Scottish Court of Session Decisions

Lord Fleming'sOPINION.—[After examining the evidence as to adultery and giving his reasons for holding that adultery had been proved]—A difficult question, however, arises, with regard to whether the pursuer has not disentitled himself to the remedy of divorce on account of his connivance at his wife's misconduct. The defender has not stated on record any plea of lenocinium or collusion, but, in the case of Munro v. Munro, (1877) 4 R. 332, the defender was allowed to raise this question although there was no plea or statement on record with reference to it. Further, it is pars judicis to consider this question if it appears to arise on the facts in any case, and at an early stage I indicated to the pursuer's counsel that the question would require to be considered in the present case. Although no plea is taken on the matter by the defender, there is an averment raising the question at the end of answer 5, and the defender produced the letter No. 17 of process, which is in the following terms:—“Annie, enclosed you will find alimont. what about doing something so as we can be clear of one another. I'm fed up with this life. I no longer love you so it's up to you to do something. HUGHIE.” I have no doubt whatever as to the meaning of this letter. I believe it was a deliberate invitation on the part of the pursuer to his wife, the defender, to commit adultery in order that he might be able to obtain decree of divorce. Further, I believe the defender's evidence that similar invitations had been made to her verbally and in writing, and also that the pursuer had confessed to her that he had committed misconduct, and invited her to take proceedings against him. I reject without any hesitation the suggestion that the letter was written in rixa, and I may say that, if this case had in any way depended upon the pursuer's credibility, his attempts to explain this letter would not have induced me to take a very favourable view of the reliability of his testimony.

The question, however, remains as to whether the letter constitutes a bar to the pursuer obtaining the decree to which I have found him otherwise entitled. I have come to the conclusion that it does. In the case of Wemyss v. Wemyss, (1866) 4 Macph. 660, Lord Justice-Clerk Inglis said (at p. 662): “It is not necessary to define lenocinium precisely. It is safer to keep to general description; but I may say that I have not the least doubt that, when a husband is accessory to the crime of adultery by his wife, or is participant in the crime, or is the direct occasion of her lapse from virtue, he will be obnoxious to the plea of lenocinium.” In Marshall v. Marshall, (1881) 8 R. 702, it was held that a pursuer, who had married a prostitute and some years later suggested that she should return to her former mode of life, was barred by his conduct from insisting in an action of divorce for alleged adultery on her part. The pursuer in that case was not in any way concerned with the acts of adultery founded on, but the Court held that his advice to his wife to return to her former life and his failure to support her were what induced her to commit misconduct. Lord Craighill said (at p. 705):—“It is not necessary for me … to state an exact definition of the plea of lenocinium, but this I may safely say, that if a husband can be held to have been in any way contributory to what ensued the law will not interfere to give him a remedy.” In the case of Hunter v. Hunter, (1883) 11 R. 359, a man who had married a prostitute told her after the marriage to return to her former mode of life. Some months after the marriage he went to America, but he gave directions to his man of business to make out a deed of separation. Under this deed suitable aliment was provided for the wife, and was duly paid to her. Two years after the husband went away, the wife entered again on a course of continuous prostitution. In an action of divorce at his instance, it was held that the expressions had been used in rixa, that they were inconsistent with the provisions he had made for his wife under the deed of separation, and that his wife's relapse to her former mode of life was not really connected with the expressions he had used; and the plea of lenocinium was accordingly repelled. Speaking of the expressions which had been used in that case Lord President Inglis said (at p. 365):—“But the question still is whether they were used for the purpose of giving vent to his anger and gratifying his wish to insult his wife when quarrelling with her, or whether he intended her to act on the advice so given, and whether his wife knew that he intended her so to act on it. For to make out the plea of lenocinium it must be established in the first place that the expressions were used by the husband with that intent, in the second place, that she understood that they were so meant, and in the third place, that she acted on them, and that they were the immediate cause of the subsequent adultery.”

