Scottish Court of Session Decisions

John Johnston, engine-fitter, 310 Cathcart Road, Glasgow, on 31st May 1902 brought an action of divorce on the ground of adultery against his wife Maggie Wilson or Johnston, and against the Rev. Emmanuel Morgan, minister of the parish of Riccarton.

The circumstances and dates as set forth on record were as follows:—The marriage took place on 1st January 1900. For six years before the marriage the defender had been the co-defender's housekeeper. The spouses at first took up house in Glasgow, where the pursuer was employed as an engine-fitter. At the Whitsunday term, 1900, they entered into occupation of a cottage near the manse of the co-defender, and belonging to the co-defender. The pursuer's tenancy of this cottage lasted for a year, i.e., till Whitsunday 1901, but the pursuer himself ceased to live there (except at week-ends) in October 1900, when he gave up a situation which he had obtained in Kilmarnock and returned to the service of his former employers in Glasgow. The defender on 28th May 1901 joined him at a new house which he had taken in Glasgow, and to which he had removed the cottage furniture. But she only remained one night there. Next day she left the pursuer and never lived with him afterwards. It was not alleged that the defender and the co-defender ever met after May 1901. The case for the pursuer was, that from the date of the marriage down to May 1901 the defender and co-defender were carrying on a continuous course of illicit intercourse, and that this was a continuation of illicit relations which had existed for a considerable time prior to the marriage. The pursuer also averred four specific occasions on which adultery was said to have taken place in the manse between July 1900 and January 1901.

The record was closed on 15th July 1902. Proof was led in the Outer House on 30th October 1902 and following days. The Lord Ordinary ( Stormonth Darling), by interlocutor dated 26th November 1902, assoilzied the defender and co-defender from the conclusions of the summons.

The pursuer reclaimed, and lodged a minute of amendment stating that, since the date of the Lord Ordinary's interlocutor the pursuer had received information which led him to believe that after the defender left her house in Glasgow she committed adultery with the co-defender, and he therefore craved leave to amend the record by adding the following articles to the condescendence for the pursuer in reference thereto, and in reference to another discovery, also made since the date of the Lord Ordinary's interlocutor in reference to the co-defender's relations with another of his servants:—“(10) Since the defender left the pursuer's house she has kept up communication with the co-defender. Shortly before August 1901 the codefender gave the defender a certificate of character for the purpose of enabling her to obtain a situation as a domestic servant. The defender used this certificate in applying for a situation to the tenant of Glenbrittle House, in the Island of Skye. The said tenant engaged the defender as a housemaid under the name of Maggie Wilson, and she arrived at Glenbrittle on or about the 7th of August 1901. (11) On or about the 21st of that month the codefender left Riccarton to visit the defender, and arrived at Carbost on or about said date. He stayed at Carbost Inn, which is nine miles from Glenbrittle, and thereafter visited the defender at Glenbrittle on the following day. He called at the kitchen door of the house, where he was received by the defender early in the afternoon, and went a walk with her. During the course of said walk, which was on an extremely unfrequented road, the defender and co-defender diverged from the road at a point about two miles from Glenbrittle in order to reach a secluded spot on the side of a stream named A-corre-Ghreadaidle, where they committed adultery on said date. The defender and co-defender were alone in each other's company for a period of about four hours. The defender was seen with the co-defender by her master, and when she returned to Glenbrittle about 7.30 in the evening she was dismissed from his service, and left his house the following day. The co-defender during said visit was not dressed in clerical costume, and he did not disclose his name either to the landlady of the inn or to any person whom he met. The pursuer obtained a clue to the above information after the Lord Ordinary had made avizandum with the cause, as he only then received a letter from the landlady of the Carbost Inn. (12) Further, a servant whom the codefender had in his employment prior to the engagement of the defender, and for some time thereafter, and who is now in domestic service in Edinburgh, was seduced by the co-defender and became pregnant. She was in the co-defender's service during all or part of 1893 and in the beginning of 1894, and during this time the co-defender had immoral relations with her. When he discovered that she had become pregnant he made secret arrangements for the said servant's removal to Edinburgh, where on 14th March 1894 she gave birth to an illegitimate female child of which the codefender is the father. An extract of the birth is herewith produced and is referred to for the name of the said servant. This child still survives and the co-defender regularly makes payments for its aliment. The pursuer could not have discovered the said information earlier owing to the

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secrecy adopted by the co-defender in making the said arrangements.”

Argued for the pursuer—It was competent after the Lord Ordinary had given his decision on the closed proof, but before final judgment was given on a reclaiming-note, for the pursuer to state new relevant facts which had come to his knowledge since the proof was closed. It was for the Court, having regard to the whole circumstances of the case, to determine whether the new facts so discovered were such that it was necessary for justice being done in the case that an inquiry as to these facts should be made. The facts averred in the articles proposed to be added to the condescendence were relevant, and were res noviter in the proper sense of the term. The facts averred in the proposed articles (10) and (11) were entirely distinct as to time and locality from the circumstances as to which proof had been led. In regard to the averments in proposed article (12), the misconduct of the co-defender with another woman was competent corroborative evidence of adultery with the defender— Whyte v. Whyte, November 15, 1884, 11 R. 710, per Lord Mure, 21 S.L.R. 470; King v. King, February 2, 1842, 4 D. 590, at p. 597; Forster v. Forster, 1 Haggard, C.R. 144, per Lord Stowell. The misconduct of the co-defender alleged was with a woman who, as servant in his house, occupied the same relation to him as the defender did for six years before her marriage. This special circumstance in any view made the proposed averment relevant. There had been no failure of diligence by the pursuer in not discovering and averring these new facts at an earlier period, as they were all, as regards time and place, outside the circumstances and region of inquiry to which the proof before the Lord Ordinary had been directed.

Argued for the defender and co-defender—The averments proposed were not res noviter in the proper sense. Allegations of res noviter must be looked at strictly, and it was not sufficient to entitle the pursuer to a proof of these new averments that he should state that he did not know the facts before the case went to trial and the decision of the Lord Ordinary was given— Stewart v. Gelot, July 19, 1871, 9 Macph. 1057, per the Lord Justice-Clerk at p. 1060; Hansen v. Craig, July 16, 1858, 20 D. 1306. The effect of allowing a proof of the amendmends proposed in articles 10 and 11 would be to allow the pursuer to put forward and prove a new case. The averments in the proposed article 12 were irrelevant. The conduct of the co-defender in relation to another woman nine years before the events on which the action was based was not competent corroborative evidence of his having been guilty of adultery. In the cases referred to by the pursuer the evidence admitted was as to the conduct of one of the spouses, and such evidence had never been admitted as to the conduct of a codefender.