Scottish Court of Session Decisions

G., pursuer, brought an action against his wife G., defender, for nullity of marriage on the ground of impotence, or alternatively, for divorce on the ground of desertion.

The defender pleaded—“1. The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. 2. The pursuer's averments so far as material being unfounded in fact, the defender should be assoilzied. 3. The defender not being incapable of intercourse with the pursuer, decree as concluded for in the first and second conclusions of the summons should be refused. 4. The defender not having been guilty of non-adherence to and desertion of the pursuer, the defender should be assoilzied from the alternative conclusions of the summons.”

The Lord Ordinary ( Blackburn) allowed a proof.

The facts of the case and the import of the evidence appear from the opinion of the Lord Ordinary, who on 30th March 1922 dismissed the action.

Opinion.—“The pursuer here asks for decree of nullity on the ground that his wife is incapable of consummating the marriage, and alternatively for decree of divorce on the ground that her unwillingness to consummate the marriage amounts to desertion in terms of the statute. Cases of nullity when they are strenuously defended present questions of difficulty, and in the present case I have found the questions raised by the evidence peculiarly perplexing.

In 1911 the parties met in India, where the pursuer held an appointment as Economic Botanist at Nagpur. They appear to have come to some sort of understanding before the defender returned home at the end of that year. The pursuer did not come back to Scotland till September 1913, and in October of that year he became engaged to the defender, he being twenty-nine years of age and she thirty-four. As the pursuer was obliged to return to India before the end of November the marriage was arranged to take place on the 5th of that month. I think there is no doubt that the defender objected to the shortness of the engagement, and that she consented to this arrangement with reluctance. She professes to have entertained at that time—and I have no doubt did—somewhat peculiar ideas on the subject of matrimony. On the one hand she held the view that corporeal union was only justified where there already existed complete spiritual union between the parties to the act, while on the other hand she apparently considered that there was no obstacle to her marrying a man with whom she was not in complete spiritual union provided he was willing to forego, temporarily at any rate, all idea of corporeal union. Holding these opinions, and owing to the shortness of the engagement, feeling uncertain of her spiritual affinity to the pursuer, she explained to him two or three days before the marriage that either he must renounce the idea of consummating the marriage for some time or the wedding must be postponed. The pursuer reluctantly and most foolishly agreed to be married on these conditions, and the marriage was accordingly celebrated on the date fixed.

Before the proof was taken the defender submitted herself to examination by Dr Haig Ferguson, who gave evidence on behalf of the pursuer, the only medical evidence in the case. His report shows that there exists no physical reason to have prevented the defender from consummating the marriage, and that while she has a highly strung nervous temperament, she did not display at the examination any evidence of unusual nervousness or manifestations of hysteria or undue excitement. Dr Haig Ferguson's evidence goes no further than his report, though he stated that there may be cases of a woman otherwise perfectly capable finding it impossible to have connection with some particular man. The defender's appearance in the box corroborated the latter part of the doctor's report. She was cool and collected and showed no signs of nervousness, but displayed some resentment of the manner in which the pursuer had behaved towards her in the last eighteen months. I formed the opinion that she was a woman of considerable intellectual ability, with a will sufficiently strong to control physical desires which she might consider to be due to weakness or any other unworthy cause.

Now I have no doubt that a compact such as was entered into between the parties before marriage was contra bonos mores and could not be enforced, but in this case it cannot be overlooked, as besides throwing some light on the characters of the parties it has a most material bearing on the events which followed. There is a difference of opinion between the parties as to the exact terms of the compact, which of itself led subsequently to mutual misunderstanding. The pursuer understood that it was to last for only one year, while the defender says that the words she used were ‘a year or two,’ and that she understood the pursuer had agreed to refrain from bodily intercourse until she was satisfied that spiritual union was sufficiently complete to justify the act. Considering the delicacy of the discussion and the circumstances under which it took place it is not surprising that this difference of opinion should exist, and I have no doubt each party honestly believed their own version.

