Scottish Court of Session Decisions

The defender reclaimed.

Pattison and Crichton for him.

Clark and Black in answer.

At advising—

Lord Justice-Clerk—In this unfortunate case we have to consider, upon the evidence, the truth of the averments made by the pursuer as justifying a decree of separation a mensa et thoro that her husband used and threatened personal violence to her, and that she cannot return without reasonable apprehension of her personal safety. In one part of his note the Lord Ordinary deals with the case on the assumption that personal violence must be proved in order to warrant a decree of separation in favour of the defender. I do not understand this as affirmed absolutely, but as applicable to the condition of the question as raised in this particular case. That doctrine, broadly stated, would be inconsistent with the judgment of the House of Lords in the case of Paterson, recalling the interlocutor of Lord Cunningham embodying that proposition. But this case, which is laid upon averments of actual personal violence, accompanied by menaces of further violence, and supported by an allegation that these are proved, the actual case before him being raised on that question only; the Lord Ordinary's views were naturally directed to consider whether the acts of alleged personal violence were proved, and, as he held them established, he gave judgment for the pursuer.

The evidence, if it is to be believed, seems to establish a course of intemperate conduct and of personal violence on the part of the defender directed against the person of his wife. There are various scenes described by members of the family which, if they are to be credited, seem to establish this beyond question. It is said that they are not corroborated by independent evidence. It is said that there is manifest exaggeration in the statements made by the leading witnesses, who are sons and daughters of the parties, particularly as to the frequency of the father's indulgence in dissipation; that there is an absence of complaint on the part of the wife when complaint might have been looked for; and that there is no evident marks of violence detected on the wife's person; and consequently that we are to disregard the statements of these witnesses. Giving every effect to these observations, and to the circumstances which may lead to some exaggeration in the evidence, I have found it to be impossible to withhold credence to the statements as to the acts of violence, which are circumstantially and minutely detailed, and all of which seem to me to be in substantial accordance with each other. It would be impossible to do so without assuming a case of perjury, for which there is not the slightest warrant in anything which appears on the face of the proof. Nor do I think that the statements of these witnesses is uncorroborated by the testimony of parties not members of the family. The witness Hume proves that the defender admitted that he had struck the pursuer, and had ordered her out of the house. The defender's witness, Henrietta Clark, on cross-examination stated that in the month of May 1867, a month before her leaving, she remembered the defender following the pursuer into the kitchen, and she adds, “on that occasion he gave her a shake, and put her down on a chair.” He did this “with considerable force, but not using extreme violence;” after which, she says, he shook his fist in her face; and further, she speaks to an admission the defender made to her that he had struck the pursuer. She stated indeed that he had done it only once, and that in a way not implying much personal injury. On the circumstances detailed in the evidence of the pursuer's witnesses as to the immediate cause of the pursuer leaving the house, this witness gives, as it appears to me, most material confirmation, and it is further confirmed by the policeman who was invited to come to the house, and who came there in compliance with the invitation.

The Lord Ordinary, who took the evidence, saw nothing to impeach the credit of these witnesses in the way in which the evidence was given, and has given effect to it. I see no reason to differ. If credible, these witnesses prove that the defender did do personal violence to the pursuer on the repeated occasions not distant from the time of separation. It is proved that on one occasion, in December 1866, after the eldest son had been ordered to leave, the defender rose and threatened to strike the pursuer, and on her going from him he followed and pushed her violently into the lobby, kicking at her, though the kick does not seem to have reached her. It is proved that on a Sunday morning in the end of May, while the parties were at Dunoon, he directed a blow against his wife which she evaded, but which was with the closed fist; that soon after he renewed the attempt to strike; that he pushed her with violence into the garden, locking the door of the house after her compulsory exclusion.

I have already adverted to the violent shaking spoken to by Henrietta Clark, and I think it necessary only further to advert to what happened at the closing scene, where the mother was found by her daughter in a fainting condition, during the night of Sunday, and the father cursing and swearing and foaming at the mouth. He is proved to have left the pursuer with the daughter, but soon coming to the bedroom where the mother and daughter were, he renewed cursing and swearing, saying, among other things, “that she would not get an hour's rest while she stayed in the house.”

If a husband who has so acted can compel a wife to adhere to his society, I should conceive it a most unfortunate condition of the law. A single blow, given in the heat of blood, might not be sufficient, if there were not strong grounds for apprehending its repetition. Here there were repeated acts of violence, and, both in the past history of the husband's conduct, and in the threats held out for the future, there was ample ground for serious apprehension of future personal violence. The actings and conduct of the husband well warranted the inference that she could not safely and securely remain in the house of the husband; and she had therefore a good ground for separation. I may also add, that I see no ground for imputing to the wife any acts which could be held to be a provocation to such acts of violence; on the contrary, it appears to me that she was singularly patient. The defender's witness Henrietta Clark says that the pursuer's conduct was not always kind and respectful—“I mean by this,” she says, “that she did not speak to him, and was often sulky towards him;” but she adds, “the only cause for this which I saw was his drinking. She was sometimes sulky when he was not drinking.” That she should have indicated such a state of mind in reference to her

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