I hold it to be established in the present case that the letter was written by the pursuer with the intention that his wife should act upon it, and that she understood this. The difficult question is whether she acted on the letter, and whether it was the cause of her subsequent adultery. In dealing with this question I do not think it is of any real materiality that the defender in her evidence denies that she acted on the pursuer's suggestion or was influenced by it in any way. It does not seem to me possible for her to have denied committing adultery and at the same time to have admitted that she acted on her husband's request that she should commit adultery. I disbelieve her evidence that she did not commit adultery, and I also disbelieve her evidence that she was not influenced by the letter. The real question seems to me to be, What is the true inference from the proved facts of the case? I have held it proved that the defender committed adultery on 24th April 1926, and the letter written by her husband inviting her to commit adultery was written in January of the same year. I think the natural inference is that the writing of the letter must have contributed to some extent to her subsequent act of misconduct, and I think it is for the pursuer to prove that this natural inference is not the proper inference in the circumstances of this case. The suggestion in the letter was, of course, that the defender should commit adultery for the purpose of enabling the pursuer to sue for divorce, and the question at once arises Why, if the defender committed adultery in accordance with the pursuer's suggestion and in order to obtain divorce, is she now defending this action? This, however, may be due to the fact that, after having committed adultery, she changed her mind, and she may have done so because she came to realise that, if she was divorced, she would lose the liberal aliment which she is receiving at the present time. On the other hand, there are a number of incidents mentioned in the evidence which seem to me to indicate that, at or about the time the adultery was committed, she acted with some recklessness, apparently indifferent as to whether she was discovered or not. The fact that she told M'Laughlin on the Saturday that she was supposed to be going to Paisley, and told him on the Sunday that she had had a good time the night before with “Davie,” does not indicate that she was anxious to make a secret of her conduct. The disclosures made by White to M'Laughlin and by Wardrop to Mr Kerr and Mrs Richardson seem to me to point in the same direction. I think in a case of this kind the Court must assume that, if misconduct on the part of a wife follows at a short period of time after a direct invitation by the husband to her to commit misconduct, the invitation has been a contributory cause. It is the duty of a husband to protect and guard the virtue of his wife, and, if he writes a letter to her which suggests that it is a quite proper thing for her to commit adultery in order to obtain divorce, it is impossible to say that that may not have influenced her in her attitude towards misconduct. Mr Taylor for the defender argued that the plea of volenti non fit injuria really applied to a case of this kind. That view, however, is in direct conflict with the opinion of Lord President Inglis in the case of Wemyss, and I am not prepared to accept it. The pursuer in this case was, however, not merely willing that his wife should commit adultery, but he incited and instigated her to commit it, and by so doing I think he has disentitled himself to the remedy of divorce. The following dictum of Lord Ardmillan in the case of Donald v. Donald, (1863) 1 Macph. 741, at p. 748, appears to me to be applicable to the circumstances of this case:—“I think there may be lenocinium without actual exposure of the wife to prostitution for hire, and there may be lenocinium where the husband's conduct is not proved to be directly connected with the particular adultery charged. But there must be conduct on the part of the husband which makes him the pander to his own dishonour—the wilful tempter and inciter of his wife to the commission of adultery.” The pursuer's counsel founded on the case of Thomson v. Thomson, 1908 S C 179, and argued that here there was nothing on the husband's part of an active character. I cannot agree. I think the advice which the pursuer gave the defender was a step of an active character, and that it contributed to her misconduct. I am accordingly of opinion that the pursuer connived at his wife's adultery and is not entitled to the remedy of divorce.

I shall pronounce an interlocutor finding facts, circumstances, and qualifications relevant to infer that the defender has been guilty of adultery, but also finding that the pursuer has connived at his wife's adultery, and assoilzieing the defender.

The pursuer reclaimed, and the case was heard before the Second Division on 23rd and 24th February 1928. Counsel for the defender intimated that she did not propose to take advantage of the reclaiming note to challenge the Lord Ordinary's finding upon the question of adultery.

Argued for the reclaimer (pursuer);—The terms of the pursuer's letter did not unequivocally import an invitation to his wife to commit adultery. It could be read merely as an invitation to the defender to divorce him on account of his adultery. Assuming, however, that the letter was open to the construction which the Lord Ordinary had placed upon it, the circumstances here were not such as amounted to lenocinium. To make out a case of lenocinium it was necessary to establish (1) that the letter had been written by the husband with the intention of inducing his wife to commit adultery; (2) that it was so understood by her; and (3) that she had acted on it, and that it was the immediate cause of her adultery. The third of these requisites was here absent, for the immediate cause of the defender's adultery was not the letter but her spontaneous infatuation for the co-defender. The case was distinguishable from Thomson v. Thomson, for the pursuer had no cause to suspect his wife, and he had done nothing of an active character to secure her downfall. He was in no way responsible for the meetings between the defender and the co-defender; so far as she could, the defender had endeavoured to conceal them from him. The Lord Ordinary had erred in rejecting the defender's testimony with regard to the effect upon her of the letter, while accepting her statements with regard to other invitations. In view of the fact that lenocinium had not been pleaded, and of her express denial that she had been influenced by the letter, this was not a case in which the Court should readily entertain such a plea, although it had been proponed by the Lord Ordinary ex proprio motu.

