COUNSEL:

 

SOLICITORS: For the Appellant: Simson & Wakeford.

For the Respondent: Tippetts & Son.

 

JUDGES: The Lord Chancellor, Lord Cranworth, Lord Westbury and Lord Colonsay.

 

DATE: 1867 July 30.

 

 

Reference to Oath of Party.

 

In Scotland there may be a reference to oath at any time between the closing of the record and the extracting of the decree, although every other mode of proof has been previously tried and has failed.

 

Even after a judgment of the House of Lords on appeal a reference to oath is competent, and continues so till extract.

 

Such reference, however, is matter of judicial discretion, and not to be permitted where the status, the rights, or the interests of third parties may be prejudiced or affected.

 

The true principle is, to settle the immediate question between the parties litigant, and to go no further.

 

A reference to oath ought not to be permitted where the response may involve an admission of criminality; for no one is bound to swear in suam turpitudinem.

 

As to whether a reference to oath is competent in a declarator of marriage, see the opinions of the Lord Chancellor, infra, p. 220; of Lord Cranworth, infra, p. 226; and of Lord Colonsay, infra, p. 227.

 

Practice.

 

At the close of the Respondent’s argument the Appellant, who had opened her case in person, was told that the House would hear her Counsel in reply. But if she began she must finish. The House would not allow her to break off and then hear her Counsel.

 

ON the 7th of August, 1858, Maria Theresa Longworth, or Yelverton (who, for the sake of brevity and distinctness, will be hereafter, in this report, called Maria Theresa only), commenced her suit in the Court of Session, praying a declaration that she was the lawful wife of Major Yelverton.

 

On the 8th of June, 1859, Major Yelverton brought his cross action in the same tribunal against Maria Theresa, praying a [*219] declaration that he was “free of any marriage with her, and that she should be put to silence.”

 

The Court of Session (First Division) ultimately pronounced judgment in favour of Maria Theresa with costs. In other words, they declared that she “was the lawful wife of Major Yelverton;” – the Lord President, now Lord Colonsay, dissenting.

 

Against this decision Major Yelverton appealed to the House of Lords.

 

On the 28th of July, 1864, their Lordships reversed the decision appealed from, and remitted the cause back to the Court below, to do therein as should be just and consistent with the judgment of the House(1).

 

Before the question was put from the woolsack the counsel of Maria Theresa asked and submitted that the judgment of the House should leave it open to her, if she should be so advised, to refer the points at issue to the oath of Major Yelverton. The House, however, did not accede to this application(2).

 

On the 19th of November, 1864, Major Yelverton presented his petition to the Court below praying that the judgment of the House should be applied.

 

On the 10th of December, 1864, the counsel of Maria Theresatendered a reference of the whole cause to the oath of Major Yelverton.

 

After due consideration of printed and oral argument as to the competency and the propriety of this application, the Court below ultimately, on the 10th of March, 1865, refused to allow the reference proposed; and it was against this refusal that the present appeal was tendered.

 

On the 27th of June, 1867, the case stood in the paper for hearing; the Law Peers present being the Lord Chancellor, Lord Cranworth, Lord Westbury, and Lord Colonsay.

 

THE LORD CHANCELLOR, addressing Maria Theresa, said:– I thought you were to appear by counsel.

 

Maria Theresa:– My counsel is not here.

 

THE LORD CHANCELLOR:– If he is likely to come, we should be

 

(1) 4 Macq. 747.

 

(2) 4 Macq. 746 and 911. [*220] sorry to deprive you of the benefit of counsel. But you perhaps prefer addressing the House yourself.

 

Maria Theresa:– Yes, my Lords.

 

The address of Maria Theresa went over several days.

 

The Attorney-General(1) and Mr. Anderson, Q.C., were heard on the other side.

 

At the close of their argument it appeared that the counsel of Maria Theresa, Mr. Campbell Smith, had arrived from Scotland.

 

It was, therefore, intimated to Maria Theresa that her counsel might reply, Major Yelverton’s counsel not objecting; and the Lord Chancellor (after a reference to the other Law Peers) observing:– If you are unable to go through the reply yourself, we think, under the circumstances of this exceptional case, that we may hear your counsel. But if you begin you must finish. We cannot allow you to break off and then hear your counsel.

