Scottish Court of Session Decisions

Subject_1 HUSBAND AND WIFE.

Lady Leckie
v.
Moir of Leckie

1750, Dec. 6
Case No. No. 35.

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In this question of separation and aliment brought before us by advocation from the Commissaries, who had found sufficient circumstances and qualifications to infer separation and aliment, and which we first decided 8th June last, and altered the Commissaries judgment, refused the bill, but remitted with instruction to find there was no sufficient cause of separation, but was neglected by me to be then marked;—it was again brought before us by a reclaiming bill for the Lady, and after answers we appointed a hearing and heard the lawyers these three days past, and though when the case was last before us I was against the separation, yet in further considering the case I altered my opinion. I thought that the Lady having on her husband's information been represented to the world as a monster of nature for lasciviousness and a reproach to her sex, and which scandal has by the husband and his counsel in all their writings and pleadings been maintained to be true, though they said it was impossible to prove them,—I thought it impossible that thereafter they could live together as husband and wife, that he could wish to take her again into his bosom, or that she could live with a man who in effect declares that she is unworthy of living, and who had for ever debarred her from the society of every modest woman who would believe him: That though his justification from the imputation of impotency wherewith she is said to have reproached him to one or two of her confidants, had made excuseable in him to inform his nearest friend of her insatiable appetite, yet he must at the same time have resolved to separate from her, because they could not consistently with the honour of either of them thereafter live together; and whenever matters came to that pass, the Court could not refuse a separation, and he was to aliment her so long as she was his wife; at the same time I saw no necessity for such vindication uor evidence of the truth of what he reproached her with, and far less saw I necessity of propaling that scandal to so many, or maintaining it in courts of justice. Kilkerran also changed his opinion, and upon the question it carried alter the last interlocutor, and to refuse the bill of advocation simpliciter. Pro were Minto, Drummore, Kilkerran, Justice-Clerk, Murkle, Shewalton, et me. Con. were Dun, Haining, and President, but Leven was non liquet, and Milton in the Outer-House.