Scottish Court of Session Decisions

This is a petition for access to children, brought by a lady against whom an action of divorce on the ground of adultery was in dependence under a Reclaiming Note from the Lord Ordinary's interlocutor, which was to the following effect:—“ Edinburgh, 17 th March 1868.—The Lord Ordinary having heard counsel, and made avizandum, and considered the record, with the proof adduced, productions, and whole process, Finds that the pursuer has failed to prove the acts of adultery alleged on the record to have been committed by the defender Mrs Lacy, or any of the said acts;

Page: 602↓

and, with reference to the preceding finding, assoilzies the defenders respectively from the conclusions of the action, and decerns: Finds the pursuer liable to the defenders respectively in the expenses of process, of which allows an account to be lodged, and remits the same to the Auditor to tax and to report.”

“ Note.—The Lord Ordinary trusts he may be held as here absolved from the duty which, in the ordinary case, he endeavours to discharge, of stating in a note the views on which he has proceeded in giving judgment. The result of his consideration of the evidence which was led in his presence, and which has since formed the subject of able argument before him, is embraced in the terms of the preceding interlocutor.”

The case standing No. 60 of the Long Roll of the Second Division, their Lordships, before disposing of the petition, gave the action of divorce precedence; and, on advising the reclaiming note in that case, they adhered to the interlocutor of the Lord Ordinary. The Court then took up the petition. The respondent, in answer, founded on alleged habits of intoxication of which the petitioner had been guilty, and to which she was still said to be addicted, and on familiarities with other men which were founded on in the action of divorce,—the proof of which consisted of some correspondence between the petitioner and a gentleman not her husband. The respondent also said that latterly, besides neglecting her other duties, she had been harsh to the children. The answers concluded as follows:—“It is humbly submitted, in these circumstances, that the petitioner is not a person with whom the respondent could safely allow his children to associate. Even although it were held, as the Lord Ordinary has held, that the evidence did not amount to proof of adultery, no wife could for years be addicted to habits of intoxication, as the petitioner was, and could receive and write such letters, without being morally debased. The respondent trusts that, although he was unable to convince the Lord Ordinary that the proof was sufficient to entitle him to decree of divorce, he will be able to convince your Lordships that it is so; but, even if he fail in that action, he has now said enough to justify him in not allowing to the petitioner access to the children. But still farther, this is not a case in which, where the action of divorce is in pendente, the Court should interfere with the right of the father to the custody and supervision of his children, upon whom any intercourse with their mother will have the most prejudicial and distressing effect.”