 

Maria Theresa:– He is not prepared to reply.

 

THE LORD CHANCELLOR – Then you must go on yourself.

 

At the close of Maria Theresa’s argument the Lord Chancellor said the House would take time to consider of its judgment.

 

On the 30th of July the Law Peers delivered the following opinions, which more than exhaust the authorities and arguments adduced at the Bar.

 

THE LORD CHANCELLOR(2):–

 

My Lords, on the 19th of November, 1864, Major Yelvertonhaving presented the usual petition to the Court of Session to apply the judgment pronounced by your Lordships on the former appeal, the present Appellant, Maria Theresa, lodged a note praying the Court to supersede consideration of the Major’s petition, and craving leave to put in a condescendence of res noviter veniens ad notitiam. The proposed condescendence alleged

 

(1) Sir John Rolt.

 

(2) Lord Chelmsford. [*221]

 

that since the judgment of this House(1) “she had been informed that Major Yelverton, when on a visit to his deceased brother, the Honourable Frederick Yelverton, in the presence of Sarah Mallins, who was at the time attending the brother as a sick nurse, acknowledged and admitted that he had married Maria Theresa in Scotland, and renewed his marriage vows in Ireland; that Sarah Mallins died in the Meath Hospital; and that when she was in a dying state, and attended by the Reverend Edward George Campbell, she told him what had passed between the two brothers, and he communicated it to Maria Theresa.”

 

The Court below, after argument, pronounced an interlocutor on the 10th of December, 1864, by which they refused the desire of Maria Theresa’s note, and applied the judgment of this House.

 

After this interlocutor a minute of reference to oath was tendered on behalf of Maria Theresa, which minute was in the following terms: “The Pursuer in the said declarator of marriage hereby refers the whole cause to the oath of the Defender, the said William Charles Yelverton;” and a Petition was presented praying the Court to sustain the minute of reference to oath.

 

The First Division, on the 10th of March, 1865, pronounced the interlocutor now appealed from, refusing to sustain the proposed reference to Major Yelverton’s oath.

 

Now, my Lords, it must be taken as a settled rule of law in Scotland, that there may be a reference to the oath of a party at any time between the closing of the record and the extracting of the decree, although every other mode of proof has been previously tried and has failed. And however strange it may appear to those who are unaccustomed to the practice of the Scotch Courts, that a party having attempted to prove a case by testimony, and having failed, should be allowed, almost at the last moment, even after final judgment, to resort to a new method of proceeding of which he had his choice from the first, yet, such being the law, we are bound not to question but to administer it.

 

The reason why this reference to oath is allowed at so late a stage of the proceeding seems to be, that until judgment is extracted the cause is still in Court. This being so, there can be no difference in principle between the case where a judgment is

 

(1) On the 28th of July, 1864. [*222]

 

final in the Scotch Courts because not appealed from, and the case of a final judgment by this House, which equally requires extract before execution can issue.

 

But it was contended on the part of Major Yelverton that a reference to oath is inadmissible in a case of declarator of marriage, and especially where, as in this case, the interests of third persons are concerned.

 

With respect to the competency of a reference to oath in a declarator of marriage, I am strongly of opinion that, whatever may have been the practice formerly, since the statute 11 Geo. 4 & 1 Will. 4, c. 69, such a proceeding is incompetent. The 33rd section of this Act enacts, “that all actions of declarator of marriage,” and other enumerated consistorial actions, “shall be competent to be brought and insisted upon only before the Court of Session.” And, by the 36th section, “no decree or judgment in favour of the Pursuer shall be pronounced in any of the consistorial actions therein before enumerated, until the grounds of action shall be substantiated by sufficient evidence.”