Ten days after the marriage they left for India, where they lived together till the beginning of April 1914, when the defender with the pursuer's full consent returned to this country to attend the sitting of the United Free Church General Assembly. Thus the first of the four periods into which their married life divides, each of which requires separate consideration, lasted for five months. During this period the pursuer observed his part of the compact to the letter and refrained from making any attempt to have connection with the defender. But he made what seems to me to have been a serious blunder in view of subsequent

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events and shared his wife's bed. Up to the time when they sailed for India they occupied one bed together, on the voyage they shared a cabin with two berths, and in India they occupied separate beds in the same room as is the custom in hot climates, but the pursuer on occasions entered the defender's bed and spent part of the night with her. Although the pursuer says that ‘at this time I did not make any overtures towards having connection with her,’ it is difficult to ascribe any other purpose to his conduct in sharing her bed. While I do not doubt that he made no active attempt to have connection with his wife, I think it is impossible to avoid the conclusion that short of that he conducted himself in the manner he thought would be best calculated to stimulate her desires and to induce her voluntary surrender to his wishes. Neither party was examined in any detail as to their behaviour towards each other while sharing the same bed during this period.

The second period opens on 16th December 1914, when the defender arrived back in India and was met by the pursuer at Bombay. Her return had been somewhat postponed owing to the activities of the German warship ‘Emden’ in the Red Sea. It continued till September 1915—a period of nine months—when the defender again returned home with the pursuer's consent, which this time was reluctantly given, in order to undergo an operation for appendicitis. During this period the pursuer says that he made repeated attempts to have connection with the defender up to the 18th June, when the appendicitis attacks became worse, and'of course these attempts entirely stopped.’ Thus so far as active operations were concerned the period was restricted to six months. It is at this stage that the difference between the parties as to the terms of their compact assumes importance, as the pursuer thought it had come to an end, while the defender was under the belief that it still continued in force. With regard to the advances made by the pursuer which he describes as attempts to have connection, the defender admits that his evidence generally speaking is true. With reference to the first night at Bombay she was asked—‘Did you not understand that the pursuer was endeavouring to persuade you to relax the condition?—(A) Well, I should not have thought of it in any case; I should not have been dreaming about it in any case. I knew he was glad to have me back, and I never thought of anything further the very first night I arrived. I did not understand that he was making an attempt which I was resisting, and in any case the time of the stipulation which I had made was not nearly completed even if I had intended to give in before then.’ There is no doubt, however, from the defender's cross-examination that before the conclusion of this period she did realise that the pursuer was making attempts to have connection with her and that she resisted these attempts. She says, however, that the attempts were only made occasionally and not repeatedly. This discrepancy between the evidence of the spouses may, in my opinion, be ascribed to the fact that there does not appear to have been any clearly marked distinction between the pursuer's behaviour during this second period when he says he was attempting to have connection with the defender, and what I think must be assumed to have been his behaviour during the first period when he refrained from pushing his advances quite so far. His own evidence is sufficient to show that under the circumstances it might be easy for the defender to have failed to realise that there was any marked distinction in his purpose. The pursuer's description of his attempts which were rejected were as follows:—‘Generally I simply got into bed beside the defender, and it was always more by action and suggestion than actual words that I tried to get her to agree. Very often I made very little progress; occasionally I seemed to be getting further. Generally it was a question of taking her in my arms. She did not seem to like my getting on the top of her. That very rarely occurred. So instead I used to try to draw her on to the top of myself. (Q) Did you ever succeed in drawing her on the top of yourself?—(A) I did. That was easier than getting on the top of her, but I never succeeded in consummating the marriage. The defender either turned away if we were in each other's arms or slipped off if she happened to be on the top of me, and she never would open her legs in order to permit intercourse. This all passed in silence. (Q) Apart from any attempt to have connection with her, did the defender seem to like or to dislike endearments, embraces, and the like?—(A) It struck me that she did not dislike the embraces provided they did not go beyond a certain length. I never tried to use physical force, because I was afraid that if I used physical force it would create a scene, and my idea all through was to try to awaken the sexual instinct in the defender, and I was afraid that if I used force it might undo any progress that had been made. … Attempts such as I describe were frequent between … December 1914 and March 1915. During that period my attempts were confined, as I have described, to these attempts in bed when I did not say anything about it. In March 1915 I did have a talk with the defender about it.’ In another passage he says—‘It was dreadfully hard for me, because frequently the closeness affected me so that nature found its own relief in my case.’ In cross-examination he admits that on no occasion did the defender display any symptoms of losing her mental control.

