relinquished, the reference is competent and right, notwithstanding that some evidence may have been already brought; the adversary as to this being put on his guard; Voet, lib. 12. tit. 2. § 11.

By certain old decisions, it is true, a reference in these circumstances was denied; for which it is the more difficult to account, as it was always admitted in cases where proof by writing had been attempted; Ersk. b. 4. tit 2. § 3. But the point was unalterably fixed 24th June 1747, in the case of Law contra Lundin, voce Process, in which it was found, “That a libel might be referred to the party's oath, notwithstanding the depositions of the witnesses.”

Answered; He who makes a reference to the oath of his adversary ought to be actuated by an expectation that the truth will thereby be declared, having confidence that the adverse party is not disposed to commit the crime of perjury. Were a person impressed with the opposite sentiments, to insist on his adversary's oath, his conduct would be immoral in a high degree; nor in a legal sense, upon the crime's being afterwards perpetrated, could he be viewed in any other light than that of an accessory. But if he has already made his election of a different mean of proof, especially that by witnesses, he betrays his distrust in the veracity of his opponent, to whose oath the law will no longer leave him at liberty to recur; 1. II. Cod. De reb. cred. et jur.

Besides, it is an observation of Lord Stair's, that ‘allowing the oath of party then would infer perjury and defamation of witnesses;’ Irvine contra Ross, inf. cit. And, on the other hand, the preceding testimonies might create an unjust suspicion of the truth of what the party deponed.

It may be remarked, that there is in this respect a just distinction between written and parole evidence; the former being something which already exists, and which therefore it is natural to make use of, before the creating of new evidence by the latter.

Accordingly there occurs a singularly uniform series of decisions respecting references after parole proof had been attempted. Thus, Colvil, 1st July 1574, Earl of Sutherland, voce Process; Colvil, 20th January 1575, Lord Glenbervy, Ibidem; Durie, 15th June 1622, L. Roslin, Ibidem; 29th January 1639, L. Westmorland, Ibidem; Spottiswood, 26th January 1630, Duke of Lennox, Ibidem; Hope, 5th July 1617, Finlayson, Ibidem; Fountainhall, 26th February 1686, Horn, Ibidem; Stair, 22d June 1676, Irvine, Ibidem; Clerk Home, 18th November 1737, Macbrair, Ibidem; to all which, the case quoted on the other side is alone, to be opposed.

The Lord Ordinary “remitted to the Commissaries, with this instruction, to ordain the defender to depone on the pursuer's reference.” And,

On advising a reclaiming petition and answers,

The Lords adhered to the Lord Ordinary's interlocutor.

Lord Ordinary, Justice-Clerk. Clerk, Colquhoun. For M. Dalziel, Fraser Tytler. Alt. Stewart. Fol. Dic. v. 4. p. 23. Fac. Col. No 204. p. 429.