 

In the case of Muirhead v. Muirhead (1), which was an action of separation à mensâ et thoro, brought by a wife on the ground of ill-usage, the husband admitted on the record conduct which, in the opinion of the Lord Ordinary, was sufficient to justify the conclusions of the action. Upon the case coming before the Court upon a verbal report by the Lord Ordinary for instructions, Lord Mackenziesaid, and the rest of the Court concurred, “I read the words ‘sufficient evidence’ as meaning sufficient evidence independent of the admissions of the party. I think the Act meant entirely to exclude admissions, and require extrinsic evidence.” Now it is quite clear that an admission upon the record can never be regarded as evidence; but the Court could not have meant to say, that if proof had been led in the case, admissions proved to have been made by the husband that he had ill-used his wife would not have been evidence, and might not have been “sufficient evidence.” But an oath upon reference is not evidence at all. As my noble and learned friend, Lord Colonsay, said in this case in the Court of Session: “A reference to oath is not what we are accustomed to regard as testimony proper. It is neither parol nor

 

(1) 8 Dunlop, 786. [*223]

 

documentary evidence. An oath taken upon a reference is not the examination of a witness, it is what is technically called oath of party.” And again, “It is not to be taken in connection with documentary or parol evidence that has been adduced. It may be hostile to all other evidence. It is to be judged by itself, and the question for the Court to determine, upon an oath emitted under a reference, is not what upon the aspect of the whole cause appears to be the truth of the matter, but it is, what has the party sworn?” As a party by referring to the oath of his adversary renounces all other species of proof, and as the “oath emitted under a reference” is not evidence, a decree pronounced in a declarator of marriage founded upon this mode of proceeding, would be a violation of the express words of the statute, as the grounds of the action would not have been substantiated by “sufficient evidence.” A reference to oath, therefore, cannot, in my opinion, be competent in this description of action.

 

But supposing a reference to oath to be admissible in an action of declarator of marriage, it ought not to be permitted in any case where the rights and interests of third persons would be prejudiced by a decree founded upon an oath affirmative of the reference. That would be the necessary consequence of such a decree in the present case.

 

It appears upon the record that, after the time of his alleged marriage with Maria Theresa, Major Yelverton was married in June, 1858, in Edinburgh, to Mrs. Forbes, the widow of Professor Forbes. A decree, therefore, establishing the validity of the marriage of Maria Theresa and Major Yelverton, must necessarily deprive Mrs. Forbes of the status which she acquired by her marriage with Major Yelverton. And this consequence would be the result of what is called a “transaction” or “judicial contract” between persons engaged in a litigation to which she is no party.

 

It was said, however, by Maria Theresa, that the reference to oath could not prejudice Mrs. Forbes, because the oath affects the parties to the transaction only; and that no judgment on it could be res judicata against her, being res inter alios acta. It is quite true that the oath of reference would not affect third persons; but there may be cases in which it must, of necessity, prejudice, if not conclude, the rights of strangers to the proceeding. In such cases [*224] the reference to oath is not admissible, for, as was said by Lord Moncreiff, in Adam v. Maclachlan (1), “the general case of reference to the oath of party is, where the party referring and the party referred to stand with opposed interests on the matter referred, and where no other interest is involved.”

 

Upon this point I may borrow the language of Lord Stowell in Dalrymple v. Dalrymple (2), where he says:–

 

“The lady of the second marriage is not here made a party to the suit. She might have been so in point of form if she had chosen to intervene. In substance she is; for her marriage is distinctly pleaded and proved, and is as much, therefore, under the eye, and under the attention, and under the protection of the Court as if she were formally a party to the question respecting the validity of this marriage, which is, in effect, to decide upon the validity of her own. For I take it to be a position beyond the reach of all argument and contradiction, that if the first marriage be legally good, the second marriage must be legally bad.”

 

If upon the oath of reference in this case a decree were made establishing the marriage of Maria Theresa and Major Yelverton, there can be no doubt that it would be binding upon Mrs. ForbesIt would be a judgment in rem, which has been defined to be “an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose”(3); and the characteristic quality of a judgment in rem is, that it furnishes in general conclusive proof of the facts adjudicated, and is binding on all persons whomsoever. If, therefore, the reference to oath were to be admitted in this case, Mrs. Forbesmight be deprived of her status as a wife by a decree made behind her back, and which she would never afterwards be able to question.

 

But there is a further objection to the reference to oath in this case, that the answer to it in the affirmative (an answer which Maria Theresa must be taken by her reference to expect to receive) necessarily involves an admission by Major Yelverton of criminality. If he were to admit the alleged marriage between himself and Maria Theresa, he must confess that he has been guilty of bigamy. And this necessary effect of an affirmative answer plainly appears upon the record, where his marriage with Mrs. Forbes, at a date subsequent to the time of his alleged marriage

 

(1) 9 Dunlop, 560.