Argued for the respondent (defender);—Lenocinium did not require to be pleaded by a defender. It was pars judicis to consider the question if the evidence appeared to raise it, and here the Lord Ordinary was justified in taking the course which he did. This was not the case of a husband who, in the knowledge of his wife's inclination, had given her opportunity to commit adultery, but one where an invitation had been deliberately given without such knowledge. In the circumstances, a heavy onus rested on the pursuer to rebut the presumption that his wife's adultery was the consequence of his invitation, and he had entirely failed to discharge the onus. To establish lenocinium, it was not necessary, as the dicta of Lord President Inglis in Hunter v. Hunter appeared to indicate, that the invitation should be the immediate cause of the alleged adultery. These dicta fell to be read in the light of the circumstances with which his Lordship was dealing in Hunter, and could not be taken as intended to supply a definition of universal application. All that was required was that there should be something on the husband's part of an active character. He was obnoxious to the charge, if he was accessory to or participant in his wife's adultery, or if in any way he contributed to it. The present case was a fortiori of all the decided cases, for here the husband, so far from merely acquiescing in his wife's conduct, had actively incited her to be unfaithful by his letter which, on his own admission, contained an express invitation to her to commit adultery. There was no ground for the suggestion that the defender could not here insist in the plea of lenocinium. As she had denied adultery, the plea was not open to her. The Lord Ordinary, however, had raised the question ex proprio motu, and she was entitled to support his judgment on this point.

At advising on 14th March 1928,—

Lord Justice-Clerk (Alness).—This is an action of divorce by a husband against his wife, based on the ground of adultery. The Lord Ordinary, after hearing evidence, held that adultery was proved, but refused decree of divorce to the pursuer on the ground that he had connived at his wife's adultery. In other words, the Lord Ordinary sustained a plea of lenocinium. The pursuer has reclaimed against that judgment. The defender, while admitting that the Lord Ordinary was entitled on the evidence to hold that adultery was proved, maintained that the Lord Ordinary was right in holding that the plea of lenocinium is made out, and that therefore the pursuer is barred from obtaining decree of divorce on the ground of adultery. In order to determine the issue between the parties, two inquiries fall to be made—(1) what the term lenocinium connotes, and (2) whether the facts proved in this case amount in law to lenocinium.

(1) As regards the first of these questions, it seems to me that any attempt to define lenocinium with exactitude is foredoomed to failure. No judge in the past has made the attempt, and I certainly do not propose to do so. A moment's reflection is sufficient to show that the plea may arise in such a variety of circumstances as to render the task of complete definition impossible. While that is so, the cases yield many indications of what will be held in law to amount to lenocinium and of what will not. One of the most valuable expositions of the matter will be found in the case of Wemyss v. Wemyss . There (at p. 662) Lord Justice-Clerk Inglis says: “It is not necessary to define lenocinium precisely. It is safer to keep to general description; but I may say that I have not the least doubt that, when a husband is accessory to the crime of adultery by his wife, or is participant in the crime, or is the direct occasion of her lapse from virtue, he will be obnoxious to the plea of lenocinium.” The view thus expressed was adopted by Lord Ormidale in the case of Munro v. Munro . Again, in the case of Marshall v. Marshall, Lord Craighill says (P. 705): “That introduces the next question, are the circumstances such as to disentitle the husband from obtaining redress? It is not necessary for me, in answering this, to state an exact definition of the plea of lenocinium; but this I may safely say, that, if a husband can be held to have been in any way contributory to what ensued, the law will not interfere to give him a remedy.” Once more, in the case of Hunter v. Hunter, Lord President Inglis said (at p. 365): “To make out the plea of lenocinium it must be established in the first place that the expressions were used by the husband with that intent, in the second place, that she understood that they were so meant, and in the third place, that she acted on them, and that they were the immediate cause of the subsequent adultery.”

