Scottish Court of Session Decisions

The pursuer averred—“In or about the month of June 1882 defender put pursuer and her child out of doors, threatened to kill her if she returned, locked and secured the premises, and then proceeded to his father's house at New Cumnock and remained there for some time. Immediately before this occasion the defender announced to the pursuer his intention of commencing business as a butcher at New Cumnock. The first intimation of any intention on the part of the defender to commence business as a flesher, and to remove to New Cumnock, was made to the pursuer on the morning of the day on which the landlord of his new premises came to Craigbank to conclude a lease. These premises were taken without any regard to the wishes of the pursuer, and she made no objection to their being taken out of terror of the defender, who only a day or two before had put her and her child out of his house and threatened to kill her if she returned. The defender insisted that the pursuer would have to keep the butcher's shop at New Cumnock. The

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pursuer, in consequence of weakness induced by a long course of cruelty and abuse, was physically unable to do so, and said so to the defender, who thereupon got into one of his customary fits of passion. On or about the day before the defender removed to New Cumnock he came into his house drunk and objected to pursuer's sister taking back to her own house a sideboard which belonged to her. He threatened to smash the sideboard and the pursuer, and became so outrageous and violent in his conduct that the pursuer had to seek refuge from his violence. Furthermore, on or about the day when the defender removed to New Cumnock, the pursuer returned to his house to get some clothing, and with the desire to go with him if he were calm, kind, and reasonable. The defender on seeing her became ungovernable in his passion, swore at her, and threw her into the same state of terror in which he had repeatedly and systematically placed her. She had to call for assistance, and upon hearing the voice of a neighbour the defender desisted from the attack upon her which he threatened. The pursuer escaped from the house, and again took refuge with her sisters. The same day the defender locked the house and left Craigbank without leaving any message for the pursuer. The pursuer could not get admission to it when she returned. The furniture was removed, and the house of the parties was broken up by the defender. The defender thus deserted the pursuer, and has continued in malicious desertion of her ever since.”

She pleaded—“(1) The defender having deserted pursuer, and having wilfully and maliciously continued in said desertion for four years, the pursuer is entitled to decree of divorce as craved.”

The defender lodged defences, and pleaded—“(1) The statements of the pursuer are irrelevant and insufficient to support the conclusions of the summons. (2) The pursuer having deserted the defender, is not entitled to maintain this action. (3) The parties having in any event separated from each other by mutual consent, the action is not maintainable. (4) The defender not having been guilty of the wilful and malicious desertion libelled, is entitled to absolvitor.”

A proof was led before Lord Wellwood (Ordinary).

The facts of the case were as follows. In March 1880 the pursuer was married to the defender who carried on a grocery business in Craigbank. One child was born of the marriage. The defender was a man of intemperate habits, and often returned home late at night the worse of drink. When in that state he was loud and abusive in his language and manner toward the pursuer, treated her cruelly, and threatened her with violence. The pursuer also deponed that the defender frequently struck her, and that she in consequence of his violence had on different occasions to leave his house at night and take refuge with her sister who lived a few doors off, or pass the night in a shed in the neighbourhood. The defender appeared to have acted not with any intention of causing the pursuer to separate from him, but from sheer brutality aggravated by drunkenness.

In April 1882 the defender, with the pursuer's knowledge, but she averred against her wish, took a house in New Cumnock, about two miles distant from Craigbank, intending to carry on business there after Whitsunday. When about to quit his house at Craigbank in June 1882 and flit to New Cumnock, the following events happened which the pursuer founded on as constituting desertion of her by the defender.

