Creditors of Watson of Damhead v. Marion Cruikshank
Date: 15 July 1681 Case No. No 7.
Converse as man and wife, held to be passing from divorce. Co-habitation sufficient presumptive evidence of converse.
Click here to view a pdf copy of this documet : PDF Copy
The Creditors of Damhead pursue reduction of a decreet of divorce by the Commissaries of Edinburgh, divorcing Marion Cruikshank from John Watson of Damhead, her husband, for his adultery, upon these reasons: 1mo, That the Commissaries committed iniquity in repelling this defence, That after the acts of adultery, the wife co-habited with her husband as man and wife, which imported her passing from any prior injury known to her, seeing adultery doth not dissolve marriage ex pacto, but is a crime upon which the party injured may desert the injurer, and crave to be divorced; but if the party injured, renounce or discharge the injury, there is no place to crave divorce upon these acts of adultery; and the wife's co-habitation, after these acts were evidently known, imports a renunciation thereof, and is as effectual as if a new marriage had been contracted and perfected; and that the adultery was and is instructed by the acknowledgment of the husband, and his whore, in the kirk session of St Cuthberts, and making public acknowledgment therefore; and if any acts were posterior, they were after the libel; yet the Commissaries repelled this allegeance, unless the adultery were known to the wife by judicial acts, which no law required; but only that the wife, after knowing of the acts, co-habited; but here it is known, that the two parties made penance, and that there were two children born of the adultery, which was more than sufficient to infer the wife's knowledge. 2do, It is offered to be proven, that the acts of Adultery whereupon this decreet proceeded, were perpetrate by collusion betwixt the husband and wife on these evidences: 1mo, That these acts were after the husband became bankrupt, and were perpetrate within the precincts of the Abbey, to which he had retired, when the husband had no livelihood, but what he expected from the wife upon the divorce; and if the witnesses were re-examined, they would acknowledge, that they were sent of purpose by the husband and wife, to see the husband and the whore in bed together; likeas the wife, after divorce, furnished the husband money for his entertainment.—It was answered for the wife, That the passing from the deed of adultery can only be inferred by the wife's continuing to converse with the husband at bed and board; but co-habitation in the same house is noway relevant, and as for the wife's knowledge or collusion, it is only probable by her own oath or writ.
The Lords found, That the wife's conversing with the husband as man and wife, after the deeds of adultery were particularly known to her, did infer the passing from divorce on these deeds; and found co-habitation a sufficient presumptive probation of the wife's Converse with the husband as wife; unless the wife prove, that though she remained in the house, she withdrew from the husband's conversation, and lay in a several room from him; in which case it must be proven, that she had carnal dealing with him, at least lay in bed with him. The Lords did also sustain the second defence, and allowed all evidences for instructing thereof, and witnesses for proving the same.
