Scottish Court of Session Decisions

Francis Bell Hunter was upon 5th June 1880 married to Maria M'Guire by interchange of consent de presenti before the Sheriff-Substitute of Midlothian. They resided for some months after their marriage at Joppa, where they had cohabited before their marriage.

Mrs Hunter before her marriage had kept a brothel at 11 Leith Street Terrace, Edinburgh, and it was in this house that the parties first met. They had cohabited in this house also before the marriage.

In the end of 1880 Hunter left his wife at Joppa and went to America. After Hunter left this country, arrangements were made by the commissioner in Scotland for him for the adjustment of a deed of separation between him and Mrs Hunter, the principal conditions of which were—(1) the settlement of an annuity upon Mrs Hunter of £70, (2) the handing over to her of the furniture of the house at Joppa, and (3) the redeeming for her from pawn certain articles of her jewellery. These conditions were all carried out on Hunter's behalf by Mr Walker, accountant, Greenock, his factor and commissioner. The amount of the annuity was settled after some negotiation, in which an agent acted for Mrs Hunter. Prior to this contract she had threatened an action of adherence.

In May 1882 Mrs Hunter became tenant of a shop at 64 Sauchiehall Street, Glasgow, as a tobacconist, also tenant and occupant of a dwelling-house

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at 62 Buccleuch Street, Glasgow, and it was in consequence of what took place at the latter house that the present action of divorce was raised by Hunter against her. He averred that while she occupied the house in Buccleuch Street she returned to her former vicious mode of life, and gave herself up to a course of continuous and habitual adultery, and he specified dates upon which he averred that she had committed adultery with men whose names and designations were unknown to him. He further alleged that adultery was committed in the house in question with David Arnot and with Thomas Pearson.

The defender averred that for some time after the marriage she had continued to keep on her brothel, with the full consent of her husband, who assisted in the conduct of it and got part of the proceeds, and that during the course of their married life the pursuer had treated her with great cruelty, that he often struck her, and was very in-temperate both in his habits and language.

She pleaded—“(1) The pursuer is bound to sist a mandatory. (2) No jurisdiction. (3) Not guilty. (4) Even had the defender been guilty of adultery, the pursuer would have been barred from obtaining divorce.”

By minute for the pursuer he undertook to obey all citations addressed to him at his factor's office, and further to be present at all diets of Court in the cause. In respect of this minute the Lord Ordinary upon 29th June 1882 refused the motion that the pursuer be ordained to sist a mandatory.

A proof was led, when adultery with the above named persons was proved. The import of the proof bearing on the defence of lenocinium sufficiently appears from the Lord Ordinary's note and the passages of the evidence quoted in the opinion of the Lord President.

On 6th July 1883 the Lord Ordinary ( Lee) issued this interlocutor:—“Finds that the pursuer and defender were married at Edinburgh on or about 5th June 1880, the pursuer being at the time a domiciled Scotsman, and finds it not proved that the pursuer has abandoned his Scottish domicile; therefore repels the defender's first and second pleas-in-law, and sustains the jurisdiction of the Court: Finds facts and circumstances proved relevant to infer that the defender committed adultery as libelled in the condescendence; but finds it proved that the pursuer, by his conduct towards the defender, knowingly conduced to her return to her former vicious mode of life, and must be held to have occasioned or allowed the same; therefore sustains the fourth plea-in-law for the defender, and assoilzies her from the conclusions for divorce, and decerns, &c.

