Scottish Court of Session Decisions

In April 1884 Murdo Macdonald raised an action of divorce against his wife, Mary H. Macdonald, founding on an act of adultery which she had confessed to him to have committed with Kenneth Macdonald. The action was defended by Mrs Macdonald, but Murdo Macdonald failed to proceed with it, and decree of absolvitor by default was pronounced. He subsequently resumed cohabitation with his wife.

In January 1885 Murdo Macdonald raised the present action against Kenneth Macdonald for £1500 in name of damages and solatium for the seduction of his wife. The defender denied the adultery, alleging that the pursuer's wife was of immoral character, that the confession was false, and that the action was the result of a conspiracy to injure him and gratify the pursuer's ill-will against him and extort money.

He pleaded—“(3) The pursuer having resumed cohabitation with his wife after having raised an action of divorce against her, on the ground-of her alleged adultery with the defender, and being still living and cohabiting with her, he is barred from claiming damages from the defender.”

The Lord Ordinary sustained this plea and assoilzied the defender, holding in law “that an action for damages against the seducer of a married woman cannot be maintained where the husband has condoned the offence and taken back his wife to cohabitation and is living with her when the action is brought.”

The pursuer reclaimed, and argued—In deciding this case the Lord Ordinary had considered himself bound by the case of Aitken v. M'Cree, February 6, 1810, F. C., while in the previous case of Collins v. Collins (December 1, 1882, 10 It. 250) he had expressed an opinion (p. 257) “that it is quite compatible with forgiving a repentant wife to demand reparation from the man who has brought dishonour both upon her and her husband, and has diminished the happiness of both.” The report in Aitken v. M'Cree was too short and unsatisfactory to be regarded as a fixed precedent on so important a point. Though noted by institutional writers since ( e.g. Bell's Prin. 2033), it was not approved as an authority settling the point, but was merely cited as a decision which had occurred. There was no ground in principle for holding that forgiveness of the wife involved the waiving of the husband's claim for compensation for the wrong done him by the seducer; for there might be reasons inducing the husband to take back his wife, applying only to her, and which might make the wrong done him by the seducer all the greater. It was extravagant to say that a wronged husband was to have no recourse against the author of that wrong except on condition of divorcing or trying to divorce the wife. The policy of the Roman law in excluding such actions was its fear of lenocinium on grounds of public policy. But the argument from public policy was at least as strong on the other side. The prospect of immunity to the seducer by forbidding recourse against him would be productive of as much evil as the possible encouragement to collusion between an immoral couple to extort money by way of damages from victims. It was the office of the Court on public grounds as much to encourage reconciliation between a husband and an erring wife as to discourage collusion and lenocinium.

Other authorities cited— Maxwell v. Montgomery, 1787, M. 13,919; Paterson v. Bane, 1803, M. 13,920; Glover v. Samson, Feb. 15, 1856, 18 D. 609; Wilton v. Webster, 7 Carington and Payne, 198; Fraser, H. and W. 1205; Sedgwick on Damages, ii. 517.

Replied for pursuer—No doubt the Lord Ordinary had held differently in the case of Collins; but in the present case he was following a precedent, viz., Aitken v. M'Cree, which decided the point. The report was full enough to state the point, and that was enough, and it was uniformly cited by institutional writers since, and certainly never disapproved, while it was approved by two of Erskine's editors—Ivory's Ersk. note to i. 3, 13, and Macallan's Ersk. ib.; also by More, Lect. p. 65. The only intelligible doctrine of condonation on grounds of principle was that it wiped out the act of adultery as if it had never been committed, so that no legal proceedings of any kind could ever afterwards be founded on it against any person. [ Lord Rutherfurd Clark—Could

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the wife interdict the husband from raising this action?]—Yes, she could, because she was entitled to prohibit him, after he had taken her back and buried her misconduct, from publishing her shame in a court of law. He had disentitled himself from ever bringing up the subject to her again in judicial form. He could not be said to forgive her if he made her misconduct the subject of judicial inquiry. That would be as much an injury to her as if the action were against herself. [ Lord Rutherfurd Clark—Suppose the husband had recovered damages and thereafter cohabited with his wife, would the seducer be entitled to get the damages back?]—No, because the matter had been finally adjudged upon, and could not be reopened. The argument from public policy, which was that of the Roman Law (Dig. 48, 5, 11, and 48, 5, 16), was against such an action as this, because it would lead to connivance between a bad man and a vicious woman to extort damages from the wife's paramour. It had been decided in England that condonation was a bar to recovery of costs against a co-respondent, and the judicial opinion expressed in that case was general— Norris v. Norris and Others 1861, 30 L. J., Prob. and Div. 111.

Other authorities cited— Graham v. Graham, July 19, 1878, 5 R. 1093, p. Lord President 1095; Collins v. Collins, Feb. 18, 1884, 11 R. (H. L.) 19.

At advising—