(2) Such being the law, the further question arises whether the facts proved in this case support the plea of lenocinium. Now, these facts, as it so happens, are of an exceptionally clear and convincing character. The pursuer admittedly wrote to the defender a letter in these terms: “What about doing something so as we can be clear of one another. I'm fed up with this life. I no longer love you so it's up to you to do something.” I have said that the facts in this case are of an exceptionally clear and convincing character. By that I mean that, while in many cases lenocinium has to be spelt out of a course of perhaps ambiguous conduct on the part of the husband, in this case there is a writing under his own hand which absolves the Court from any such inquiry. The pursuer's counsel admitted that the letter which I have quoted was intended by the pursuer to induce the defender to commit adultery, and, further, that she so understood its meaning. The pursuer's counsel took his stand on the proposition that it is not clear in this case that the defender acted on the advice which she received from the pursuer, and he maintained that that advice was not therefore the immediate cause of the subsequent adultery. In other words, the pursuer's counsel contended that the third requisite referred to by the Lord President in the case of Hunter, which he represented as a condition precedent to the establishment of the plea in all cases, was lacking in this case.

Now, in the first place, I am not satisfied that that requisite must in all circumstances be fulfilled, or that the Lord President intended so to determine. Such a view would be inconsistent with what the same learned judge, as Lord Justice-Clerk, said in Wemyss. Mr Taylor, for the defender, instanced a case in which a husband—of whose machinations his wife was ignorant—plotted her downfall, and in which she fell. For myself, I do not doubt that, in such a case, the plea of lenocinium would be fatal to the husband's success in an action of divorce against his wife.

However that may be, I am satisfied that, in this case, the plea is good. It must be remembered that the letter from the pursuer to the defender was written in January 1926, and that adultery was committed by the defender on 24th April 1926. In my judgment, when a husband invites his wife to commit adultery, and when she does so within a short time after the invitation, a strong presumption of fact arises that she did so in consequence of the invitation, and, unless that presumption be rebutted, the Court will hold that the invitation and the subsequent adultery are related to one another as cause and effect. Now, in this case the only attempt to rebut the presumption to which I have referred, and which, I think, in the proved circumstances of the case, applies, is the denial of the defender that she acted on the pursuer's invitation to commit adultery. In the first place, it must be remembered that, as the defender denied adultery, she could not possibly have made any other statement than she did. But, in the second place, the Lord Ordinary, who saw and heard the defender in the witness-box, refused to accept her denial as true; and I do not think that it is open to us to review that conclusion, unless on strong grounds, which have not in this case even been suggested. Accordingly, the presumption of fact to which I have referred is not rebutted.

I agree with the Lord Ordinary that, having regard to the date of the pursuer's letter and the date of the defender's adultery, the natural inference to be drawn is that the letter contributed in some measure to the adultery, and that there is not sufficient evidence to establish that this—the natural inference—is not, in the circumstances, the proper inference.

Mr Blades, for the pursuer, maintained that the true cause of the defender's fall was not the letter which she received from the pursuer, but her infatuation for her paramour. In my opinion, the argument is based on a fallacy. The two causes are not mutually exclusive; they may have concurred. It is not to he supposed that a woman invited by her husband to commit adultery will proceed to do so with the first man whom she meets. But, if she meets a man who evokes her affection, the letter may well prove to be the incentive which induces her to yield to his embraces.

In the circumstances, even if the Lord President's third requisite be essential in all cases to the establishment of the plea of lenocinium—which I take leave to doubt—I think that that requisite has, in this case, been satisfied, and that the Lord Ordinary was right in refusing to the pursuer the decree of divorce for which he asks. I accordingly move your Lordships to affirm the interlocutor reclaimed against.

Lord Ormidale.—This is an action of divorce at the instance of Hugh Gallacher against his wife on the ground of her adultery with David White. The Lord Ordinary appointed the dependence of the action to be intimated to White, and allowed him, if he disputed the truth of the charges against him, to lodge a minute with answers to these charges; but White did not enter appearance. On record, the defender's sole plea was that, not having been guilty of adultery, she was entitled to be assoilzied. Although she made averments relevant to infer connivance, she did not state a plea of lenocinium. It is pars judicis, however, to consider this question if the facts appear to raise it; and at an early stage of the proceedings the Lord Ordinary indicated to the pursuer's counsel that the question would have to be dealt with. After evidence had been led, the Lord Ordinary held that the defender's guilt of adultery had been established, but further found that the pursuer had connived at his wife's adultery, and was therefore barred from obtaining decree of divorce.