“ Opinion.—I am of opinion that the marriage is proved, and I take the defender to be confessing the adultery, which is clearly established. The only question is, whether the defender has or has not substantiated her plea that the pursuer by his conduct must be held to have consented or contributed to her guilt. I think it is quite settled that the principle of the plea of lenocinium, whether that is to be taken as the right name of it or not, is consent. It is because the party against whom the plea is stated must be held as having consented to what was done that he is barred from maintaining his action. The consent does not require, however, to be express consent, nor does the law require that he should be directly a party to the temptation to which the wife yielded. It is settled, I think, by the cases, that the consent may be merely a passive consent. It must be consent with a corrupt knowledge of what is likely to happen, but it does not require to be actual direct consent to any particular act of adultery. In the case of a man who has knowingly married a prostitute, I think it is settled upon the soundest principles by the case of Marshall, 8 R. 702, that the plea of lenocinium may arise very easily. If the man comes into Court, and his conduct is such as to show that after taking this prostitute as his wife, and undertaking the special obligations towards her which were referred to by the Lord Justice-Clerk in the case of Marshall, he has cast her off and abandoned her to her fate, in such a manner as to show that whether he said it or not he induced her to go back to her old life, that would be sufficient. Now, the question is, whether in this case this has or has not been proved? I must say that if it is proved that the pursuer was a party to that kind of conduct, it would be of no weight to my mind that the defender misconducted himself in the gross way which was referred to by the Dean of Faculty. Even if her relapse to her old life was so complete and disgraceful as he represented it to be, if it was the pursuer's fault, he is barred by his action not less completely, and I do not think that it should be in his mouth to complain that she fell so far. Now, then, let us see how the fact stands. The parties lived together, apparently, in Joppa for nearly a year and a half—from November 1878 to June 1880—before the ceremony of marriage took place, and from June 1880, after the ceremony, they lived there about other six months. I think it proved from the pursuer's own statement in evidence that he had nothing to complain of as regards her conduct during that period. I think it proved that he had no excuse for leaving her as he did, except that she became, in his opinion, disagreeable. I suppose she had taken to drink heavily. But she drank along with him. He was just as bad as she was. The quarrels were mutual and the drinking was mutual. With regard to the positions of the parties as to agreeableness, I must say that the defender was not in my opinion legitimately open to the observations which were made upon her, on behalf of the pursuer, as regards her character and her age. He was quite as able to take care of himself as she was. If there was any blame in the drinking, I hold him to be to a large extent to blame for it. He ought to have kept his wife in order. That was one of the obligations which he under-took. If he knew it to be a difficult obligation to fulfil, he should have considered that before he entered into the contract. At all events, down to December 1880 his own evidence satisfies me that he had no just ground to complain against her. She was exactly as he took her, certainly no worse; and he was bound, all the more because of her former life, to do what he could to protect her against the world and against herself. I think it also proved that a quarrel took place in December on account of the groom. I do not know what the quarrel was about, but I think it clearly proved by the evidence of Miss Henderson that it was the groom who was the source of quarrel. I think it further proved by the pursuer's own evidence

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that be did take the groom to his bedroom and took him to bed with him, although his wife complained of it. I think that was an intelligible source of quarrel; whether there was anything so gross connected with it as was suggested in the evidence I know not, but I think it was an intelligible source of quarrel. I hold that pursuer is inexcusable for the quarrel that then took place. I think it altogether inexcusable, according to his own evidence, that he should abandon the defender as he did without sufficient cause—far more sufficient cause than is shown here. I must say that that of itself very nearly amounts to throwing her upon the world, and throwing her back upon her old life, by act and deed, if not by word, because he left her to herself, knowing what she was, and knowing the temptation to which she would be exposed from her former habits and her old associates. But if I am driven to it, I must consider the evidence as to the actual use of expressions, and I must say I do not doubt that these expressions were used. The evidence of the witness Macdonald, though subject to an observation, seemed to me to be reliable. I am not indisposed to think that the expressions were sometimes used in passion, and possibly in drink. The fact is proved that they were used repeatedly, and that the pursuer was constantly casting back in the defender's teeth her old life. I think it not unintelligible that that should grievously injure a woman like the defender. I do not say whether the expressions of feeling that were exhibited in the box were genuine or not—I saw, indeed, no reason to doubt their genuineness. If it was true that the expressions to which I have referred were used, I think them sufficient to explain even some genuine expression of feeling such as she appeared to have. That being my opinion upon the evidence, I think the case quite comes up to the case of Marshall but for one consideration, and I have now to deal with that. The only difficulty I have in holding this case to be ruled by the case of Marshall is the fact that in this case the pursuer ultimately made a provision for her. The fact that he did make a provision for her certainly makes a distinction between his case and Marshall's, because here you have a woman accepting a provision from her husband upon the footing of being his wife, and yet committing the most gross breaches of conjugal duty, and pleading that he consented. The question with me is whether that bars her plea. I must deal with that, however, upon the footing that he has by his conduct so contributed to her fall back into her old life that he would be debarred, unless she has done something to exclude her from raising this plea. I do not know of a case in which that point has arisen before. I do not think it arose in the case of Marshall. No doubt in the case of Marshall there was the observation—a perfectly just observation—that it was not owing to poverty that the woman fell back into her old ways. But then this is the case of a woman who took a provision as from a husband to a wife, and yet pleads that he was consenting to her return to evil ways. I think there is a considerable difference here, but my opinion upon the law and upon the facts is, that it is not sufficient to bar her from pleading that conduct of his as conduct amounting to an occasion of her relapse into her old life, and upon that ground I sustain the defence. I find the marriage proved, and the adultery proved, but I sustain the defender's fourth plea-in-law and grant absolvitor, with expenses.”

