Scottish Court of Session Decisions

In June 1892 Matthew S. Stevenson, Annfield Place, Paisley, brought an action against Mrs Maria Martin or Stevenson, an old woman then in Gartnavel Asylum, and Thomas Fairie, Harrietville, Pollokshields, her curator bonis, to have it declared that he and the female defender were married upon 6th August 1888 by interchange of missives. He alleged that arrangements had been made for a regular marriage being solemnised on 10th March 1891, but that on 9th March the male defender had unjustifiably removed his ward to an asylum on the ground that she was insane.

At the date when the defender was removed to the asylum Fairie was not aware of the existence of the missives founded upon by the pursuer, nor that he claimed to have been previously married to the other defender. These facts were not known to Fairie or his agents till the service of the summons in the present action in June 1892.

In the course of the proof Fairie proposed to found upon a statement made by a servant of Mr Stevenson, named Bella Jamieson, who had since died. The evidence as to the taking of this statement was as follows—Fairie himself deponed—“Immediately after removing Mrs Stevenson to the asylum I thought it right to take a statement from Bella Jamieson, and also from her sister Mrs Sinclair, and that was done in my presence in the office of Messrs Hill, Brown, & Company.”

Mrs Sinclair deponed—“Mr Fairie asked Bella and me to go down to the office of Hill, Brown, & Company with him, and we went. The lawyers took a statement from Bella, writing down her story.”

Mr Findlay, of Hill, Brown, & Company, deponed—“On 11th March Bella Jamieson and Mary Sinclair called at my office, either by themselves or along with Mr Fairie, I am not sure which. I did not send for them. Upon that occasion I took statements in writing from them both. I took those statements because of the very peculiar circumstances of the case, and in consequence of what I had heard as to the alleged intended marriage. I have with me the original of the statement made by Bella Jamieson. It is signed by her and dated the 11th March 1891. It was taken by me in her presence, and in presence of Mr Fairie, and it was reduced to writing at the same time on the suggestion of Mr Fairie. By the Court—The statement was the result of questions put by me and answers made by her.”

The pursuer objected to the statement being admitted as evidence, and this objection the Lord Ordinary ( ) sustained.

“ Opinion.—… It is perhaps proper to say a word with regard to the deceased servant Bella Jamieson, who was one of the witnesses to the alleged marriage. I have rejected as evidence the statement said to have been made by her to the agent for the curator after the defender had been removed to the asylum. I have done so on the ground that that statement, which is simply the agent's narrative of answers to questions put by him, was in effect a precognition, taken no doubt quite legitimately, and not directly for the purposes of this case, but yet a precognition taken for the purpose of fortifying the curator's position.” …

On this point the defenders, who reclaimed from the Lord Ordinary's interlocutor on the merits, argued—The statement had been very properly taken to preserve evidence of the true state of circumstances at that date. The person making it was now dead, and her written testimony was good evidence unless vitiated by being a precognition. It was only precognitions in cases then depending before the Court which were rejected. The leading cases on this subject were— Dysart Peerage case, 1881, L.R., 6 App. Cas. 489; and the Lauderdale Peerage case, 1885, L.R., 10 App. Cas. 692.

Counsel for the pursuer were not called on.

At advising—