The pursuer reclaimed against this interlocutor. The defender acquiesced in the Lord Ordinary's finding that she had committed adultery, but maintained that the pursuer was not entitled to decree of divorce in respect that lenocinium had been established. It has always been recognised that what amounts to proof of lenocinium is, in each case, a question of circumstances. In regard to the legal aspect of lenocinium, Lord President Dunedin, in Thomson v. Thomson, says that two things are clear. “The one is that no judge will do well by trying to frame a definition of what amounts to lenocinium, because each case really depends on its own facts, and it would be impossible to frame a definition which comprehended all cases. The other is, that there must be something on the husband's part of an active character. ‘Cooperari et positive concurrere,’ says Sanchez, and I think that is an accurate description of our law.” Applying that test to the present case, the facts proven, in my opinion, amply warrant the finding of the Lord Ordinary.

The parties were married in 1920, when each was about seventeen years of age. After the birth of their first child there were frequent quarrels and much unhappiness. They finally separated in August 1923—the wife thereafter receiving aliment for herself and her surviving child at the rate of £2, 10s. a week. While thus separated from her husband, the defender's life was chaste and virtuous until 1926. Soon after the commencement of that year her husband sent her a letter in the following terms: “Annie, enclosed you will find alimont. what about doing something so as we can be clear of one another. I'm fed up with this life. I no longer love you so it's up to you to do something. HUGHIE.”

The meaning of this document is beyond doubt. It is a contemptible and callous invitation by the pursuer to his wife to commit adultery so that he should be able to divorce her. In the witness-box he made a dishonest and most ridiculous attempt to explain it away, but in the end was forced to admit that it could mean, and was intended to mean, nothing else. On 24th April thereafter the defender committed adultery with David White.

There are not many examples in the books of cases of this class, and in only one of them—Marshall v. Marshall —has the plea of lenocinium been sustained. It has always been recognised that to bring home guilt of so gross an offence the evidence must be cogent and convincing. The initial onus of proving connivance is on the defender; but on the production and proof of the letter already quoted it was clearly for the pursuer to show that it had not the effect which its terms very clearly intended that it should have.

Mr Blades founded his contention that the defender had failed to establish lenocinium to a large extent on a passage in Lord President Inglis's opinion in Hunter v. Hunter, when, referring to certain expressions addressed by the pursuer, who had married a prostitute, to his wife to the effect that she should return to her former mode of life, he says that “to make out the plea of lenocinium it must be established in the first place that the expressions were used by the husband with that intent, in the second place, that she understood that they were so meant, and in the third place, that she acted on them, and that they were the immediate cause of the subsequent adultery”; and his Lordship then goes on to show that on the evidence in that case each of these propositions was very clearly negatived. While not seriously disputing that the first and second of them had been proved in the present case, Mr Blades maintained that the evidence was not sufficient to support the other. This general statement of the Lord President must, however, be read along with what the same judge said in Wemyss v. Wemyss in the passage quoted by the Lord Ordinary. In neither case, I am satisfied, was the general description given of lenocinium meant to be an exact and exhaustive definition stating particulars which must in all cases be proved. The statements were obviously made with reference to the particular facts of each case.

Further, while there is no doubt that the defender, both in cross-examination and in answer to the Lord Ordinary, denies that she acted on her husband's invitation, it is difficult to see how she could well have done anything else, as she was stoutly maintaining that she had not committed adultery at all. I am not surprised that the Lord Ordinary states (1) that he did not believe her when she denied adultery, and (2) that he did not believe her when she denied acting on her husband's invitation.

It was further maintained that, according to the evidence, she made every endeavour to conceal her guilty association with White, and that she would have acted much more openly had she been moved to do what she did by her husband's letter; but I do not think that the evidence yields this result. I agree that her conduct was not very barefaced or reckless, but, on the other hand, she did not evince any great anxiety to keep secret her visit to Lanark. Obviously, it was well understood by several people what she was about. And, again, the evidence does not, in my opinion, warrant the inference that her lapse from virtue was due to sudden impulse or an overwhelming infatuation for White. The defender, who had, as I have said, for several years after separating from her husband, led a chaste and virtuous life, was not likely to prostitute herself to the first comer. Passion no doubt was a factor before she finally fell; but I have no doubt that, but for the letter and invitation of her husband, she would have resisted and not responded to the advances of David White.

