Sisting a Mandatory.-Either a pursuer or defender in a consistorial cause may be required to sist a mandatory if absent from the United Kingdom. Since the Judgments Extension Act, 1868, by which a decree pronounced in Scotland may be enforced in England or Ireland, a mandatory will not be required unless other cause be shown than the mere fact of residence in those countries.1 A wife absent from the country, pursuer in a divorce, and having no separate estate, was held not bound to sist a mandatory.2 It is entirely in the discretion of the Court, and now-a-days a defender is not in the general case required to sist a mandatory although resident out of the United Kingdom. In consistorial causes which concern status, it is especially desirable that a defender should appear in order that the facts may be brought out. Accordingly in a recent case, where the defender was in embarrassed circumstances, and it appeared that the effect of the order would be that the action would be undefended, the Court declined to order him to sist a mandatory.3 Where, as in this case, the defender takes the plea of no jurisdiction, this will be an additional reason for not requiring a mandatory. 1 Lawson's Trs. v. Brit. Linen Co., 1874, 1 R. 1065; N.B. Railway Co. v. White, 1881, 9 R. 97. Oath of Calumny.-The Act 11 Geo. IV. and 1 Will. IV. c. 69, § 36, provides that "the Lord Ordinary shall in all actions of divorce administer the usual oath of calumny to the pursuer." In practice it continues to be administered also in actions of declarator of nullity of marriage, when the ground alleged is impotence.1 The oath may be taken to lie guilty of adultery (or that she (or he) has wilfully deserted him (or her)), and that the facts stated in his (or her) libel, which has been read over to him (or her) are true. Depones that there has been no concert or collusion between him (or her) and the said defender in raising this action in order to obtain a divorce, nor does he (or she) know, believe, or suspect that there has been any concert or agreement between any other person on his (or her) behalf, and the defender or any other person on her (or his) behalf with the view or for the purpose of obtaining such 2 Campbell v. C., 1854, 17 D. 514. 3 D'Ernesti v. D'E., 1882, 9 R. 655. 4 The form of oath is: At Edinburgh, the day of of the Hon. Lord In presence , compeared the pursuer who being solemnly sworn and examined de calumnia, depones that he (or she) has just cause to insist in the present action of divorce against the defender (his spouse or her husband), because he (or she) believes she (or he) has been in retentis if the pursuer is going abroad. And this may be done although the summons has not yet been called.1 Where the pursuer is abroad and unable to attend, a commission may be granted to take the oath of calumny.2 Identification of Defender. Where the action is undefended, it may be necessary for the pursuer's case to have the defender present in order to be identified by witnesses. And an order may be pronounced commanding his attendance. "The Lord Ordinary appoints the defender to appear at the proof on the day of next, for identification." A defender disobeying such an order may be compelled to attend by letters of second diligence, and may be apprehended and brought in custody. In one case where such an order had been disobeyed, counsel for the pursuer proposed to show a photograph of the defender to the witnesses. This was objected to as secondary evidence, and the objection was sustained by Lord Fraser. But in a later case Lord Trayner declined to follow this precedent, and pointed out that it would be unjust to the pursuer to adjourn the proof at the last moment, and that the defender could not object to the use of secondary evidence, seeing the necessity for its use arose from his own fault.1 Res Judicata. -It was a rule of the canon law that a judgment against the validity of a marriage never became final. Id in matrimonium speciale est, ut sententia in con divorce. All which is truth, as the Et si quaeretur verum, non inficietur. Nil promittetur, nec falsa probatio detur. Ut lis tardetur, dilatio nulla petetur." These mediæval mnemonics are misprinted in Paul v. Laing, 17 D. 604, a case in which the history of the oath of calumny may be studied. 1 Scott, 1866, 4 M. 1103. 2 Orde v. Murray, 1846, 8 D. 535. CRUELTY-REDUCTION. 321 jugali causa lata . . . nunquam transeat in rem judicatam." The reason appears to have been that the spiritual Court would be encouraging a sin if it compelled two persons to live apart whose marriage might be proved to be lawful in spite of a former decision. The Church Court was concerned with the spiritual weal of the parties, and its decisions were pro salute animae. This rule was not adopted by our law, or, at anyrate, was not recognised after the transfer of jurisdiction in consistorial causes to a purely civil tribunal.2 It is settled by the case of Lockyer that a decree in a consistorial cause is res judicata, and stands until reduced. Cruelty found a good defence to an action of divorce for desertion, is not res judicata as a ground of separation and aliment. In an action of divorce by a husband on the ground of desertion, his wife successfully pleaded that she was not bound to adhere on account of his cruelty. She consequently raised an action for separation and aliment, and maintained that it was unnecessary for her to lead evidence as to her husband's cruelty, that being res judicata in the