Scottish Court of Session Decisions

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This was an action of divorce for desertion at the instance of James Taylor Cathcart younger of Pitcairlie against his wife Mary Unwin or Cathcart of Wootton Park, Staffordshire.

The defender admitted that she had left the pursuer in September 1887, shortly after the marriage, and had not since that date resided with him. But in defence to this action she pleaded— “(1) The defender not having been guilty of wilful and malicious non-adherence to and desertion of the pursuer, ought to be assoilzied with expenses. (2) The defender being justified in living apart from the pursuer in respect of his cruelty as alleged, ought to be assoilzied with expenses.”

The facts upon which the defender chiefly relied in support of these pleas were (1) that the pursuer had never sincerely desired her to return, and had not used all reasonable means to induce her to do so; (2) that in 1888 he came in the middle of the night to Ashbourne in Derbyshire, roused her out of bed, and compelled her by force to accompany him to Wootton, a distance of seven miles, where she was locked in a room and detained against her will with a hospital nurse; and (3) that in 1891 he caused her to be apprehended at the entrance of the Royal Courts of Justice in the Strand, London, under an urgency lunacy order, and forcibly taken against her will to a private lunatic asylum, where she was kept for five months until she was pronounced to be sane by the verdict of a jury.

The facts sufficiently appear from the opinion of the Lord Ordinary ( Low), who by interlocutor dated 15th July 1899 found that the defender had been guilty of wilful and malicious non-adherence and desertion of the pursuer for the space of four years, and pronounced decree of divorce accordingly.

Opinion.—“The pursuer and the defender were married in July 1887. Immediately after the marriage they went for a yachting tour on the west coast of Scotland, and then paid a visit to the pursuer's father at Pitcairlie, in Fifeshire. While they were residing there the defender, on 23rd September, without any warning, left the pursuer, and she has never since resided with him. In the present action, accordingly, the pursuer seeks divorce on the ground of desertion.

The defender alleges in her defences that one of her reasons for leaving the pursuer was his heartless treatment of her and his indifference and neglect. Apart from certain charges which the defender made at the time against the pursuer, and to which I shall presently refer, it is plain that no conduct on the pursuer's part has been proved which could justify the defender in leaving him. On the contrary, I see no reason to believe that the pursuer's treatment of his wife was otherwise than unexceptionable.

The true reason why the defender left the pursuer was that she believed that he had been unfaithful to her. There was, in fact, no foundation whatever for that belief, and therefore it could not justify the defender in refusing to adhere. It seems to me, however, to be more than doubtful whether the defender can be regarded as having been responsible for either her beliefs or her actions at the time when she left Pitcairlie.

In proceedings in lunacy which the pursuer instituted in London, a special jury found, upon 21st July 1891, that the defender was of sound mind at that date. I am unable, however, upon the evidence, to come to any other conclusion than that for a period prior to that date, and after she left Pitcairlie, the defender was of unsound mind, and that being so, it seems to me, for reasons which I shall presently state, to be difficult to resist the inference that at the time when she left Pitcairlie mental derangement had begun to show itself.

Before leaving Pitcairlie the defender had charged the pursuer with having committed adultery, first at Tobermory, which they visited on their yachting tour, and again at Pitcairlie.

It appears that the yacht having put in at Tobermory the pursuer went to the public reading-room there, and the defender seems to have conceived the idea that the reading-room in that primitive town was a house of ill-fame, to which the pursuer went for immoral purposes.

The second charge was that the pursuer had committed adultery with a housemaid at Pitcairlie, when, being unwell, he was occupying a bed in a dressing-room communicating with the bedroom which the defender occupied.

If that was all it would not be sufficient to justify the inference that the defender was labouring under an insane delusion, because it is not an uncommon thing for a jealous wife to believe evil of her husband upon very slender grounds, although I do not think that I have ever had experience of a case in which the belief was so absolutely without any reasonable basis.