Now it does not appear to me that this evidence necessarily implies that the defender was incapable, or indeed leads to any such inference. It seems to indicate either an absence of sexual desire or a mental control over her passions which might be described as abnormal, but the evidence in my opinion points to an unwillingness on her part to consummate the marriage rather than to any incapacity to do so caused either by structural or mental abnormality. The pursuer's conduct towards his wife on this matter was so chivalrous that it appears to me to fall short of any determined attempt

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at consummation. On his own showing he seems to have confined himself to attempts to excite her into a voluntary surrender of her person in which he failed. That no idea of her incapacity had entered his mind during this period is evidenced by the nature of their discussion in March 1915, and by his letters written to her immediately after her second return to Scotland. During the discussion in March the pursuer attempted to convince the defender that she was not legally married until consummation had taken place and that it was the duty of every married woman to submit to sexual intercourse. This seems a somewhat tactless line of argument to have adopted considering the defender's views. On the 16th of September 1916 he wrote to her referring to this duty and says, ‘So long as we refuse we cannot hope for true happiness as we are wronging ourselves and our Maker.’ It is to be observed that even after this period had come to an end he attributes the failure to consummate the marriage to the terms of the compact and not to the incapacity of the defender. It is not very surprising that his appeal to the defender on the ground of her duty had a bad effect on her. Asked, ‘Did he emphasise the aspect of duty in this matter?’ she answers ‘Yes, very much so. That emphasis affected me rather badly, because it was not at all my idea at the start; it may be a duty, and I admit it is a duty, but it was not from that point of view that I intended to enter into that closest of relations. I would have been very much more easily affected by an appeal to my affections than by a suggestion of duty.’”

Two other incidents occurred in this period to which reference should be made. It is admitted that on one night in the course of the summer the defender of her own accord left her bed and joined the pursuer in his. She says that this was due to sexual instinct, and that if the pursuer had availed himself of the opportunity it is quite possible that she would have yielded. He was, however, half asleep and contented himself with putting his arm round her. She remained in his bed till morning. The pursuer explained this incident first by saying that there had been some slight difference between them before they retired that night, and that he thought she had come to show that she wished to make it up. Later on he said it must have been after her appendicitis had developed, when he did not consider that the risk of the defender becoming pregnant should be hazarded. These two reasons are not very consistent, but it is fair to state that there is no reference to this incident on record, and that the pursuer on being reminded of it in the box might at this distance of time be uncertain of the reason why he treated an obvious advance of this sort so coldly. Some importance was attached to this incident by defender's counsel, but I do not think that much can be made of it.

The other incident was that in the month of March the pursuer refused to show the defender a letter which he had received from his mother. His explanation was that his mother had used expressions of endearment about himself which he was afraid the defender might make fun of. Judging from the way in which his mother referred to him in the witness-box his explanation is probably justified. The defender, however, was apparently already suspicious of her mother-in-law, whom she thought—and I think with some reason—took first place in the pursuer's affections. This incident was the first of several which created in the defender's mind such a feeling of jealousy towards the pursuer's parents as to create thereafter a very serious breach between them. It is unnecessary to consider whether this jealousy was justified or not, but that it existed is without doubt, and it had a considerable bearing on subsequent events.