 

(2) 2 Con. 58.

 

(3) 2 Smith’s Leading Cases, 439. [*225]

 

with Maria Theresa, is pleaded, Maria Theresa says, in her printed case:–

 

“There are cases in which a reference to oath was refused on the ground that a party should not be compelled to swear in suam turpitudinem. But all these cases were prior in date to the Act 1 Will. 4, c. 37, the 9th section of which abolished infamy as a ground of incompetency of a witness. The Act 15 & 16 Vict. c. 27, further removes all impediments to the admissibility of the evidence of persons convicted of crime. In the present state of the law of evidence it is obvious that in the cases of Rogers (1), McEacharn (2), and Thomson (3), the parties who were not obliged to swear in suam turpitudinemwould now be competent and compellable witnesses in similar cases, with the option of declining to answer any question that might criminate themselves.”

 

Such is the argument of Maria Theresa upon this point, which leaves out of view one very important consideration, namely, that although the party in a case of reference to oath may refuse to answer if thereby he would criminate himself, yet the effect is, that he is taken to have confessed the facts which are referred to his oath, and exactly the same benefit results to the party making the reference as if he had obtained an affirmative answer. In the present case, therefore, Major Yelverton, if he answered affirmatively, would have admitted himself to have been guilty of bigamy, or if he had refused to answer, Mrs. Forbes would have been conclusively deprived of all the rights which she had acquired by her marriage with Major Yelverton.

 

There can be no doubt that a reference to oath is not the absolute right of a party, but that it is in the equitable discretion of the Court to admit or to refuse. Lord Moncreiff, in the case of Pattinson v. Robertson (4), said: “I could not perhaps go quite so far as Lord Cringletie did in the case of Ritchie (5), though in that approved by Lord Chancellor Lyndhurst, that the reference to oath is in our law a mere appeal to the equitable discretion of the Court. But I agree so far, that though regarding it as a legal right to appeal by motion to the Court to that mode of proof as an ultimate remedium, it may still be in the discretion of the Court to allow it under the circumstances of any particular case.”

 

Now, assuming that there may be a reference to oath in an

 

(1) 2 Shaw, 444.

 

(2) 3 Ibid. 9.

 

(3) 7 Shaw, 32.

 

(4) 9 Dun. 226.

 

(5) 3 Wils. & Sh. 484. [*226]

 

action of declarator of marriage, yet where, as in this case, the interests of a third person are affected, and may be irrevocably bound, and where the effect of the reference may be either to compel the confession of a crime, or to conclude the rights of another by a refusal to answer, I think that the Court of Session were perfectly justified, in the exercise of a sound judicial discretion, in refusing to sustain the reference to oath in this case, and that their interlocutors ought to be affirmed.

 

LORD CRANWORTH:–

 

My noble and learned friend on the woolsack having had the goodness to communicate to me an outline of the opinion which he was about to deliver in moving the judgment of your Lordships’ House, and concurring, as I do, with my noble and learned friend in the whole of that opinion, I do not think that I am called on to trouble your Lordships with many – I might, perhaps, say with any – observations. I wish it, however, to be understood that, though my learned and noble friend has referred to the statute of 11 Geo. 4 & 1 Will. 4, transferring the consistorial jurisdiction in Scotland to the Court of Session, as being, in some respects, the foundation of his judgment, and although it may be very truly said that that statute confirms the view which may be otherwise taken an the subject, I must confess that, independently of that statute, I do not believe that it can be the law of Scotland that, in such a case as this, there should be a reference to oath. The principle on which that reference is allowed is so clearly stated by Lord Moncreiff, in the passage quoted by my noble and learned friend, that I should be willing to rest my opinion on that authority, even if the statute had not existed. “The general case,” he says, “of reference to the oath of party is where the party referring and the party referred to stand with opposed interests on the matter referred, and where no other interest is involved”(1). When that is the case, there is, perhaps, no absurdity (so to say), even at the very last moment of time, in allowing a reference to the oath of the party. But the moment you get a case in which the interests of third parties are involved, it appears to me to be a proposition

 