action for divorce at his instance. But this plea was repelled by Lord Fraser, whose judgment was adhered to.3 One of the grounds assigned was that the res was not the same, because less cruelty would justify non-adherence than would ground an action of separation. This, it is humbly thought, is doubtful, though supported by dicta in the recent case of Mackenzie v. Mackenzie. But another ground given seems clear-viz., that the defender in such a case should have an opportunity, if he think fit, of adducing other evidence than that which he produced in the previous case. Reduction. The fact that evidence must be led for the pursuer in consistorial causes even where no defences are lodged does not prevent the decree being regarded in that event as a decree in absence. It may be set aside by a reduction, at anyrate within year and day.5 Lord Fraser 1 Sanchez, lib. 7, Disp. 100; Burge's Commentaries, i. 183, where the whole passage is cited. 2 Lockyer v. Ferryman, 1876, 3 R. 882, aff. 1877, 4 R. H.L. 32. 3 Steven v. S., 1882, 9 R. 730. 4 1893, 20 R. 636; see Juridical Review, vol. v., p. 143. 5 Stewart v. S., 1863, 1 M. 449. Y thinks reduction is competent until twenty years after decree, in virtue of the Court of Session Act, 1868 [31 & 32 Vict. c. 100, § 24]. But this is still unsettled. It is thought that the rule of the consistorial Court, which excluded review of a decree in absence after year and day, has never been repealed. But no lapse of time would bar a reduction on the ground of fraud, as-e.g., by subornation of perjury, provided the action be brought as soon as the fraud comes to light. Is an Allegation that the Witnesses at the First Trial perjured themselves a relevant Ground of Reduction ?— This question is not settled, but the weight of principle and authority is against allowing a proof where it is not averred that the witnesses who spoke falsely were bribed to do so.1 In a recent case a wife who had been divorced for adultery raised a reduction on the ground that material evidence against her was perjured, and that the witnesses had been bribed to give false evidence by a detective in the employment of her husband, The Court allowed a proof before answer of the averments of subornation, and the pursuer having failed to establish these, they held, adhering to a judgment of Lord Fraser, that the averments of perjury were irrelevant, and dismissed the action. It was, however, suggested by Lord Young, who gave the leading judgment, that there might be very exceptional circumstances in which the relevancy of averments of perjury would be sustained.5 In a Special Case Reponing may be Allowed.-A wife brought an action of separation and aliment. The summons was served personally on the husband, and notice of the day of proof was sent him by registered letter. He did not appear at the proof, and decree was pronounced against him. husband then lodged a reclaiming note. The It was pleaded that this was incompetent, and that his only remedy was to raise a 1 Fr. ii. 1238. 2 Menzies v. M., 1835, 14 S. 47; Lockyer (1876), sup., opinion of L. Craighill, at p. 889, and Lord Gifford, p. 911. But L.J.C. Moncreiff, at p. 898, and L. Ormidale, at p. 902, doubt whether the rule exists, and the point was not decided. 3 See opinion of L. Hatherley, in Lockyer, 4 R. H.L., at p. 39, L. Blackburn, at p. 43. 4 Per L. Gifford in Lockyer, 3 R., at p. 912; L.C. Cairns, ibid., 4 R., at p. 35. 5 Begg v. B., 1889, 16 R. 550. CUSTODY-CONFESSIONS. 323 reduction. The husband stated that he had no funds to instruct counsel, and was out of Scotland at the date of proof. The Court remitted to the Lord Ordinary to repone the defender upon such terms as to his Lordship should seem fit.1 Custody. Means of compelling Return to Jurisdiction. -It is not decided whether, where a party has left the jurisdiction, and is in disobedience to the orders of the Court, property belonging to him, which is within the jurisdiction, may be seized in order to compel obedience. Ill.—A husband petitioned for the custody of two children, and alleged that his wife had left the country with them, and that he was unable to discover her address. He also presented a supplementary petition craving the Court to sequestrate the separate income of his wife under her marriage-contract, in order that she might be compelled to return to Scotland. The competency of the petition was discussed, and it was argued that it was without precedent and amounted to a new form of diligence. It was found unnecessary to determine the question, as the wife returned to Scotland.2 Interim Custody. Whether Petition should be to Lord Ordinary or to Inner House.-The Conjugal Rights Act, 1861, § 9, provides for the Court making interim orders as to custody, pending the issue of an action of separation or divorce. This does not take away the nobile officium of the Inner House, and a petition to them to make such an order is not incompetent. But, unless on special cause shown, the Court will decline to make an order, on the ground that it is more convenient that the petition should be presented to the Lord Ordinary, who, from his knowledge of the divorce or separation proceedings, is in a better position to decide which parent is entitled to the interim custody.3 Weight to be attached to extra-judicial Confession of Defender. As stated in an earlier part of this work, great weight will naturally be assigned to confessions of guilt volun 1 Whyte v. W., 1891, 18 R. 469. R. 293. 4 p. 47, supra. |