The third period opens with the defender's return to Scotland for her operation in September 1915 and continues until September 1920—a period of five years. During the whole of this period the parties were never together. The defender took a return ticket when leaving India, and at that time it was thought possible that the pursuer would get leave in 1916 and that she would be able to return with him. By June 1916 all hope of leave had disappeared, but the defender delayed her return in order to be present at a function in November when her father's jubilee as a minister was to be celebrated. When the autumn arrived there was plague in India, travelling was far from safe, and there was a possibility of the pursuer being called to the colours, and under these circumstances her relations urged her to remain at home. This she decided to do, and it was perhaps fortunate that she did so, as the pursuer was called up in 1917 and sent to Mesopotamia, where he remained till 1920. The pursuer complains that if the defender had really wanted to come out to India she could have made the journey safely, which is possibly true. But I am quite unable to accept the suggestion that her election to remain with her own people under the circumstances amounted to desertion of her husband in the sense of the statute. A voluminous correspondence passed between the parties during this period, which does not suggest that the pursuer ever entertained this view.

The earlier letters of this correspondence are not produced, but on the defender's side they appear to have been directed to ascertain whether the first place in the pursuer's affections was occupied by herself or his mother. Having apparently convinced herself that she only came second, she wrote a letter on 17th. February 1916, in which she said that she thought their original compact should be made permanent. Apparently she fortified this proposal by reference to the expense of educating a family and the difficulties which had to be faced by parents resident in India in so doing. She also suggested as an alternative that the pursuer might divorce her, or that she herself might commit suicide. She says that this letter was written at a time when she was in a very depressed state of mind and that its main object was to extract from the pursuer some indications of affection.

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The two very lengthy letters written by her on 23rd February and 5th March suggest that the letter of 17th February cannot have been so seriously intended as the pursuer seems to have thought. Anyhow the letter of 17th February failed in its alleged purpose, and the reply from the pursuer contains a most matter of fact discussion on the points raised in her letter and the wickedness of suicide. The pursuer says that this letter of 17th February 1916 came as a great shock to him, and that from then on his feelings towards the defender altered, his affection for her diminishing. There is a corresponding change in his subsequent letters, and expressions of endearment, which were never very prominent in his letters, disappear altogether. The rest of this correspondence is mainly noteworthy as showing the rapid development of the defender's jealousy of the pursuer's parents. Her father died in the spring of 1920, and on the break-up of her home she took a small house in Glasgow where her mother resided with her temporarily. The defender states that she took this house in anticipation of her husband's return, and that she had by this time fully realised the mistake of their antenuptial compact and had made up her mind to perform all the duties of a wife to him.

