Watson v Watson
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1934 |
| Docket Number | No. 43. |
| Date | 20 March 1934 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Lord Wark.
EvidenceWritten evidencePrivate writingsAdmissibilityDivorce for adulteryTorn-up draft letter in defender's handwriting found in open bureau.
In an action of divorce for adultery brought by a husband against his wife, the pursuer averred that he had discovered, in an open bureau in the drawing-room of the house in which he and the defender were then residing, a torn-up draft letter from the defender to the co-defender and an envelope addressed to the co-defender, and that the letter, which was couched in passionate terms, was in the defender's handwriting, and referred to the period of the alleged adultery. The defender,who denied adultery, pleaded that the Pursuer's averments relative to the letter and envelope were irrelevant, and should not be remitted to probation.
Held that the mere facts that the letter in question had not been dispatched or that it had been torn up were not sufficient to render it inadmissible as evidence, if it might be directly relevant to the issue under trial; and, further, that it might be so relevant as showing the defender's state of mind at the time when it was written and the relationship which existed between the defender and the co-defender.
On 20th June 1933 George Scott Watson, farmer, Eccles Newton, Coldstream, Berwickshire, brought an action of divorce for adultery against his wife, Mrs Elsie Amelia Davis or Scott Watson, in which Thomas Douglas Veitch, farmer, Hallyburton, Greenlaw, Berwickshire, was called as co-defender.
The pursuer alleged that adultery had taken place on 16th and 17th May 1933, while the defender and co-defender were together late at night at Harelaw, Greenlaw, a house near to the farm of Hallyburton, which was used by the pursuer and his family as a summer residence, and which was then being prepared by the defender for their occupation. He further averred, and the defender answered:(Cond. 7) "On or about 21st May 1933 the pursuer discovered, in a pigeon-hole of an open bureau in the drawing-room of Eccles Newton, a torn-up draft letter from the defender to the co-defender and an envelope addressed to the co-defender. The pursuer and defender were at that date in residence at Eccles Newton. The said draft letter is in the defender's handwriting, is couched in passionate terms, and refers to the period during which the defender was in residence at Harelaw. With reference to the explanation in answer, the defender's intentions with regard to said letter are not known and not admitted." (Ans. 7) "The pursuer is called upon to produce the alleged draft letter, beyond which no admission is made. Explained that in fact on no occasion has the defender sent any letter to the co-defender. Explained further that the said draft letter was destroyed and thrown away by the defender."
The defender, who denied adultery, pleaded, inter alia:"(3) The pursuer's averments in condescendences 7 and 8 1 not being relevant should not be remitted to probation."
On 19th January 1934 the Lord Ordinary(Wark) pronounced an interlocutor by which he repelled the defender's third plea in law so far as directed towards the averments in article 7 of the condescendence, and allowed the parties a proof of their averments.
At advising on 20th March 1934,
LORD MURRAY.The only question raised under this reclaiming note is as to whether the averments of the pursuer in condescendence 7 fall to be struck out of the record as irrelevant. These averments relate to a draft letter dated 21st May 1933 from the defender to the co-defender and relative envelope, found by the pursuer in an open bureau in his house. The letter when found was torn in pieces. The letter, which is in the defender's handwriting, is said to be in passionate terms and to refer to an occasion, or occasions, a few days before, when the defender and co-defender were admittedly together late at night in the pursuer's house at Harelaw, the only other occupant of the house being a maidservant. To these occasions, dated 16th and 17th May respectively, the substantive charges of adultery contained in condescendences 5 and 6 relate.
It was argued on behalf of the defender that in no circumstances can the contents of a letter in draft be available in evidence, whatever its import, or whatever the purpose may be for which its production may be required. This in respect that it records at best an inchoate state of mind, and thoughts which must in effect be held to be "unuttered". I am prepared to assume in favour of the defender that the draft was not, in fact, ever converted into a "principal" letter and dispatched to the co-defender. The argument was based on the law as stated in Dickson on Evidencesee sections 303 and 1374to the effect that a document which has not been "uttered" will not be received in evidence as an admission, and cannot be recovered under a diligence. The illustrations given are those of a letter written but not dispatched, and a pleading not lodged in process. It is important to notice, however, that the writer (in section 303) adds that "the coincidence of statements in an undelivered document with the real facts may be material as circumstantial evidence of knowledge," as also that the objection does not apply to the private books of a party.
The authorities cited are the two cases of Gavin v. Montgomerie7 and Livingston v. Murray.ENR8 In the former case two parties were sued as concerned in the forging of a bill. One of the two defenders, named Crawfurd, who had been convicted and transported for forgery, retired from the case. Proof was allowed against the other defender, and the pursuer then tendered in evidence a document purporting to be "defences" under the hand of Crawfurd, which, however, had never been lodged in process. This was rejected, and rightly rejected, for the obvious reason, as was pointed out by the Lord Chief Commissioner, that it was not evidence against the remaining defender. Lord President Hope, however, after pointing out that the statements were worthless as being those of a convicted criminal, added that, not being lodged, they contained merely "unuttered thoughts," and were therefore not evidence against Crawfurd or anyone else. In the case of Livingston v. MurrayENR8 (also reported in 3 Deas & And. 346 (sub nom. J. L. v. Mrs M.) and 670) the Lord President repeated this dictum in relation to a letter written by the defender to the pursuer, which she was dissuaded from sending, and which was "ex prposito retained by her" and handed over to her law agent. A judicial examination of the defender had been allowed, in the course of which the defender declined to produce the undispatched letter. This declinature was sustained. The case is not fully reported, and there is no trace in the report of the nature of the letter in question or for what purpose it was proposed to use it. The opinion of the Lord President, which was formally concurred in by Lord Gillies, is contained in a single sentence. Thus far the statement in Dickson appears for...
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