The pursuer deponed—“The night before he went to New Cumnock he was drunk and violent, and ordered both me and my child out. I did not go at first, and he shoved me out. He did not give any reason, except that he was not satisfied with me; he often said he wished I would die and be out of the way altogether. When he had got me and the child out the night before he left, he locked the door and shut up the house. I went to my sister and asked if I would be allowed to stay for a little. I hoped defender would change his mind, and that I would get back. He left the village that night, and I did not get back. I stayed in my sister's all night—my sister, who is now Mrs Hyslop. … On the morning after defender turned me out, I went round to the house and tried the door, and found it locked. I went back later in the forenoon, and the door was open. I went in. Defender was not there. I saw that he was determined to remove. Some of the things were away. I took a dress and some underclothing, and was going to take them to my sister's. On my way out I met defender coming in. He came forward in a threatening manner, and asked what the hell I was doing there. I shouted to Mr Ross, who was in the shop next door, and Mr Ross replied, but I do not recollect what he said. My husband got me by the shoulders and pushed me out at the door, and said if ever I came back he would kill me. I had gone out the previous night with just the clothes I had on, and I went back in the morning to get some things. After defender put me out I rapped at the door to try and get in again, but the door was locked. I was not back after that. Defender took the dress that I was taking away from me, and I had to go without it. Finding that I could not get in again, I left and went to my sister's. When defender stopped me as I was going out, I rapped on Mr Ross for assistance as well as shouted to him. Though I was afraid to go back to my husband in consequence of his threat to kill me, if he had come for me I would have gone with him at once. Defender took the furniture to New Cumnock. It would be nearly a week before everything was away. He had a carter removing some of it, and he took some of it himself with a cart. My sister's house was quite near where we had stayed in Craigbank, but defender never looked near me during the week he was removing

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the furniture. He never sent for me nor addressed me in any way. He was still drinking during that week. From that time till now he has never looked near me. I don't recollect his ever seeing the child after that. He has never sent me anything for my support nor for the child's. He has never suggested that if I went back he would amend his conduct. If he had promised to live a decent life I would have gone back. … Cross.—I would have gone back to him after June 1882 if he had asked me, even though I was afraid. I shouId have been in danger of my life; but all the same, I would have risked it. … I was intending to go to New Cumnock with him. (Q) What altered your mind?—(A) His treatment in putting me out the night before he began to take the furniture away. His conduct was getting worse and my health was failing, but I would have accompanied him all the same if he had not put me out and threatened that if I went back he would kill me. He never asked me to go back after that. He never looked near me. I never sent word to him that I would go back if he would amend his ways … Re-examined.—The last thing my husband said to me was that if ever I came back he would kill me. He has never spoken to me from that day until now, and has never signified directly or indirectly that he wanted me back, or that he would treat me as a man should treat his wife. I would have incurred the risk of going back to him if he had asked me.”

The defender deponed:—“It is not true that I put the pursuer out about June 1882, along with her child, and threatened to kill her if she returned. I locked up the house at Craigbank in June 1882. I had part of the furniture away by that time. On my return from New Cumnock four or five hours afterwards, I found my wife and her sister, now Mrs Hyslop, in the house. They must have got in through the grocer's shop. Previous to this time my wife had agreed about removing to Bridge-end, New Cumnock. She was quite aware I had taken a house there. She instructed Mrs Dempster to clean the house. I believe I paid Mrs Dempster for that after the furniture had been removed. The first intimation that I got that my wife was not going with me to New Cumnock was on the morning of the removal of the furniture, after I came back from having been at New Cumnock with the first cart of furniture. On my return I went upstairs, when I met her and her sister, now Mrs Hyslop, and she turned round about and told me she was not going with me to New Cumnock. I said if she was not going I and the furniture were going, because my lease had expired and I had to go. I asked her to go with me. I did not say to her at that time that I wished she would die; I never said such a thing at any time. The pursuer and her sister had some of the silver plate away before I met them in the house, and when I met them they were carrying out more effects from the house. I told them they would be better to go back and leave them as the things did not belong to them. I said that they had broken up the door after I had secured it. The pursuer did not indicate in any way that she was willing to go back with me to Bridge-end. The impression I formed from her conduct that day was that she had been advised by her friends not to go with me … Cross.—Do you say she went away that night solely because she was obstinate in argument?—(A) Yes. I saw her taking away silver plate the following day. She took away a cruet-stand, a butter-cooler, and a lot of other things. Her sister, now Mrs Hyslop, was with her. She may have taken a dress as well as these other things. I do not remember what all she took. I told them to go back and leave the things where they had got them, but they took them away in spite of me. I met them on the stair a second time after that. It is not the case that I took the dress from her, or anything else. My wife may have rapped through the partition to Mr Ross, but not in my presence. I do not know what she would rap for. The last thing I said to her before she left was to put back the things she was taking away. (Q) Is it not the case that you shouted out to your wife, ‘Damn you, what are you doing here,’ or ‘What the hell are you doing here’?—(A) These were not the last words. These were the words I believe I used when I met them on the stair. That was after I had locked the door and gone to New Cumnock, and on returning found her and her sister carrying off the effects. It is not the case that the last words I said to her were that I would kill her if she came back. I did not tell her that I would do for her if she came back, nor anything like it. If anybody says they heard me say that, it is untrue. I locked the door of the house that day to prevent my wife and her sister carrying off more effects.”

