Scottish Court of Session Decisions

David Allan Carlyle Auld, Glasgow, pursuer, brought an action of divorce for adultery with a man to the pursuer unknown against his wife Mrs Christina Pow Crawford or Auld, defender.

The pursuer averred that the alleged adultery took place on Friday 24th December 1920.

On 25th November 1921, after proof, the Lord Ordinary ( Hunter) assoilzied the defender.

Page: 192↓

Opinion.—“… The defenders' case is not merely a denial that she committed adultery on 24th December 1920 but an allegation that she spent that evening in a house at 35 Dover Street, Sandyford, Glasgow, being confined to her house with a sore ankle and leg. In support of this allegation she examined three witnesses, Mrs Grier with whom she boarded for several weeks, and Thomas Byrne and John Grimm. According to Mrs Grier the defender came to her house on Tuesday 21st December. She says—‘The defender was in very bad health and very poorly. When she came to stay with me her leg was so bad she could not walk across the floor.’ She is quite positive that the defender never left the house until the following Monday, when she went to get a payment of aliment from the pursuer's lawyer. This evidence is corroborated by Mrs Grier's two lodgers, Byrne and Grimm, who are in the habit of spending the principal part of their evenings in Mrs Grier's kitchen. In cross-examination Grimm explained that 24th December was his daughter's birthday, that he went out to buy her a present, and when he came home he saw the defender.

If the evidence for the defender is to be believed it is impossible that the M'Glynns could have seen the defender as they allege at 492 Gallowgate on 24th December 1920. What they speak to is not a brief visit of the defender to that place but to her having been there for a prolonged period of time. They say that the defender spent the night of 23rd December with Mrs Wright in her kitchen. Mrs M'Glynn adds that she saw her on Friday morning about ten o'clock before she left Mrs Wright's, and afterwards about three, and again about six o'clock, on both occasions in Mrs Wright's kitchen.

In support of the M'Glynns' evidence that the defender was at 492 Gallowgate on 24th December a number of witness were adduced.…

For the pursuer it was suggested that even if I accepted the evidence of the witnesses for the defence I might hold that adultery was committed by the defender on the Friday of the week preceding the 24th December. The defender admits that on the Thursday of that week she spent the night with Mrs Wright, and also admits that she saw Mrs M'Glynn the following day and requested the loan of money. She, however, denies being in the yard on the Friday evening. In certain cases it might be legitimate to take the course suggested by the pursuer's counsel, but I do not think that I am entitled to do so in the present case. If I thought that the defender's alibi was fictitious there would in this circumstance be some corroboration of the story told by M'Glynn, but if M'Glynn is speaking to something that occurred on a different day I think that there is an absence of sufficient corroboration to justify me in bolding the pursuer's case proved. On the 24th December the means available to the M'Glynns for identifying the people they saw on their landing appear to have been of an imperfect character, and it seems to me that they are as likely to have made error in identification as in date. The defender is proved to have been addicted to drink, but there is nothing to suggest that she was in the habit of making friends of men other than her husband. Except the M'Glynns no one speaks to having seen her in the company of any man on the occasion of the alleged adultery. On the whole I do not think that the evidence of the pursuer's witnesses is of a sufficiently clear or convincing character to justify me in holding that adultery has been proved. I shall therefore assoilzie the defender.”

The pursuer reclaimed and lodged a minute craving leave to recall and reexamine certain witnesses on the ground of res noviter.

The minute stated, inter alia—“2. That the defender denied the pursuer's said averment of adultery and averred that upon the date mentioned she was at 35 Dover Street, Glasgow, which is two miles or thereby from 492 Gallowgate. 3. That in support of the said alibi the defender led the evidence of three witnesses, viz., (1) Mrs Margaret Wallis or Grier, (2) Thomas Byrne, and (3) John Grimm, all residing at 35 Dover Street, who deponed that upon the said date and for several days before and after it the defender was unable to leave and in point of fact never left the house at 35 Dover Street aforesaid in which she was lodging with the said Mrs Grier. 4. That the Lord Ordinary accepted the evidence of the said three witnesses and came to the conclusion that it was therefore impossible that the witnesses for the pursuer could have seen the defender at 492 Gallowgate on said 24th December 1920, and that they must be mistaken either as to identification of the defender or as to the date on which they saw her. He therefore assoilzied the defender. 5. That since the date of the Lord Ordinary's interlocutor the pursuer has discovered that the evidence led for the defender in support of the said alibi is false.… The said Mrs Grier now admits that the said statements made by her in evidence were untrue, and that the defender did not leave her house on the evening of 21st December, but that she cannot swear as to the defender's movements or how often she was out after that day. A tested statement by the said Mrs Margaret Wallis or Grier is produced herewith.… 6. In an attested statement dated 21st February 1922 the said Thomas Byrne corroborates the statement made by the said Mrs Grier, and he states that he cannot swear as to the movements of Mrs Auld after the date she came to lodge with Mrs Grier. Said attested statement is produced.… 7. The said John Grimm has now given a tested statement dated 19th February 1922, in which he corroborates the truth of the statement now made by the said Mrs Grier. His statement is produced.… 9. The facts above condescended on were unknown to the pursuer, and could not by reasonable diligence have been discovered by him prior to the proof. The pursuer accordingly craves, in respect that these facts are res noviter veniens ad notitiam, to be allowed to add this minute

Page: 193↓

to his pleadings, to open up the proof in order (first) that the said Mrs Margaret Wallis or Grier and John Grimm and Thomas Byrne may be recalled and re-examined.”

Argued for the pursuer—The averments made in the minute amounted to a new fact, and in an action involving a question of status the Court would be more ready to admit evidence of this character— Elder v. M'Lean, 1829, 8 S. 56; Gairdner v. Macarthur, 1915 S.C. 589, and per Lord Salvesen at p. 594, 52 S.L.R. 427; Balfour Kinnear v. Balfour Kinnear, 1919 S.C. 391, 56 S.L.R. 282; Johnston v. Johnston, 1903, 5 F. 659, and per Lord Kinnear at p. 662, 40 S.L.R. 499.

Argued for the defender—The discretion of the Court in opening up a proof on the grounds alleged would be very sparingly used. The statements in question amounted to no more than signed precognitions made to an interested party, and the pursuer could have examined the witnesses before the proof as to whether the statements were true or not. It was in the interests of justice that there should be an end to litigations— Lockyer v. Ferryman, 1877, 4 R. (H.L.) 32; Brown v. Gordon, 1870, 8 Matcph. 432, 7 S.L.R. 257; Snodgrass v. Hunter, 1899, 2 F. 76, 37 S.L.R. 60; Gilmour v. Hansen, 1920 S.C. 598, 57 S.L.R. 518; Longworth v. Yelverton, 3 Macph. 645, and per Lord President Inglis at p. 649.