There is, however, another incident which I cannot explain upon any other supposition than that the defender was not in her right mind. At the time when the defender left him the pursuer was suffering from a chill, and by the advice of his doctor he was sleeping in the dressing-room. The pursuer in his evidence said, most unwillingly, and only because his counsel pressed him to do so, that his wife suggested that her maid should sleep with him. The defender also made the same suggestion to Dr Niven, who was attending the pursuer. Dr Niven's evidence is as follows:— ‘In the course of my visits I remember Mrs Cathcart taking me into a bedroom one day to ask me about certain matters. On that occasion she suggested to me that seeing that she and her husband were to sleep separately she thought it would be better that her husband should sleep with her maid. I expressed myself as shocked at the suggestion. She said she thought there was nothing very strange in that at all, but the conversation was cut short by the maid coming into the room,

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and I was very well pleased. (Q) Did she say anything as to the maid being a nice, clean, tidy woman? (A) Her own maid was that, and that was the reason why she would be very willing that he should sleep with her. I said this was something dreadful, and she said there was nothing very astonishing about it.’

Then in cross-examination Dr Niven was asked—‘What were the exact words about sleeping?’ and he answered—‘So far as I remember she said quite plainly that she thought the best thing would be for her husband to sleep with her maid, that she was a nice, clean, tidy woman, and that she (Mrs Cathcart) would have no objection.’

The defender denied that anything of the kind occurred, and from the way in which she received the question, I am satisfied that she had no recollection of making the suggestion, and that the idea that she should have done so is now inconceivable to her.

I have no doubt, however, that the incident did occur. Nothing can be suggested against Dr Niven's credibility, and I do not think that there is any reason to doubt the accuracy of his recollection, because the matter was of a kind which must have made a deep impression upon his memory.

Now, I cannot imagine a sane woman in the defender's position in life making such a proposal to Dr Niven. It was suggested that she was anxious to get something against her husband, and that what she proposed was a scheme to entrap him. But no woman in her sound mind would have thought of attempting to get a respectable professional man like Dr Niven to aid her in such a scheme.

It might be possible to construe what the defender said to Dr Niven as meaning that the maid should sleep, not with the pursuer, but in the same room, so as to be at hand to attend to him if required. In ordinary circumstances such a proposal would have been sufficiently startling, but when made by a wife who believed that her husband was at the time engaged in an illicit connection with another maidservant in the same house, it is incredible except upon the supposition that she was not responsible for what she said.

The case therefore stands thus. The defender made against the pursuer and believed charges of infidelity of the most improbable description and without any foundation whatever; she made the extraordinary proposal to which I have referred to the pursuer and to Dr Niven, and she subsequently became, I think, evidently of unsound mind. The inference that the defender was already of unsound mind when she left the pursuer seems to me to be so strong that I do not think it would be possible to affirm that she was then responsible for her actions and capable of malicious desertion.

I do not think, however, that that is conclusive of the case, because many years have elapsed since the defender must be regarded as having fully regained her reason, and during all that period she has persistently refused to hold any communication with the pursuer.

In 1891 the defender's conduct became so peculiar that the pursuer had her confined in a lunatic asylum, and she had been there for some five months under skilled medical treatment prior to the inquiry, in which the jury pronounced her to be of sound mind. Now, no one challenges the verdict of the jury, and there is no suggestion that since the verdict the defender has had a relapse, or that she is not now of sound mind. But the verdict was pronounced upon 21st July 1891, and since that date the defender, although of sound mind, has lived separate from the pursuer, and has refused to see him or to bold any communication with him. In these circumstances I am of opinion that, so far as desertion on the defender's part is concerned, there is sufficient to justify decree, but the questions remain—(1) whether the pursuer used all reasonable means to induce the defender to adhere? and (2) whether the pursuer's conduct was such as to justify the defender in refusing to return to him?

It was contended for the defender that the pursuer had never shown any bona fide desire to be reconciled to her or to receive her back, and reference was made to certain letters which the pursuer wrote to the defender after she had left him in 1887 and in 1888.

