Scottish Court of Session Decisions

The circumstances of this case are fully set forth in the interlocutor of the Lord Ordinary.

“ Edinburgh, 2d November 1872.—The Lord Ordidinary having considered the closed record, proof adduced, and whole process—Finds facts, circumstances, and qualifications proved relevant to infer that the defender committed adultery with Henderson Carrick, mentioned in the record and proof: Finds her guilty of adultery accordingly; therefore divorces and separates the defender, MaryM'Ormon or Hellon, from the pursuer, Stephen Hellon, his society, followship, and company in all time coming: Further, finds and declares that the defender has forfeited all the rights and privileges of a lawful wife, and that the said pursuer is entitled to live single or marry any free woman, as if he had never been married to the defender, or as if she was naturally dead; and decerns.

“ Note.—The circumstances of this case are peculiar. The parties were married in Glasgow in June 1852. The wife, who is the defender, had her residence in Glasgow at the time of the marriage, and she has resided there ever since. The husband, who is the pursuer of this action, appears to have been at the time of his marriage, and ever since, a seafaring man. It also appears that the pursuer, soon after his marriage, went to Australia, leaving his wife in Glasgow. It has not been said, and the proof shows that there would be no ground for saying, that in going to Australia the pursuer intended to abandon his wife. He went there apparently with the laudable desire of bettering his fortunes; and it has been proved that he for some time corresponded with his wife: that on at least one occasion he sent money to her from Australia, and also that he had expressed a desire that she should join him there. In place, however, of doing so, the defender, within three or four years after the pursuer

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had gone to Australia, went to reside with a man called Henderson Carrick, a married man, but who had separated from his wife, and that she and that individual have until recently lived together, chiefly in Glasgow, as man and wife. It is proved that three children have been born of the intercourse between the defender and Carrick.

On the other hand, the Lord Ordinary thinks that the proof sufficiently shows that the pursuer came to the knowledge of his wife's (the defender's,) misconduct, about ten years before the institution of this action. But then the proof also sufficiently shows, in the Lord Ordinary's opinion, that the pursuer was, during the time which intervened between his becoming aware of the misconduct of his wife and his instituting this action, engaged in the prosecution of his calling, in the command of vessels trading between various ports in Australia, Tasmania, and New Zealand. The Lord Ordinary thinks he may also assume from the whole evidence that it would have been very difficult, if not impossible, for the pursuer to have returned to this country sooner than he did, without serious injury to his business and pecuniary prospects. He returned in the spring of this year, and the present action was raised in July thereafter.

The Lord Ordinary may further add, as a circumstance which appears to him to be clearly enough established by the proof, that the defender had it always in her power to ascertain, if she had desired, from the relations of the pursuer, all necessary information in regard to his whereabouts. There is no foundation whatever, so far as the Lord Ordinary can discover, for the statement in the defences, that the defender had made enquiries about the pursuers, and that the result of her enquiries had satisfied her that he was dead. No attempt indeed was made by the defender to support this statement by evidence of any kind, and she did not adduce any proof at all.

In these circumstances, the defender's adultery is beyond all question, and it has not been disputed. The only plea in defence which was attempted to be supported in argument by the defender's counsel was that of mora, and the relevancy of this plea, in the sense in which it is explained by Professor Bell (Prin., sect. 1533), as meaning such long delay as may be held to import acquiescence on the part of the injured husband, or in other words remissio in Juriarum, was not contested. But it was maintained by the pursuer's counsel that there was no room for the plea in the circumstances of the present case, and the Lord Ordinary being of opinion that the pursuer is right, has pronounced judgment accordingly. He is of opinion that the absence of the pursuer in Australia in the prosecution of his ordinary and lawful calling, when he first received intelligence of his wife's misconduct, is sufficient fairly to account for the delay which occurred in instituting the present action, without imputing to the pursuer that he acquiesced in such misconduct, or holding that he is now barred from obtaining the ordinary and appropriate redress against the misconduct, on the principle remissio injuriarum. The cases of A v. B, 20th July 1853, 15 D. 976, and Duncan v. Maitland, 9th March 1809, F.C., relied on by the defender, were essentially different in their circumstances from the present, and cannot therefore be held to be precedents in point. In these cases the injured parties stated no reasonable admissible excuse for the great delay they had aliowed to occur after they had come to the full knowledge of all the circumstances and the bringing of their action; and, besides, in the case of Duncan, the injured husband, after coming to the knowledge of his wife's misconduct, continued for some time thereafter to cohabit with her.”

The defender reclaimed.

Authorities cited—Bell's Principles, 1533; Tunning Haggard Eccles. Rep. 53; Wemyss, 4 Macph. 660; A. v. B. 15 D. 976: Duncan v. Maitland, March 9, 1809, F. C.

At advising—