Scottish Court of Session Decisions

Lord Cockburn, Ordinary, reported orally an incidental question, which had occurred in a process of divorce. The pursuer was a Scotsman who had married in Scotland, and had raised an action of divorce, in which no appearance was made for the defender. He was resident in India, and, on moving for a commission to take the oath of calumny there, it was stated to the Lord Ordinary that a difficulty had arisen in such cases, under the terms of 1 Will. IV., c. 69, which authorized the institution of actions of divorce, and other consistorial actions, in the Court of Session. It was provided by § 36 of that statute, “That the Lord Ordinary shall, in all actions of divorce, administer the usual oath of calumny to the pursuer.” These words, it was submitted, might import that the oath must be administered by the Lord Ordinary himself; and this difficulty having been stated, his Lordship had thought it best to ask the direction of the Court for the sake of settling the practice, and had, therefore, reported the case. His Lordship added, that several commissions had already been granted, where the pursuer showed special cause, such as sickness, &c, for not appearing in Court. But in all these cases, the pursuer had been within Scotland.

The pursuer submitted, that the words of the statute did not render it imperative that the Lord Ordinary should personally administer the oath; and that they should not be so construed because it would amount to an absolute denial of justice in the present instance, and in all others where a pursuer was resident abroad and could not come to Scotland.