Scottish Court of Session Decisions

This was an action of reduction of a decree of declarator of marriage obtained by the present defender Mrs Jessie Grigor or Forster, against the present pursuer James O. T. Forster, on 25th May 1869. The pursuer alleged “For the greater part of the time during which said action was in dependence the present pursuer was absent from this country. Especially he was absent while the preparations were made for the proof, and while the proof was being taken. Owing to this, much evidence that might have been available to the present pursuer was overlooked and not laid before the Court. In that action the present defender produced a bible, with the following writings therein:—‘I, James Ogilvie Tod Forster, take thee, Jessie Grigor, to be my wedded wife from this day henceforth until death us do part; and thus do I plight thee my troth.’ ‘I, Jessie Grigor, take thee, James Ogilvie Tod Forster, to be my wedded husband from this day henceforth until death us do part; and thus do I plight thee my troth.’ (Signed) ‘James Ogilvie Tod Forster; Jessie Grigor. Sept. 2 d, 1865.’ These writings she alleged to be in the handwriting of the present pursuer, with the exception of her own signature; and she adduced two witnesses, William Atkinson and Jane Bain, who expressed their belief that the said writings were in his handwriting. The witnesses who spoke to these writings, namely, William Atkinson and Jane Bain, were not in a position of knowledge which entitled them to speak on such a matter. Moreover, the pursuer avers that the said witnesses are not entitled to credit. They gave wilfully false testimony on other parts of the case essential to the success of the pursuer in that action, and that with regard to facts within their own knowledge.”

The Lord Ordinary ( Jerviswoode) sustained the 2d and 3rd pleas of the defender, which were “The statements in the condescendence are not relevant or sufficient to support the conclusions of the summons. The decree of declarator of marriage having been pronounced in foro in an action in which the present pursuer was throughout duly represented, after proof had been led, and the pursuer heard thereon, the present action of reduction ought to be dismissed.”

Note—The questions here raised are of importance not only to the parties immediately interested in the present suit, but in a more general aspect.

“As respects the interests of the pursuer and defender here, it may be, and has been, argued with much force, that if the decree under challenge proceeded on evidence which can now be proved to have been unworthy of credit, it ought not to stand. But the opinion of the Lord Ordinary is that where a decree of this Court is challenged on allegations of falsehood in the evidence, it is essential to their relevancy that these should be of the most specific and direct character in their terms. What shall be held to be such it is not necessary here to inquire further than in so far as respects the matters of averment made on the part of the pursuer. But these, in the opinion of the Lord Ordinary, fall short in material respects of that specification and precision which the Court are warranted and bound to expect and require.”

The pursuer reclaimed.

Keir, for the defender, moved the Court to remit the reclaiming-note to the other Division of the Court, in respect that the decree in question had been pronounced by that Division.

Lancaster objected to the competency of this course.

The Court refused the motion, on the ground that, under Act of Sederunt, it was neither imperative nor competent for them to grant it.

Lancaster (the Dean of Faculty ( Gordon), and the Solicitor-General ( Clark) with him) argued that there was no authority or principle for holding that a reduction on the ground of falsehood was incompetent. Was there to be no remedy? The cases of De La Motte v. Jardine, M. 447; and Robertson v. White, M. 12,100, showed that an action of reduction was competent. The pursuer could not know that the witnesses were going to perjure themselves till they gave their evidence, and as he was then out of the country he was at great disadvantage.

Keir (with him Shand) were not heard in reply.

The Court held that the Lord Ordinary was right. There was no allegation of res noviter, nor of subornation of perjury, which might have made a difference. The pursuer had notice that the writing alleged to be in his handwriting was to be produced at the proof, and he did not bring a single witness to prove that it was not his. He cannot now be allowed to do what he ought to have done at the proof.