The pursuer was asked in cross-examination about letters which he had written to the defender in October 1887, and which were unfavourably commented on by the

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Lord Chancellor in proceedings in the High Court of Justice in London (L.R., Ch. Div., 1893, vol. i. p. 473). These letters have not been produced, and no explanation was given why they have not been produced. It may be that they could not be recovered, but I do not know that that was the case. If, however, the defender desired to found upon these letters, the same means of recovering them were open to her as to the pursuer.

There are, however, produced one letter from the pursuer to the defender dated in December 1887, and four letters dated respectively in March, May and June 1888, from which I think it may be sufficiently gathered what was the attitude which at that time the pursuer was taking towards the defender.

In regard to the pursuer's letter of 23rd December 1887, I do not think that much fault can be found with it, because although it does not display any affection on the pursuer's part for the defender, it must be remembered that it was written under the sense of a very great wrong which he suffered at her hands. She had groundlessly accused him of being unfaithful under circumstances which, if true, involved uncommon moral depravity on his part, and she had also apparently accused him to others of having venereal disease. She had not only made these accusations, but adhered to them, and the position which she seems to have taken up was, that although (judging from her letters) she was not by any means unwilling to be reconciled to the pursuer, she insisted that he should admit that the accusations were true, or at all events that they were not delusions on her part. I think that great allowance is to be made for letters written under such circumstances. I may add that until March 1888 I do not think that the pursuer considered the defender to be of unsound mind, although he was unable to account for her apparent belief in the charges which she made against him.

The only other letters which I think it necessary to refer to in detail are those of 8th June and 13th August 1888.

The former letter seems to me by far the most unfavourable to the pursuer of any of his letters. I have been unable to discover the precise circumstances under which it was written, but it was undoubtedly an extremely unkind and harsh letter, and what made it in my opinion more inexcusable was that at that time the pursuer must have been at all events very doubtful of the defender's sanity.

I do not, however, think that the letter can be regarded as an act of cruelty on the pursuer's part which would have justified the defender in refusing ever again to live with him. Its importance is as bearing

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upon the question whether the pursuer used all reasonable means to effect a reconciliation with the defender, and, regarded from that point of view, the letter is unfavourable to the pursuer.

The letter of 13th August was written after the defender had been conducting herself in such a way as to make it plain to the pursuer that if not actually insane she was on the verge of insanity. The object of the letter was to try to induce the defender to join the pursuer at Wootton Park, and live quietly with him there, the pursuer's hope being that with quietness and care she might be restored to mental health. That object was entirely laudable, but the tone of the letter was not calculated to bring about the desired result. I can understand and make allowance for the pursuer's feelings of indignation and resentment at the way in which the defender had treated him, but when he knew that the defender's mind was unhinged I think that he might have, and ought to have, written more kindly to her.

I see no reason, however, to suppose that the letter was not written in good faith. If, as was suggested, the pursuer's true object was to get control of the defender with the view of putting her into an asylum, I think that he would have written a letter more calculated to induce her to meet him at Wootton, and put herself under his protection.

The letter of 13th August 1888 terminated the pursuer's correspondence with the defender at that time. There followed immediately after the letter an attempt on the pursuer's part to get the defender to live at Wootton—a matter upon which I shall have something to say presently. In January 1888 the defender brought an action of divorce against the pursuer on the ground of adultery and cruelty. The charge of adultery was not pressed, but the defender asked separation on the ground of cruelty, and after some procedure the action was dismissed in June 1889. The pursuer afterwards had the defender apprehended upon an urgency warrant and confined in a lunatic asylum, and that was followed by the inquiry in lunacy in which the defender was found to be of sound mind. There was subsequently prolonged litigation in the High Court of Justice in regard to the costs of the proceedings in lunacy, in which final judgment was given in the end of 1892. I shall afterwards consider how far the pursuer's conduct in these proceedings was such as to justify the defender's subsequent refusal to adhere. In the meantime I would only remark that during the currency of the proceedings I do not think that it would be reasonable to blame the pursuer for not making advances to the defender.