The fourth period opens with the pursuer's arrival in this country on 13th September, and his conduct towards the defender was not only inexcusable but is very difficult to understand or explain. Knowing as he did the strained relations between his wife and his parents, he wrote to the defender and told her that he was going straight home to Perth and requested her to join him there. He got a letter at Marseilles from her asking him to come to Glasgow, and he cabled that he was going to Perth. On arrival he went straight to Perth without breaking the journey at Glasgow as he might easily have done. The defender wrote him several letters explaining that it was impossible for her to come there until they had ‘met by ourselves first of all,’ and begging him to stay with her just for a few nights in Glasgow. In the beginning of October she with her mother went to meet him at Perth Station. The interview was ineffectual as nothing would please the pursuer except that she should come to his parents' house. The pursuer's explanation of his conduct is that his parents were old, and that he thought it was the right thing to do. On her return to Glasgow from Perth Station the defender wrote, ‘I do not know how much or how little you are wanting me, but I do know that I am wanting you very badly,’ but this very pointed request left him untouched. On the 5th November, which was the anniversary of their wedding day, the pursuer went to a meeting in Manchester, and allowed the anniversary to pass without any communication to the defender. From there he went on to Wales to visit some relations, which somewhat discredits his excuse for not having gone to Glasgow. As two months of the pursuer's leave had now passed, the defender realised that she must humour the pursuer's obstinacy, which I think he mistook for strength of will, and with some difficulty persuaded him to pick her up at Glasgow on his way back to Perth and to take her with him. They arrived at his parents' house on Saturday, 13th November, and the defender to her surprise found that it had been arranged that they should occupy separate bedrooms for the first time since their marriage when sleeping under the same roof. When she asked the reason she was told, ‘We won't discuss it to-night.’ It was not till Monday morning that the discussion took place, and the pursuer then produced the letter which the defender had written to him on 17th February 1916 and founded on it as providing sufficient reason for the way in which he was behaving towards her. The defender says she had forgotten all about this letter, that she expressed regret for having written it, and told him that she was now willing to do as he wished and to consummate the marriage. The pursuer accepted her explanation, the letter was solemnly burnt, and apparently the reconciliation was complete. Both parties are agreed so far as to what took place at the discussion, but they are not agreed as to what followed. The defender says that the pursuer in answer to a question stated that he was quite satisfied now that she had given into his will, and that he would not insist on connection as he did not think it would be safe for her at her age—she was then forty—to run the risks of childbirth. She says that when the discussion was ended she understood that the pursuer had accepted her offer in full, but that in the interest of her safety he did not desire that any connection should take place. She says this conversation took place after the letter had been burnt. The pursuer's version is somewhat different, and he says this part of the conversation took place before the burning of the letter. He says in chief that she asked, ‘What would my position be if childbirth did not follow having connection, and I told her then that the question was not of childbirth, which did not rest with us at all, but it was the willingness to undertake the responsibility, and after that everything seemed to be all right.’ He also states in chief that she said she thought having a child would possibly kill her or would be a grave risk. In cross-examination he admits that he knew that she was frightened as to the consequences that childbirth might have upon her life, and when it was put to him whether he had not said that in these circumstances he did not wish to have connection with her and was satisfied with her having given way on the question of will, his answer is the strange one, ‘I don't remember saying that.’ It was only on being pressed to answer the question ‘Yes’ or ‘No’ that he answered it in the negative. They shared the same bed for the rest of the week. The pursuer says that on Monday night ‘She was quite affectionate to me in bed. I tried that night to have connection in the same way as in former times, not by asking but simply by trying to draw her towards me. That was no more successful; it was exactly the

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same as it was in India.’ On Tuesday he made no attempt as he had reduced the defender to tears before bedtime by insisting on remaining at Perth for the rest of his leave and refusing to go to Glasgow with her. On each of the next three nights he says he tried again without success, and on the Saturday the defender went to Glasgow to attend some meetings, proposing to return to Perth in the following week. The defender's version of what happened on the Monday night is as follows:—‘On the first night the pursuer and I were on terms of perfect friendship. (Q) Did you sleep in his arms or did he take you in his arms?—(A) I lay in his arms for part of the night, but I slept eventually by myself. (Q) Did you resist any advances that he made?—(A) No. (Q) In view of the way you understood his attitude after your explanation, did you expect him to make any physical advances?—(A) I did not. (Q) And so far as you were made aware did he make no such advances?—(A) No. (Q) And in particular did you offer no resistance to anything he wished to do?—(A) I did not. I don't understand what is meant properly by ‘advances.’ I was aware of no special advances beyond the fact that he cuddled me in his arms for a considerable time, and I was quite glad to be in his arms; that is all I am aware of. (Q) Did he endeavour to get you to open your legs, and did you refuse to let him?—(A) No. (Q) Was there any trace of hysteria or excitement that night?—(A) No, certainly not. (Q) And did you pass the night, so far as you know, in complete good feeling between one another?—(A) Yes, on my side at least—on both sides I think.’ Her evidence with regard to the other three nights when the pursuer says he attempted to have connection with her is the same, namely, that she did not understand that that was his object or purpose.