From June 1882 to May 1893 the pursuer and her child lived with her relatives at Craigbank, and the defender at his premises at New Cumnock. Neither made any attempt to bring about a reconciliation.

On the 23rd May 1883 the defender wrote to the pursuer the following letter:—“Grace,—If there is any of the furniture you want, let me know by return, as I am leaving New Cumnock and going to dispose of everything. Let me know by Friday morning, and I will send them up to you; hoping little Andrew is keeping well. Geo. Gibson.” On the same date the pursuer replied as follows:—“George,—In answer to yours of this morning, I will be very glad if you will send up the sideboard and drawers, also the small tin case, and any books you are not wanting for your own use. You might send my work-boxes and the rocking-chair, and any of my clothes you see. I am glad to say Andrew is keeping strong and a good speaker, and believe me, George, I sincerely hope you will get on well wherever you go, and will always be pleased to hear of your wellbeing. I would have liked to have saved the crumbcloth too, but you know best what you require. They will all be kept for little Andrew. Trusting you are well,

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—I am, yours, Grace.” On 25th May the defender wrote the pursuer—“As regards the sideboard, it's a thing that I can't give you, except either you or any of them that wants it likes to buy it. I will give it to any of them for seven pounds, and as regards the rest you have spoken about, I will send them upon either Tuesday or Wednesday. If any of them wants the sideboard you can let me know as soon as you can. I can sell it for more money, but if there is any of them wanting it they can have it for what I said. Geo. Gibson.” On 29th May the pursuer wrote to the defender—“Keep the sideboard until you hear from me again. I will let you know as soon as possible. Send up the other things.—Grace;” and again on 31st May—“The money for the sideboard will be forthcoming, but as the trustees had to be consulted, I can hardly tell what day I will get it yet. Will send it down, so you can send the sideboard up.— Grace Gibson.”

Thereafter the defender disposed of his business in New Cumnock and went to Glasgow without leaving his address with the pursuer. The pursuer and the child of the marriage continued to live with her relatives at Craigbank. No further communications passed between them. Since June 1882 the defender did nothing towards the sustenance of his wife and child.

On 22nd December 1892 the Lord Ordinary ( Wellwood) assoilzied the pursuer.

“ Opinion.—I am of opinion that the pursuer is not entitled to the remedy she seeks. I have arrived at this conclusion with some reluctance, because I think that during the cohabitation the defender treated the pursuer very badly, and further, I do not see any reasonable hope of the parties coming together again.

The pursuer has brought a large body of witnesses to prove that the defender was a drunkard; that when he was drunk he was abusive and violent; that he treated the pursuer cruelly, threatened her frequently, and occasionally struck her, although of this there is not so much evidence. On the other hand, whether owing to the want of means or lapse of time, or because such evidence is not to be obtained, no one is brought to say a good word for defender except himself.

I therefore hold it to be sufficiently established that prior to the separation of the spouses in 1882 the defender treated the pursuer with such cruelty as to entitle her to leave him, and to justify a judicial separation, but unless divorce on the ground of desertion is to be allowed in every case in which the injured party would be entitled to judicial separation, I do not think that the pursuer can get the decree she asks. It does not follow that because one party to a suit is not to be believed in regard to certain points of the case, the other party's evidence is to be accepted on all points. Now, in the present case, as I have said, I believe the pursuer's evidence in the main as to the defender's ill-usage of her, but there are certain points of her evidence material to the case which I cannot accept implicitly. I am not satisfied—I do not believe that after she left her husband and refused to accompany him to New Cumnock she had any real desire to join him again. It is practically admitted that she made no effort at reconciliation. She says that she would have been willing to go and live with him if he had asked her. I must say that I do not believe this, because the whole of her actings are inconsistent with it. I think the truth is that she was glad, possibly with reason, to be quit of him, and so were her relations with whom she lived, and probably nothing would have been heard of this case if the defender had not recently re-appeared in the neighbourhood, his re-appearance coinciding with right to certain money opening to the pursuer.