Before considering the communications which the pursuer made to the defender after 1892, I have a general observation to make on the correspondence of 1887 and 1888. I do not blame the pursuer for not having asked the defender at that time to return to him unconditionally. So long as she persisted in her charges against him, to do so would have been to invite an impossible situation. But a husband who seeks the remedy of divorce for desertion must show that he has used all reasonable means to induce his wife to adhere, and in the circumstances in which the pursuer was placed I think that his proper course would have been to try to bring the defender to see that the charges which she made against him were unfounded, and that there was no reason why she should not live with him. I am willing to believe that that was the course which the pursuer intended to follow, but judging from the letters which have been produced it seems to me that he adopted a method which was more calculated to estrange the defender still more than to pave the way to a reconciliation. The pursuer's letters are not, in my judgment, those of a husband who sincerely desired his wife to return to him, and whose only object was to persuade her that she had left him in error, and that there was no good ground for their remaining separate.

The fact, however, that for a time after an unwarranted desertion by his wife the husband has not made such advances to her as can be regarded as a reasonable attempt to bring about a reconciliation, will not justify her in refusing to adhere if he subsequently approaches her in a proper spirit. But that appears to me to be what happened in this case.

On 12th January 1893 the pursuer wrote to the defender the letter printed in the Appendix. [This letter was as follows:— “My dear Mary—Although you are so obstinate in refusing to encourage any kindly feeling between us, you will not, I am sure, object to my writing to wish you a ‘Good New-Year,’ and send you my best wishes for 1893. I haven't heard from you for a long time, and as I thought you didn't want to see me I have not tried to meet you, although I still hope that some day things may be better between us. I may perhaps be in London sometime in the spring; if I am, would you like to see me? You might at least, I think, give me a cup of tea some afternoon. If you take any interest in what I am doing, you may like to hear about the black cattle which you used to be fond of. There are some yery good ones now. One bull got 1st prize at the great All England Show at Doncaster the year before last, and I hope to do the same at Chester this year with another if he goes on well. The herd is getting quite famous, but perhaps you have forgotten all about them now for other things—although I hope not.— J. T. Cathcart.”] That was very soon after the final settlement of the litigations which had been going on between the parties. The criticism which was made upon that letter was, that even then the pursuer did not ask the defender to return to him. If he had done so I should have regarded the letter with some suspicion. The breach between the parties had been so wide that the pursuer could only hope to bridge it over by gradually establishing better relations with the defender. In such circumstances

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I think that the letter was a very proper one, and I have no reason whatever to doubt its good faith. The letter was returned by the defender to the pursuer. In 1894 the pursuer discovered where the defender was residing, and he tried to obtain an interview with her, and wrote to her several times, but the defender refused to see him and returned his letters. In 1896 and 1898 the pursuer again wrote to the defender in terms to which no exception can be taken, but the letters were not answered.

It is plain that from 1892 onwards the defender has been fixed in her resolution to have no further communications with the pursuer, and during that period I do not think that he could reasonably have been expected to do more than he did with the view of effecting a reconciliation.

The question remains whether the pursuer's treatment of the defender at Ashbourne in August 1888, and again when he had her taken by force to a lunatic asylum in February 1891 was such as to justify her in refusing to live with him.

What occurred at Ashbourne seems to me to raise a question of difficulty. The pursuer was at that time impressed with the necessity of having the defender placed under some control. She had been conducting herself in a very eccentric way, and the pursuer believed that, if not insane, she was upon the verge of insanity. He had been advised that quiet, the absence of cause of excitement, and careful nursing might result in the defender's restoration to mental health. He accordingly wrote to the defender the letter to which I have already referred, proposing that she should meet him at Wootton Park. The pursuer himself went to Wootton, and with the view of having his wife properly attended to engaged as servants two trained nurses and a manservant, who also appears to have had some experience in a lunatic asylum.

So far I do not think that, apart from the terms of the letter of 13th August, upon which I have already commented, any blame attaches to the pursuer. On the contrary, I think that it was obviously better to try what could be done for the defender by rest and care in her own house than to rush at once into lunacy proceedings.

