A B v C D

Ld. Cockburn , Lord President , Lord Gillies , Lord Corehouse , Lord Mackenzie .

Subject_ Divorce—Process—Oath of Calumny.— Headnote: In an action of divorce, raised by a party resident in India, instruction given by the Court, on the oral report of the Lord Ordinary, to grant commission to take his oath de calumnia, in India.

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.

Lord President .—I am satisfied that the statute need not, and should not he so construed as to deny justice to persons situated like the pursuer. Either it must be in our power to dispense with the oath of calumny, or to grant commission for taking it abroad. I think the commission should be granted. I do not see any difficulty in granting it.

Lord Corehouse .—When I was in the Outer House I had occasion repeatedly to grant commission for taking the oath of calumny. Had this been refused, nobody abroad could have got a divorce, whatever injury he might have suffered, and however well founded might be his right to that remedy. In one case an excise officer showed cause for not appearing to take the oath, and I granted commission. I think in that case the point was fully considered, and was discussed by the parties in minutes of debate.