If the facts of the case are examined I think they show that though they afford ample grounds for judicial separation they do not afford sufficient material for divorce. The defender's alleged desertion is thus described on record. Speaking of the day on which the defender left Craigbank the pursuer says—“The same day the defender locked the house and left Craigbank without leaving any message for the pursuer. The pursuer could not get admission to it when she returned. The furniture was removed, and the house of the parties was broken up by the defender. The defender thus deserted the pursuer, and has continued in malicious desertion of her ever since.’ If that is the desertion on which the pursuer relies, it is certainly not substantiated. In June 1882 the defender did not desert the pursuer. He had previously carried on business at Craigbank, but at Whitsunday 1882 he, with the full consent of the pursuer, took a house or premises at New Cumnock, which is about two miles distant from Craigbank. There is no ground for saying that he deserted his wife in leaving Craigbank and going to New Cumnock. He had to go there because he had given up his premises at Craigbank. The fact is the pursuer refused to go with him, I assume justifiably.

During the following year the defender was living within two miles of the pursuer. She knew well where he was, and she must have seen him occasionally at Craigbank, but she made no effort whatever at reconciliation, and neither did he. And so things went on until May 1883, when a very important incident occurred. The defender, finding that business was not prospering at New Cumnock, owing, as he says, to his wife not coming to assist him, resolved to go elsewhere, and accordingly he wrote the letter to the pursuer—[His Lordship quoted the letter].

The defender says he wrote this letter to give his wife an opportunity of proposing to come to him. I do not believe that; I think the letter was written in order to get a bid for the furniture. At the same time the occasion was critical and gave the pursuer an opportunity of showing what her real wishes were. Instead of remonstrating with the defender for going away, or proposing to come to him, she replied as follows—[ His Lordship quoted the letter].

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She afterwards wrote the letters in regard to the sideboard.

“Thus the spouses parted as it seems to me by mutual consent, and the defender went off with the good wishes of the pursuer, however coldly expressed. He seems to have led a very wretched life, partly, no doubt, due to his bad habits, while the pursuer has, fortunately for her, been living with kind and attentive relatives. This has gone on for ten years and I do not think it is proved either that the defender has intentionally kept out of the pursuer's way, or that she has made any serious attempt to find him with a view to reconciliation. He has neglected his duties as a husband and a father, but so far as I can see the pursuer's one feeling was relief at his absence.

The question to be decided is whether these facts justify me in holding that the defender has deserted the pursuer. I think not. Not merely is the balance of authority against the pursuer's contention, but I do not think that any case has been quoted on her behalf which when examined will support her demand.

The cases mainly relied on for the pursuer were— Muir, 6 R. 1353; Winch-combe, 8 R. 726; Gow, 14 R. 443; and Gould, 15 R. 222. These cases have been very much discussed recently, especially in the case of Watson before the whole Court, 17 R. 736. I do not think that the judgment which I will pronounce will really conflict with any of them. The ground of decision, especially in the cases of Winch-combe and Gow, was that it is not a bar to a wife obtaining divorce on the ground of her husband's desertion, that before the desertion began she had left him on account of his cruelty. For instance in Gow's case the pursuer, the wife, left her husband on account of his cruelty, and went to live with her father. The husband a few weeks later sold his furniture, left the place where he resided, and up to the time of the wife instituting the action, had not communicated with or made his address known to his wife. Thus, as Lord M'Laren said, he ‘made it impossible that overtures of reconciliation should be addressed to him.’

Winchcombe's case was not precisely the same. The husband treated his wife with cruelty deliberately for the purpose of obtaining a separation from her. He then broke up his home, went abroad, and disappeared. Therefore there was here actual desertion by the husband.