On the evening of the 20th or 21st of August the defender drove up to the door of Wootton House, but when she heard that the pursuer was there she drove away again. The pursuer learned that she had gone to a small inn at the village of Ashbourne, about seven miles distant. He accordingly went there the same night with one of the nurses and the manservant and, at an hour which was certainly considerably after midnight, roused the defender from her bed and compelled her against her will to dress and accompany him to Wootton. Considering that the defender was at the time, to the pursuer's knowledge, in a very critical state, and that any unusual excitement was likely to do her harm, I think that it is difficult altogether to justify the pursuer's action.

I am satisfied, however, that the pursuer acted in good faith, and that any error which he committed was an error in judgment only.

The pursuer was placed in a very difficult position, in which it was not easy to determine what was the proper course to follow. He was satisfied — and he was acting under advice both medical and legal—that it was essential that the defender should for a time lead a life of rest and careful attention to her physical condition, and he found her upon the night in question within easy reach of Wootton, but prepared to leave the following morning, presumably again to resume the aimless wandering life which was rapidly leading her into madness. He accordingly resolved to take her to Wootton at once.

Of course it may be said that he should at all events have waited until the morning. But the pursuer gives a quite intelligible if not altogether satisfactory reason for not having done so. He says that he was very anxious that the defender should not be talked of as a lunatic, and he feared that if he waited until the morning when people were about there might be a scene, and as the defender was well known in Ashbourne and the neighbourhood he wished to avoid a scandal.

It is said, however, that the pursuer used a degree of force to compel the defender to go with him to Wootton which when used to a woman in her condition amounted to cruelty.

The pursuer says that although the defender was unwilling to accompany him she suffered him to lead her by the hand from her room to the carriage, and that no greater force was used.

Now, I do not suggest that the pursuer was not an honest witness—on the contrary, my impression was entirely the other way—but I think that this is a matter in which it is probable that he, without any intention to speak anything but the truth, somewhat minimised the amount of force which he used. On the other hand, I have no doubt that the defender considerably exaggerated it.

There is no evidence upon the point except that of the pursuer and the defender, although there were apparently three other persons who must have seen what happened—namely, the landlady of the inn, the nurse, and the manservant.

I do not, however, think that the defender can take benefit from the fact that none of these persons was called as a witness, because upon the question whether she is justified in refusing to adhere she is, I take it, pursuer in the issue.

The conclusion which I come to on the evidence is, that although the defender was unwilling to go to Wootton, and protested against being taken there, she did not offer actual physical resistance, and that although some force was used to lead her from the room to the carriage, there was nothing in the nature of a struggle.

That being so, and it being established, in my opinion, that the pursuer was actuated by no other motive than to do what

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was best in the defender's interest, I do not think that what occurred at Ashbourne amounted to sævitia upon his part, or (assuming that something less than sævitia will constitute a good defence to an action of divorce for desertion) to conduct which would constitute a ‘reasonable cause’ for refusal on the defender's part ever again to live with her husband.

In regard to the execution of the urgency order, it was, no doubt, a strong step, but in the circumstances I am of opinion that it was justified. The defender's condition at that time was such that, in my opinion, it was the pursuer's duty to take measures for her protection. The defender would not submit to be examined by medical men, and in resorting to an urgency order the pursuer acted under the best advice which he could obtain. No doubt the defender was taken to the asylum by force, and the scene must have been a very painful one, but it was the result of her own unhappy condition, and not of anything for which the pursuer can be blamed.

I think that it is plain enough that the reason of the defender's refusal in recent years to hold any communication with the pursuer was what happened at Ashbourne and in the lunacy proceedings. The impression which I gathered from her evidence was that she believed that she never was insane, and that the action of her husband at Ashbourne and under the urgency order amounted to an outrage for which there was no justification.

