Scottish Court of Session Decisions

This was an action of divorce by a husband against his wife on the ground of adultery. There was no appearance for the defender. It was proved that the marriage took place in December 1849, but that for five or six years prior to the raising of the action the spouses had lived entirely separate, though in the same city. One part of this proof consisted of the defender's averments in an action of aliment raised by her against the pursuer, in which she set forth that she had been living separate from the pursuer for a period of years. There was some evidence also as to the defender's conduct on a particular occasion, when she might have committed, and probably did commit, adultery, though no actual adultery was proved. But the pursuer also proved that the defender had acknowledged on two different occasions, to different persons, and in circumstances when there was no ground for suspecting collusion, that a child to which she had given birth—and whose birth was fully proved—during the period of separation, was not the issue of the pursuer. The defender had likewise been guilty of making a false registration of the birth of the child (which she registered as illegitimate), as to name, place, and date, and had been committed for trial in respect of that false registration. Further, though the pursuer made regular payments of aliment to the defender through a third party, she did not apply for any increase subsequent to the child's birth; she made no provision otherwise for its birth, and expressed satisfaction when first informed of its death.

The Lord Ordinary thought the case peculiar, and ordered a hearing on the evidence, when