The events of this week are in my judgment the most important in the whole history of this case, and if there was no other evidence than what I have narrated above, I should have felt bound to treat the defender's story as incredible, although in the witness-box she gave every appearance of speaking the truth. But there is other evidence. On the evening of the 20th November, the very day the defender left Perth, the pursuer writes her a letter beginning—‘My own wee Girlie,’ and ending—‘It is such a waste of time your leaving me alone. The house is very quiet without you, and I have been missing you. Perhaps there will be a letter on Monday from you. I hope there will be. You didn't even leave anything behind for me to take care of. It is silly having to say good-night with a pen when we don't need to. Good-night, wee girlie, sleep sound.—Your loving Robin.’ This letter is not only very different in tone from any of the other letters from the pursuer to the defender which have been produced, but it is emphatically not a letter which a man would write to a woman who had deceived him and disappointed him as the pursuer maintains that the defender did throughout her visit. If she had refused for four nights out of the preceding five to behave towards him as he says he expected her to behave, he could never have expressed regret that she was not with him to share his bed again. The effect of this letter on my mind, coupled with the pursuer's halting denial that on the Monday of the Perth visit he had volunteered to refrain from having connection with the defender, is such that I cannot hold it proved that the defender's account of what passed at the discussion on that morning is untrue, incredible as it may appear.

Two more letters from the pursuer, dated 30th November and 6th December, are produced, which are in ordinary terms and contain no complaints of the defender's conduct. The next letter produced is dated 1st February 1921, in which he curtly announces his intention to have the marriage annulled ‘in view of the impossible situation created by your refusal to live with me as a wife.’ Subsequent to the Perth visit the pursuer was much occupied in travelling about in the endeavour, which was successful, to obtain an appointment in this country. When not so engaged he returned to Perth. He never invited the defender to join him there, and in a letter (not produced), dated 20th December, he intimated that he had no intention of coming to Glasgow to spend Christmas with her.

I find the pursuer's conduct difficult to understand or explain, and the only conclusion I am able to come to about him is that like his wife he is not quite normal. That the parties are unsuited to one another I have no doubt, and probably it would be better for both of them that the marriage tie should be severed. But it is quite another matter whether the pursuer is entitled to put an end to it by a decree which must involve a serious slur upon the defender. His right to a decree of nullity depends upon whether the failure of the defender to consummate the marriage is to be attributed to incapacity or to unwillingness. ‘Refusal of marital intercourse cannot be relied upon as a ground of decree of nullity except so far as it may under certain circumstances be regarded as evidence of some abnormal physical condition’ (per M.R. Cozens-Hardy in Napier v. Napier, 1915 P. at p. 186), but the Court may after a reasonable time draw the inference that refusal of intercourse arises from incapacity ( S. v. A., 1877, 3 P.D. 287—Sir James Hannen). In the case of A B v. C B ( 8 F. 603), where it was held on the facts that incapacity must be assumed from the wife's refusal, Lord Dunedin points out (p.609) that ‘this is a question of fact and each case must be judged on its own circumstances,’ and he quotes a passage from the opinion of Lord Penzance in the case of G. v. G. ( 2 P. & D. 287) to the effect that ‘the basis of the interference of the Court is not the structural defect but the impracticability of consummation.’

There is no structural defect in this case and no evidence whatever of any nervous or hysterical affection which, had

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it existed, might have made connection impracticable and so have been held as equivalent to a physical obstruction. During the first period of the marriage it is admitted that the pursuer of his own free will abstained from any attempt at consummation. During the second period the defender thought that the pursuer was not adhering to the terms of his compact, and it seems to me that her refusal must be attributed to unwillingness. At all events I do not think that it would be fair to infer from her refusal during this period of six months that it arose from incapacity. During the third period the parties were never together, and it is only during the one week of the fourth period that they were together under circumstances which might reasonably infer incapacity rather than unwillingness. This is why I regard the evidence of what passed at the discussion between the parties on the Monday of that week as of the greatest importance in the case. As already stated, I am of opinion on the evidence that the pursuer must have made some such suggestion as the defender says he did, and accordingly I cannot draw the inference which I should otherwise have done, that her subsequent failure was due to incapacity. I may add that from the pursuer's own description his attempts to have connection with the defender on this as on former occasions do not appear to have been very determined, and so far as I can judge would be quite capable of being misunderstood by the defender if she in truth believed that he had no intention of completing the connection.