I see no reason for not accepting as true, as the Lord Ordinary did, the defender's evidence that the letter I have quoted was not the only letter that she received from her husband inciting her to adultery, and that similar invitations were made to her verbally. The corrupt intention of the husband, which in cases of this class is as a rule the most difficult fact to prove, is here amply established; and, when adultery follows close upon his instigation, the inference that his instigation contributed to his wife's adultery is almost insuperable. In the present case there is nothing, in my opinion, to rebut it. I agree, therefore, that the reclaiming note should be refused.

Lord Hunter.—The Lord Ordinary, although finding that the defender committed adultery, has refused the pursuer the remedy of divorce on the ground that he has been guilty of the offence of lenocinium. The defender, who denied the alleged adultery, did not formally take the plea which the Lord Ordinary has sustained. I do not doubt that it was competent for the Lord Ordinary, in the absence of a plea, to take the course which he did. The facts upon which the plea is based are set out on record, and it is against public policy to allow a spouse to obtain divorce on the ground of adultery, if he or she has encouraged and incited the other spouse to commit the matrimonial offence of which complaint is made.

In sustaining the plea, the Lord Ordinary has proceeded mainly on the terms of a letter written by the pursuer to the defender two or three months prior to the acts of adultery founded on. That letter contains these expressions: “What about doing something so as we can be clear of one another. I'm fed up with this life. I no longer love you so it's up to you to do something.” After making a manifestly untruthful explanation of the circumstances in which this letter was written, the pursuer was constrained to admit that the letter amounted to an invitation to the defender to commit adultery in order that he might be able to obtain a decree of divorce. I have no doubt it was so intended, and that it was so understood by the defender. The Lord Ordinary has also accepted the defender's evidence—and I have no doubt rightly—that similar invitations had been made to her verbally and in writing, and also that the pursuer had confessed to her that he had committed misconduct, and invited her to take proceedings against him.

There are not many decided cases in Scotland in which the plea of lenocinium has been considered, and it has very rarely been sustained. In Wemyss v. Wemyss Lord Justice-Clerk Inglis said (at p. 662): “It is not necessary to define lenocinium precisely. It is safer to keep to general description; but I may say that I have not the least doubt that, when a husband is accessory to the crime of adultery by his wife, or is participant in the crime, or is the direct occasion of her lapse from virtue, he will be obnoxious to the plea of lenocinium.” In the later case of Hunter v. Hunter the same learned judge, then Lord President of the Court, said (at p. 365): “To make out the plea of lenocinium it must be established in the first place that the expressions were used by the husband with that intent, in the second place, that she understood that they were so meant, and in the third place, that she acted on them, and that they were the immediate cause of the subsequent adultery.”

In the present case the pursuer has founded upon the last-quoted passage in Lord President Inglis's opinion as containing a definite enumeration of three different elements which must all be clearly established before the plea can be sustained. He maintains that the third element referred to is proved to be absent in the present case. When asked whether she paid any attention to the suggestions made by the pursuer, the defender replied: “I did not pay any attention to these invitations.They did not affect my mind in any way.” It is difficult to see how, in face of her strenuously maintaining her innocence, she could have given any other answer. I think the Lord Ordinary, in the view which he took of the whole evidence adduced in the case, was quite entitled to say, as he did: “I disbelieve her evidence that she did not commit adultery, and I also disbelieve her evidence that she was not influenced by the letter.”

In my opinion it is not necessary in order to establish the plea of lenocinium that it should be satisfactorily established that the only cause of the defender's guilt was the husband's incitement of the wife to commit the offence. It may be that the defender formed a sudden and passionate attachment for the man with whom she committed adultery, but I do not think that such a circumstance affords an effective answer to the plea of lenocinium where at or about the time of the wife's fall there is clear and satisfactory evidence of the husband's encouragement of the wife to do an act which will enable him to procure a divorce. The opinion of Lord President Inglis in Hunter's case must be read in the light of the circumstances with which he was dealing. In that case the wife, who had been a prostitute, was living apart from her husband, who had gone to America but was making a suitable allowance for her in the way of aliment. In her husband's absence she entered again upon a continuous course of prostitution. What was founded upon as establishing lenocinium was that while they were living together, the husband had on several occasions, in the presence of witnesses, cast up to her her former mode of life, and told her to return to it. It was held that, as the expressions were used in rixa, and were not intended, or understood to be intended, to be acted on, there was no ground for the plea. The circumstances were totally different from the present. I do not think that what Lord President Inglis said in Hunter was intended to qualify or restrict what he had said in Wemyss. It is obvious that, according to the description of the offence given by him in that case, a husband might be obnoxious to the plea although the wife might be ignorant of his action, e.g., if he procured someone to make an attempt upon his wife's virtue and afforded him facilities for making the attempt successful.