If, however, the pursuer's conduct at Ashbourne, however unwise, was taken in good faith, and with the sole object of doing what was best for the defender, as I think it was, and if the proceedings under the urgency order, however painful, were justified by the defender's condition, as I think they were, the defender's belief, however honest, that the reverse was the case, cannot in law be held to be a justification of her obstinate refusal to adhere.

Upon the whole matter, I have, although not without difficulty, come to the conclusion that the pursuer is entitled to decree.”

The defender reclaimed, and argued—The defender was now bound to concede for the purposes of this case that the pursuer did not commit adultery. But it was proved that the defender left the pursuer in the bona fide belief that he had. Her desertion therefore was not originally malicious. Indeed, it was not now maintained that it was. But it was contended that the defender had continued in wilful and malicious desertion since 1893. The pursuer was not now entitled to take any terminus a quo from which to date the desertion, unless at such date he would have been entitled to a decree of adherence. In this case the wife's non-adherence was justified by the husband's conduct generally, and more particularly by his conduct in relation to (1) the Ashbourne incident, and (2) the lunacy proceedings. Even if it were conceded, as it was not, that he was acting in bona fide, and that he was justified in the circumstances in taking steps to secure the confinement of his wife, the methods which he adopted were unnecessarily violent and inconsiderate, and were such as to show that he had taken up and maintained an attitude of strong hostility to the defender, and that his actions were inspired at least as much by anger against her as by regard for her true interests. He might have attained all that in any view he was justified in desiring without resorting to such extreme measures as he in fact chose to adopt, and apart from that he ought at least to have tried other ways of having her compelled to submit to medical examination before he took such violent means as carrying her off forcibly in the middle of the night, and having her publicly seized under an urgency order. His conduct in this respect had been severely commented on by the Judges in England, who had all the facts before them— in re Cathcart [1892], 1 Ch. 549, per Bowen, L.J., at p. 567, and Kay, L.J., at p. 569, affirmed [1893], 1 Ch. 466. With such proofs as the wife had here of her husband's hostility towards her, and of his utter disregard for her feelings, she was not bound to adhere. It did not follow that even if she had no sufficient defence to an action of adherence, she had no defence to an action of divorce for desertion— Mackenzie v. Mackenzie, March 18, 1893, 20 R. 636, per Lord Young at p. 665. Still less was it necessary that the wife should prove such conduct on the part of the husband as would entitle her to a decree of judicial separation— Mackenziev. Mackenzie, cit., and 22 R. (H. L.) 32, where the view of the majority in the Court of Session was not dissented from. All that the wife was bound to prove was that her non-adherence was not malicious and obstinate— Mackenzie v. Mackenzie, cit. No doubt a decree of judicial separation could only be pronounced upon proof of adultery, or physical cruelty actual or apprehended— Russell v. Russell [1895], p. 315, and [1897] A.C. 395. But here the parties were in a different position. [ Lord M'Laren—The law relating to judicial separation is the canon law so far as adopted by the common law of Scotland. But the law relating to divorce for desertion is purely statutory, and the question is, whether the desertion has been malicious, obstinate, and without reasonable cause.] That was so. All that had to be proved was that the wife's non-adherence was justified by the husband's conduct. That had been amply demonstrated here. It was to be noted that the result of the Russell case, cit., was that although the husband was refused decree of judicial separation, the wife was refused decree for restitution of conjugal rights. The pursuer's attitude of hostility towards the defender was illustrated, and her attitude towards him was justified, by the tone of his letters, which were cold and hard, whereas her letters to him were affectionate and impulsive. Since 1891 there had been no communication between the parties. [ Lord Trayner—Was her refusal to open and receive his letters after that date not grossly contemptuous, and improper

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conduct in a wife towards her husband?] She was justified in her attitude by his previous conduct towards her. The defender also founded upon the letters as showing that the pursuer had no bona fide desire for his wife's return, and had made no adequate efforts to secure it, and argued that this was, apart from any other reason, sufficient ground for refusing him decree of divorce for desertion— Watson v. Watson, March 20, 1890, 17 R. 736.

Counsel for the respondent were not called upon.