It will be observed that in these cases there was actual and intentional desertion on the part of the husband, although no doubt preceded by the wife leaving him on account of his cruel treatment, and in these and the other cases the husband when sued was abroad at the time. I may refer to Lord Shand's observations on these cases in Barrie, 10 R. 208–215.

The great distinction between these cases and the present, and cases like Barrie and Watson, is that in the latter the spouse who is said to have deserted has been accessible, living within the same town or within easy reach, without any effort being made on the part of the spouse who complains of being deserted to effect a reconciliation. In regard to this distinction, I may refer to the opinion of Lord Shand in Watson's case, 17 R. 743, 744, in which I concurred at the time, and which I think expresses tersely and forcibly the conditions which are requisite as a foundation for an action of divorce on the ground of desertion.

In the present case there is in addition what practically amounts to a deliberate agreement to live separate, which it seems to me places an insuperable impediment in the way of the pursuer founding upon the subsequent absence of the defender as constituting desertion.

I have already stated my reasons for regretting that I am driven to this conclusion. It is satisfactory to know that the pursuer's money is settled on herself.”

Against this judgment the pursuer reclaimed. The case came before the Second Division of the Court, who on 17th November 1893, after hearing counsel, appointed the cause to be argued before themselves and Three Judges of the First Division.

Argued for pursuer—She was entitled to decree because (1) she had been deserted by her husband in 1882, he had turned her out of the house; and (2) the husband had since then remained in malicious desertion, never having shown the slightest willingness to take her back. Our law did not recognise any such thing as divorce for desertion brought about by mutual consent or incompatibility of temper, but where the husband had, as here, deserted the wife by turning her out of his house, and threatening to kill her if she returned, it was his duty to make overtures to her to show that he had altered his mind, and not her duty to humbly approach him and ask if he had changed his mind and solicit him to take her back. Remonstrance was not now a necessary element in every case before divorce for desertion could be sought; it depended upon the circumstances of the case whether it was required or not— Watson v. Watson March 20, 1890, 17 R. 736—it was of less importance where the wife was the pursuer of the action than where the husband was in that position. The Court would not uphold the need of remonstrance in circumstances which showed that it was impossible to make it, or that where made it would be clearly unavailing. The husband having deserted the wife had committed the initial wrong, and it was his duty, in order to end the desertion and put himself in the right, to make overtures to his wife to return. If he had done so, the pursuer was willing to return, and not having done so, the defender must be held to have been in malicious desertion during the period of his absence— Mure v. Mure July 19, 1879, 6 R. 1353; Winchcombe v. Winchcombe, May 26, 1881, 8 R. 726; Willey v. Willey May 17, 1884, 11 R. 815; Gow v. Gow, January 29, 1887, 14 R. 443; Gould v. Gould December 22, 1887, 15 R. 229. The case of Barrie v. Barrie, November 23, 1882, 10 R. 208, might

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be quoted as a contrast to the present, there being in that case only some petty disputes between the parties to furnish a cause for their living apart.

Argued for defender—The judgment of the Lord Ordinary was sound. The statement made by the pursuer in condescendence 5 was absolutely contradicted by her evidence. The attempt of the pursuer to justify her conduct in not going back to her husband by saying that she was afraid to do so because he had threatened to kill her, must therefore—be regarded with suspicion. As to the law of the case—(1) There must be unconditional willingness on the part of the injured spouse to return if asked to do so, and that condition of mind must continue during the whole four years in order to entitle her to decree of divorce for desertion. Here it was clear that the pursuer had no wish to return to the defender— Bowman v. Bowman February 7, 1868, 4 Macph. 384. (2) The pursuer was bound to remove from the defender's mind the impression that she refused to go with him to New Cumnock in June. It might have been a misunderstanding on his part, but it was the duty of the pursuer to make intimation to him that she was willing to reside with him there if she intended to found upon his departure to New Cumnock as proof of desertion. Remonstrance must still be made unless it is impossible to make it by reason of the address of the person not being known, or at all events unless it is plain that remonstrance would be of no effect— Barrie v. Barrie, November 30, 1882, 10 R. 208; Watson v. Watson, March 20, 1890, 17 R. 736.

At advising—