(1) Adam v. Maclachlan, 9 Dun. 578. [*227]

 

that cannot be sustained, even upon the authorities which have been referred to, that such can be the law of Scotland, or of any civilized country. There is no doubt that there have been consistorial cases in which a reference to oath has been admitted; but there has been no such case in which the doctrine has been affirmed by this House; and I cannot admit that it could have been properly recognised and acted upon in those cases, if they involved (as I believe some of them did) the interests of third persons, as is certainly the case here. Even if there had been no marriage with Mrs. Forbes, I very much doubt whether, in any case of a question of status, there can be such a reference to oath, because the interests of third parties are necessarily involved. When the question is, whether a person is or is not a married woman, the interests of all the creditors who have trusted her must be involved. Therefore, I think, general principle goes far to exclude it in all cases. But even if that were not so, the last observation of my noble and learned friend seemed to me to be perfectly satisfactory – namely, that it is clear on all the authorities that such a reference is not the absolute right of any party, but only a right which the Court, in its discretion, may or may not allow; and it would have been a highly-improper exercise of its discretion to have allowed it in this case.

 

LORD WESTBURY:–

 

My Lords, it is not my intention to give any vote on this question, as I was compelled to be absent during part of the argument. But I had the advantage of hearing the whole of Maria Theresa’s address; and I am obliged to say that the impression which I then received was that there was no ground on which this judgment of the Court below could be questioned.

 

LORD COLONSAY:–

 

My Lords, after the expressions of opinion which have now been given, this case is practically decided. Whatever view I may have of it – whatever view I may express, if I express any opinion at all – the judgment must be the same. But, my Lords, in a case of this kind, which I view as one of vast importance to the law of [*228] Scotland, I think it incumbent on me to express the opinion that I entertain.

 

When the case was presented to the Court below, the novelty of the proposition of a reference to oath in such a case appeared to me so great that I thought it right, after having heard a full oral argument on the subject, to suggest that the parties should again lay before the Court the argument in a written form, in order that it might be deliberately considered; and it was after having had the benefit of those two discussions (as I may call them) upon it that I arrived at the conclusion that the proposal of the Appellant, to refer this matter to the oath of the Defender, was one which, under the circumstances, could not be admitted. Since then the question has been fully argued at the bar of this House, and I deemed it my duty to revise and reconsider the opinion which I had formed, feeling that, perhaps, the Appellant had not had all the benefit she might have derived had she selected a different mode of conducting her case.

 

Having again applied my mind to the case, I have failed to find any ground for altering the judgment that has been pronounced in the Court below.

 

It appears to me to be a clear proposition in the law of Scotlandthat in most cases (I will not, after what has been expressed, say in all cases, but in most cases) a party may apply to have a reference to the oath of the adversary after the case has been decided. Whether that is, or ought to be, the rule in cases of declarator of marriage, may be a grave question. But in a case such as this, and, indeed, in all cases, where reference to the oath of a party is proposed, there is a discretionary power in the Court to allow the reference, or not to allow it. The very form of the proceeding implies that; because when it is proposed to refer to the oaths of the adversary the proposal is submitted to the Court, and it requires the approval of the Court before the adversary can be put to oath. Therefore, the Court is forced to consider the matter on the proposition which is submitted to it before it can give its approval. And that approval is a matter not limited to the mere form in which the reference is presented – it involves also a consideration of the circumstances of the case and the propriety of allowing the reference. That is clear from all the authorities, and [*229] from some of the cases which have been referred to by my noble and learned friend on the woolsack.

 

That being so, the question which we had to consider was, whether this was a case in which such a reference to oath should be allowed. There, again, several questions were raised. First, as to the competency of reference under such circumstances; and, secondly, as to the propriety of the Court exercising its discretion in the way of allowing or refusing the reference, even supposing it to be competent.