The pursuer reclaimed.

In the Inner House counsel for the defender were required by the Court to amend their pleadings so as more clearly to raise the defence of lenocinium which the Lord Ordinary had sustained

The defender then added this new statement—

“The pursuer frequently, during the time that he and the defender lived together after their marriage, addressed her in the foulest language, called her a whore, and applied other obscene and degrading epithets to her, and told her to resume her old trade as a brothel-keeper, and become again a prostitute.”

She also amended the fourth plea-in-law above quoted, so as to make it read thus—“Even had the defender committed adultery, the pursuer having been guilty of lenocinium, is barred from obtaining divorce.”

She also added this plea—“The pursuer having told the defender, who had previously kept a brothel and prostituted herself, to return to this mode of life, and thus left her without protection, he cannot found upon the fact that she did so as entitling him to divorce.”

The pursuer argued—(1) The case of Marshall, upon which the Lord Ordinary had proceeded, had been wrongly decided, and it was not the law of Scotland that a man who married a woman of the defender's class was bound to any special duty in point of law towards her which the husband of a woman who has been always virtuous did not undertake. The law as to lenocinium was better laid down in the case of Wemyss, March 20, 1866, 4 Macph. 660. It must not be a remote but the proximate cause of the crime—Fraser, ii. 1184, 86, 88, 90. (2) But Marshall's case, assuming its soundness, was distinguishable. There was not in this case, as in Marshall's, the plea of necessity to induce the wife to return to her old life, for she had a comfortable allowance for her position, and she had a home and furniture besides. It could not therefore be said that the pursuer's act had given meaning to any coarse language he had used, and that he had induced her, by leaving her destitute, to commit the adultery he founded on. (3) The lapse of time between the use of the expressions objected to and the defender's return to a vicious life was too great to entitle the Court to attribute her relapse into vice to the use of these words.

Authorities— Rodgers v. Rodgers, 1830, 3 Hag. Consist. Rep. 57, 72; Walker v. Walker, 1796,. referred to, 3 Hag. 59.

Argued for defender—The mere lapse of time from the use of the expressions to the wife's fall from virtue would not affect the question if it could be shown that the wife's fall was the direct result of her husband's advice. She had simply acted upon his advice; the words were not spoken in joke, but were intended by the pursuer both to insult his wife and to induce her to return to her old life. Then there was the pursuer's desertion of his wife within six months of their marriage, though it was peculiarly his duty to watch over her. That circumstance, taken with the expressions used, showed pursuer's intention, and together formed lenocinium. Taken together, they were the direct cause of the defender's relapse,

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and so were within the definition of lenocinium given by the Lord President in the case of Wemyss, 4 Macph. 660. The contract of separation had no bearing on the present question, as it was merely an answer to a threatened action of adherence.

Authorities— Donald v. Donald, March 30, 1863, 1 Macph. 741; Marshall v. Marshall, May 20, 1881, 8 R. 702.

At advising—