In my opinion this is not a case in which the facts justify a decree of nullity.

The conclusion for divorce on the ground of desertion may be dealt with very shortly. Esto that refusal to consummate may amount to desertion, on which I express no opinion, it cannot in this case be said that the defender has been maliciously and obstinately in desertion for four years. There were in fact only six months in one period and six days in another in which she could have been capable of desertion in this sense. In my opinion there are no relevant grounds on which the alternative conclusion of the summons can be supported.

Under the whole circumstances I think the proper course to adopt is to dismiss the action, and I shall accordingly do so.”

The pursuer reclaimed, and argued—There was in the present case sufficient evidence to entitle the Court to infer incapacity on the part of the defender— A B v. C B, 1906, 8 F. 603, and per L.P. Dunedin at p. 609, 43 S.L.R. 411, A B v. C D, 1900, 38 S.L.R. 559; M. v. G., 1902, 10 S.L.T. 264; G. v. G., 1871, L.R., 2 P. & D. 287, F. & P. 1897, 7 L.T. 193; Vickery v. Vickery, 1921, 37 T.L.R. 332, C. v. C., [1921] P. 399. On the evidence the pursuer's case could not be treated as one of pure unwillingness on the part of the defender. Alternatively the pursuer was entitled to divorce on the ground of desertion. Refusal of intercourse was equivalent to diverting from the other's company in the sense of the old statute. Company as there used meant matrimonial company in the full sense and not merely society. If the pursuer was right here, the break in time did not matter, because the attitude of the defender throughout was an attitude of persistent refusal—Fraser, Husband and Wife, vol. ii, pp. 1209 and 1210.

Argued for the defender—On the evidence there was no ground for inferring incapacity on the part of the defender. Looking especially to the peculiar conditions under which this married life was entered on, the utmost that could be inferred was unwillingness. Non-consummation was only an item of evidence in inferring incapacity. Consensus non concubitus facit matrimonium, and there was no warranty as to the quality of the capacity— Lang v. Lang, 1921 SC 44, 58 S.L.R. 38. The real question was whether parties at the time of interchange of consent were capable of intercourse. There were several classes of cases—(1) Structural incapacity, (2) functional incapacity, (3) incapacity derived from repulsion towards a particular individual where the ground was much more doubtful and the medical evidence only inferential, (4) incapacity inferred from non-intercourse merely from efflux of time and without explanation. This last ground was based on the case of A B v. C B, 1906, 8 F. 603, 43 S.L.R. 411, but the ground of judgment in that case could not be applied to the present case. The other cases cited by the pursuer were not in point. This case differed from all these in the inversion of the married life. The whole evidence in the case pointed to wilful refusal and not incapacity, and wilful refusal was not a ground for decree of nullity— Napier v. Napier, [1915] P. 184; Finegan v. Finegan, 1917, 33 T.L.R. 173. If the pursuer was not entitled to decree of nullity, neither was he entitled to succeed under his alternative conclusion of divorce for desertion. There was no warrant for the construction of the old statute which the pursuer put on it. The passage in Fraser, Husband and Wife, cit. sup., gave no support to it, and it had been expressly negatived in two Outer House Cases— X v. Y, 1914, 1 S.L.T. 366, and C v. D, 1921, 2 S.L.T. 82. Even if the pursuer's construction was correct, the break in the period would bar the remedy. Desertion could only count from the burning of the letter at Perth.

At advising—