(1782) 2 Paton 596
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Divorce — Remissio Injuriæ.—
In order to found a relevant defence of remissio injuriæ, it must be proved that the offended party was in the certain knowledge of particular acts of adultery, such as would found a divorce, and nevertheless cohabited thereafter with the guilty party.
Nov. 23, 1781.
In 1770 the appellant was married to the respondent, but soon thereafter he gave himself up to low company, dissipation, and violence, to such a degree as that the respondent was forced to leave his house, her life being endangered from his violence, and to take refuge with her mother. Having somewhat reformed, she was induced to return to his society and house, on which occasion he executed a trust-deed of his estate in favour of his agent, for certain purposes, chiefly the payment of his debts and support of his family, and which bore this clause:—
“And whereas my spouse has been obliged to leave the house of Bonnington, and separate herself from me, and was about to raise an action of divorce on the head of adultery; but upon my granting these presents, and promising to amend my future life, she has agreed to come home.”
But the appellant returning to his former dissolute life, she was obliged to raise the present action of divorce against him on the head of adultery. His defence was, 1. That he was not guilty of adultery; and, 2. Supposing he was, the action was barred by remissio injuriæ, as the pursuer had cohabited with him after she had come to the knowledge of his guilt; and referred to her letters to prove her knowledge. These letters having been produced, the Commissaries, of this date, pronounced this interlocutor:—
“Find the defence of reconciliation not proven by the letters produced; find the alleged cohabitation not relevant to bar the present divorce, unless the pursuer at the time was in the knowledge of her husband's adultery: And ordain the defender to condescend whether he offers to prove that fact, and by what mode of proof.”
Dec. 11, 1781
They afterwards found “the evidence condescended on by the defender not sufficient to instruct the pursuer's certain knowledge of the defender's adultery, during the period of the cohabitation urged as a preliminary defence against this action, and repel the defence, and allow the
Feb. 25, 1782.
An advocation being brought, the appellant chiefly founded on the deed and the clause therein above quoted, which, he contended, proved her previous knowledge of the injury. To which it was answered, that this deed was executed by himself—that she was no party to it, and quite ignorant of its contents or its existence, and did not prove that she was then in the knowledge of the adultery.
Mar. 16, 1782.
The Lord Ordinary pronounced this interlocutor:—
“Refuses the bill, but remits it with this instruction, that the Commissaries repel the defence of remissio injuriæ hoc statu; and, before further answer, allow the pursuer a proof of her libel, and the defender a conjunct probation in common form.”
Proof being taken, and six witnesses being examined, the defender's guilt was established in the clearest manner. But the appeal to the House of Lords of the above interlocutors was then resorted to.
Pleaded for the Appellant.—The party who sues for an action of divorce ought at least to come into Court with clean hands; but here the respondent, though she states the appellant to have been going on in a continued train of guilt from 1772 downwards; though she swears she had a secret conviction of his crime for several years, and though she actually instructed a proctor in 1778 to raise an action of divorce, yet was pleased in that year to make up her peace with him for a sum of money and good settlements, and thereupon came home. This deed, and the letters taken in connection together, at once prove her previous knowledge. And the injury being once forgiven, and cohabitation following upon that reconciliation, was a complete bar to the action. Separately, the vague and general terms of the libel admitted to proof are extremely exceptionable. It sets forth, that during the years 1772, 1773, 1774, 1775, 1776, 1777, 1778, 1779, and 1780, and part of the year 1781, and upon one or other of the days of the months of the said years, the appellant has been guilty of adultery in Scotland and in Ireland, particularly with seven women named. These women are admitted as all of bad fame, and proposed to be witnesses, so that it was impossible to say whether the vagueness of the libel, or the evidence offered, was the most exceptionable.
Pleaded for the Respondent.—In actions of divorce on the
After hearing counsel, it was
Ordered and adjudged that the interlocutors complained of be affirmed.
Counsel: For Appellant,
For Respondent, Alex. Murray, Dav. Rae
Note.—Not reported in the Court of Session.