 

Upon the question of the competency of the reference I do not think it is necessary for me to express any decided opinion. There were certain objections taken to the competency of the reference which I thought at the time, and still think, to be unfounded. In the first place, it was objected that this reference could not be made, because there had been a final judgment of the House of Lords in the cause. I was unable to bring my mind to that conclusion. I was unable to see any logical distinction between the power of the Court below, after a final judgment of this House, affirming the judgment of the Court below, and the power of the Court below, if its own judgment had been allowed to remain unappealed against; for the rule is, that at any time before extract reference is good. When a party has lost his cause in the Court below and has appealed to this House, and this House has affirmed the judgment, I can conceive a very good reason, in policy, why, in such circumstances, a reference to oath should not be allowed; but when a party has gained the cause in the Court below, and the adversary drags that party here and gets an alteration of the judgment, why should the party be precluded in that case from referring to oath. She could not have done it in the Court below in the circumstances in which she then was, for she had gained her case. Therefore, I think it would be a hazardous doctrine, and one which I could not acquiesce in, to hold that merely because there had been a judgment of the House of Lords in the case – therefore a reference to oath was incompetent.

 

Another point was raised, as to which I have more difficulty, as to whether a party can be allowed to refer to oath in a suit of this kind, looking at the terms of the statute of 11 Geo. 4 & 1 Will. 4, c. 29, I did not think it necessary in the Court below to pronounce any [*230] judgment on that point, because I saw sufficient grounds without it to arrive at a conclusion upon the case. And though I see great force in the argument, I would rather now not commit myself to any opinion on the point. There is much to be said in favour of the view that the statute has shut out such references in cases of declarator of marriage and other consistorial causes. But that depends on the meaning that is to be attached to the word “evidence” in that statute, and to the meaning that is to be attached to the word “admission” in Lord Mackenzie’s judgment(1). There is great room for holding that in Lord Mackenzie’s judgment, at least, the word “admission” meant an admission by the party upon the record; that is to say, that the party merely putting on the record admissions, is not enough to entitle the Court to proceed to pronounce judgment in a declarator of marriage. That is not evidence given under the sanction of an oath. According to the course of procedure in the Courts in Scotland, where a matter is admitted the opposite party does not require to adduce evidence to prove it. And we know that in consistorial cases of various kinds it would be perilous to the interests of society to proceed upon admissions made by the parties. There was a case under our consideration in this House which, I think, affords an illustration of what might happen if such matters were admitted. I mean the case of Cunningham v. Cunningham (2). In that case, where a party had, during the life of a woman, and at her death, shewn by his conduct, and where the whole circumstances of the case, as judged in this House, had shewn, that there had been no marriage whatever between the parties; yet, after an interval of time, when it became his interest or inclination to change the state of affairs, he then chose falsely (as the judgment of the House found) to allege a marriage. Now we see what peril would attach to the interests of third parties if a reference to oath were admitted in such cases.

 

Another ground was contended for, namely, that by requiring the party to swear in this case he was required to swear in suam turpitudinem. That is, I think, a graver question. I think there is much in it, as I stated in the Court below.

 

But when we come to the question, whether the Court is to

 

(1) Muirhead v. Muirhead, 8 Dun, 786.

 

(2) 2 Dow. 483. [*231]

 

exercise the discretion that belongs to it, I confess that I see every principle against sustaining the reference, and no principle in favour of it. I think it is quite clear that such a rule as referring to the oath of a party after a case has been fully investigated is one which, if it exists in any system of jurisprudence at all, must be guarded with a discretionary power of the Court to prevent its being abused. That discretionary power exists with reference to the administration of this branch of the law in Scotland. And when we come to look to the principle on which reference to oath is admitted, I quite concur in the view that has been expressed by my noble and learned friend, that the true principle is to settle the immediate question between the two parties in contest, and to go no farther. Now, if the question in a suit between two parties be one which necessarily involves the interests of a third party, if it be of a kind that the settlement of the question between these two parties would, or might, greatly injure the interests of a third party, then I think it questionable, in the first place, whether such a reference to oath would be competent; but I also think it quite clear that any exercise of judicial discretion ought to go in the direction of preventing such risk of injury to a third party.

 

Upon these grounds, my Lords, I am quite clear that the judgment of the Court below ought to be affirmed. If, on hearing the argument, I had entertained any doubt on the question, or had come to a conclusion opposite to that to which I arrived in the Court below, I certainly should not have hesitated to concur, as I did in a former case in this House, in altering the judgment which I had pronounced in the Court below; but I see no reason to entertain any doubt whatever in this case.

 

Interlocutors affirmed.