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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Calder v. North Berwick Burgh Commissioners [1876] ScotLR 14_43 (4 November 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0043.html
Cite as: [1876] SLR 14_43, [1876] ScotLR 14_43
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SCOTTISH_SLR_Court_of_Session
Page: 43↓
Court of Session Inner House First Division.
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v.
Facts:
Held, upon a construction of the Act 37 and 38 Vict. cap. 64, sec. 2, that if a witness in an action of divorce on the ground of adultery, who has not “already given evidence in the same proceeding in disproof of his or her adultery, be asked a question tending to show that he or she has been guilty of adultery,” it is the duty of the Judge to interfere and, unless the witness shall volunteer to answer or make a statement, to prevent the question from being put or recorded.
Cook, a miner, separated from his wife in January 1873, five months after their marriage, and since that time he had never seen her. Three years after the separation she gave birth to a child, and in an action of divorce upon the ground of adultery, thereafter raised by the husband, he averred that a man of the name of Mackie was father of the child. The action was undefended, and at the proof Mackie was called, and in the course of his examination Counsel asked, “Whether he had intercourse with the defender at a place named in the condescendence, in the month of July 1875?” The Lord Ordinary ( Craighill) doubted whether he should allow the question to be put, on the ground that it appeared incompetent under the Statute 37 and 38 Vict. cap. 64, sec. 2, and the point was reported by him to the First Division.
The case of Kirkwood v. Kirkwood, Dec. 9. 1875, 3 R. 235, was referred to.
At advising—
Counsel for Pursuer— Rhind. Agent— C. B. Hogg, L.A.