Scottish Court of Session Decisions

This was an action of divorce at the instance of A against B, his wife. The summons concluded that their Lordships “ought and should find facts, circumstances, and qualifications proven relevant to infer the defender's guilt of adultery with a person whose name, occupation, and place of residence is unknown to the pursuer, and therefore find her guilty of adultery with him accordingly: and our said Lords ought and should divorce and separate the defender from the pursuer's society, fellowship, and company,” &c.

The statements of the pursuer were that he and the defender were lawfully married on 17th January 1848: That he is a sailmaker, and had been in use to be employed as such on board foreign-going ships. His dwelling-house, in which he resided with his wife and family when he was at home, was in ——: That on 27th January 1869 he entered at Sunderland on board the ship ‘Coral Nymph’ of London, for a voyage to China. The ship was wrecked in Gasper Straits on or about 22d May 1869. The crew, including himself, succeeded in reaching Singapore by means of boats, and the pursuer there received his certificate of discharge, which is dated 17th June 1869: That on the 30th of June 1869 he was engaged at Singapore for a voyage to Liverpool, on board the the ship ‘Nyassa’ of Glasgow. The ship reached Liverpool, and he was there discharged on 15th November 1869: That he returned home to —— on or about 22d November 1869, having been absent from this country for a period of ten months, during which he had not, and had not the opportunity of having, any sexual intercourse with the defender, his wife, who had during the said period been resident, as she had been since their marriage, in ——: That on or about the 8th day of March 1870, the defender gave birth to a full-grown but still-born child. Of this child the pursuer was not the father, and could not be, the birth having taken place within three months and a-half of the pursuer's return home as above mentioned: That he was not aware of the pregnancy of the defender, and was in Leith at his work when he received the news of the birth of the said child. He thereupon ceased to reside with the defender, and has not since cohabited, or had any sexual intercourse with her: That the said child is the fruit of an adulterous connection between the defender and some person, whose name, occupation, and place of residence were unknown to the pursuer, but who is now represented by the defender to be C D, shoemaker in —— during the months of May, June, or July, or some other time during the period foresaid of the pursuer's absence from this country, the particular date or dates thereof being to the pursuer unknown.

The defender admitted the fact of adultery, and that the said C D was the father of the said child born on 8th March 1870. But she averred that both before and after the birth the pursuer was well aware of the paternity. That notwithstanding this knowledge, the pursuer has been and continues to be, on terms of great intimacy with the said C D. That the pursuer returned home about 22d November 1869. He lived and cohabited and had sexual intercourse with the defender until the beginning of January last, when he went to Leith, where he procured employment, retaining his house in ——, where the defender and the family continued to reside. After he went to Leith he returned

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weekly or fortnightly to his house in ——, and lived in family with the defender, and had sexual intercourse with her up to and including Saturday and Sunday, the 5th and 6th of March, two days prior to the birth of the child. During the whole of this period, from November to March, the pursuer was quite well aware of the defender's pregnancy, which was quite apparent, had been observed by the neighbours, and was a matter of current report among them. That, after being informed of the birth of the child, the pursuer visited the defender on the 13th and 14th days of the said month of March, and treated her with kindness as his wife, giving instructions to call in medical aid if required, and ordering provisions and spirits for her use. On the 14th the pursuer took dinner and tea in the house with the defender, and shook hands with her before leaving for his work at Leith. The pursuer has also twice visited the defender during the month of May last, on which, as on the former occasions, he treated the defender with kindness, conversed with her in his ordinary manner, and acted in such a way as to show that he condoned the offence.

She pleaded—“(1) The defender not having been guilty of adultery with a person whose name, occupation, and place of residence is unknown to the pursuer, she is entitled to absolvitor. (2) The pursuer having condoned the offence, is not entitled to sue for divorce. (3) In the circumstances, the defender is entitled to absolvitor, with expenses.”

The more important parts of the proof were as follows:—The pursuer's averments as to his absence from the country and his return in November 1869 were either admitted or substantiated. The eldest daughter of the pursuer and defender, deponed—“I remember my father coming home in November last. He lived for some weeks with my mother and the rest of us. My father and mother occupied the same bed at night. In two or three weeks after he came home he went to work at Leith; but he came over on the Saturdays and went away on the Sunday nights, generally every week, and sometimes once a fortnight. On these occasions, when he stayed over the Saturday nights, he and my mother slept in the same bed as usual. I remember him being over on Saturday, 5th March, when they slept together in the same way. My mother had a child on 8th March.” This was corroborated by her sister. They further concurred in stating that they had both been aware, from their own observation, of their mother's condition, even before their father's return in November, but that they had always asserted to strangers that they knew nothing about it until after the birth of the child. Their mother did not say anything to them about it, or tell them who was the father until after the birth. They also stated that their father had come over on the Sunday after the child's birth, and had spent some time on that and the following day in the house, but that he had not slept there. On leaving, he said that if their mother needed a doctor they were to go for one, and he would pay the expense. He also said that they were to send for him if she turned worse. On leaving, they stated that he shook hands with the defender, and spoke kindly to her; but the elder admitted, on cross-examination, that when her mother asked forgiveness for what she had done, her father replied that he hoped the Lord would forgive her, but that he never would. He was in the house once or twice afterwards, but only to look after his furniture and things. Little passed between him and his wife on these occasions, and he never slept there. There was also evidence of one or two neighbours who had been some time previously aware of the defender's condition from her general appearance. For the pursuer, one witness, who was constantly in the house up to the date of the child's birth, denied having been aware of the defender's condition till called in by her just before her delivery. Her evidence, which is important, will be found in the Lord President's opinion. The other evidence of the pursuer related to his conduct upon receiving intelligence of the child's birth while at work at Leith, and, if true, was negative of any previous knowledge on his part.

The Lord Ordinary ( Jerviswoode) pronounced the following interlocutor:—

“ Edinburgh, 20 th July 1870.—The Lord Ordinary having considered the Summons, with the proof adduced, productions, and whole process,— Finds facts, circumstances, and qualifications proved relevant and sufficient to instruct that the defender was guilty of adultery, at a time or times, during the absence of the pursuer from this country, between the 27th January and 22nd November 1869, and during which absence the pursuer had not, and could not, have sexual intercourse with the defender: Finds the defender guilty of adultery accordingly: Further finds that she has failed to prove facts and circumstances relevant and sufficient to support the allegations made on her behalf on the record, to the effect that the pursuer had condoned the offence: Therefore, with reference to these findings, divorces and separates: Finds, decerns, and declares in terms of the conclusions of the Summons.”

The defender reclaimed.

D. Crichton for her.

Strachan for the respondent.

At advising—