In the case of Thomson v. Thomson Lord President Dunedin, in dealing with a plea of lenocinium, after quoting with approval what was said by Lord fraser in his treatise on the Law of Husband and Wife (vol. ii. p. 1186), said: “Now, it seems to me that two things are clear. The one is that no judge will do well by trying to frame a definition of what amounts to lenocinium, because each case really depends on its own facts, and it would be impossible to frame a definition which comprehended all cases.

The other is, that there must be something on the husband's part of an active character. ‘Cooperari et positive concurrere,’ says Sanchez, and I think that is an accurate description of our law.” In the present case I think there is evidence against the husband of active encouragement of his wife to commit adultery, and that therefore the reclaiming note ought to be refused.

Lord Anderson.—The defence of lenocinium or connivance in a consistorial cause is seldom proponed, and still more rarely sustained. Prior to the present case there is only one reported decision—Marshall—in which the Court has sustained a plea of connivance. It is somewhat remarkable, however, that since we took this case to avizandum the defence of lenocinium has again been sustained by a Lord Ordinary—M'Mahon v. M'Mahon, 29th February 1928, Lord Constable. There are two considerations which account for the difficulty in substantiating this plea. One is that the Court will not readily excuse so grave a breach of the marriage vow as adultery. The other is that, as a charge of lenocinium is peculiarly degrading and dishonouring, there is a presumption against it which has to be conclusively rebutted. In the ordinary case, moreover, the question of whether or not there has been connivance is matter of inference from a course of conduct. It is seldom that the intention of the inciting spouse is so plainly disclosed as it is in the present case.

The defence may be pleaded by the defending spouse; may be maintained by the defending spouse without averment or plea; or may be proponed, ex proprio motu, by the Lord Ordinary. The Lord Ordinary is empowered, by the provisions of section 8 of the Conjugal Rights (Scotland) Act, 1861, to direct that any action of nullity of marriage or of divorce shall be laid before the Lord Advocate, in order that he may determine whether he should enter appearance therein—see Ralston, (1881) 8 R. 371, and Paul, (1896) 4 S. L. T. 171.

In the case where a defender pleads that adultery has not been committed and also connivance, it is obvious that the latter plea is inept. The plea of connivance is really an excuse for the commission of adultery, and is plainly inappropriate to a case in which the leading assumption is that there is nothing to be excused. Despite this manifest incongruity, it is well settled that both of these defences may be pleaded—Fraser, Husband and Wife, vol. ii. p. 1193; Marshall. In the present case, while the defender has averments raising the defence of connivance, she has no plea in law based on those averments. The defence of connivance was really suggested by the Lord Ordinary, who apparently invited the defender's counsel to maintain it. On the reclaiming note the defence of connivance was alone maintained by the defender, as she acquiesced in the finding of the Lord Ordinary that adultery had been proved.

The evidence of connivance relied on by the defender consisted of (a) the terms of a letter from the pursuer to her in which he says: “what about doing something so as we can be clear of one another … it is up to you to do something”; and (b) her oral testimony that she received other letters of the same purport, and that the pursuer made verbal suggestions to the same effect. Mr Blades admitted that the meaning of the sentence I have quoted is that it was an invitation or instigation by the pursuer to his wife to commit adultery so that he might obtain a decree of divorce. Mr Blades also accepted the tests of connivance suggested by Lord President Inglis in the case of Hunter. In that case the Lord President, referring to certain verbal expressions of the husband, laid it down that, in order to make out the plea of lenocinium, it must be established (1) that the expressions had been used by the husband with the intention that the wife should act on them; (2) that she understood that they were so meant; and (3) that she acted on them, and that they were the “immediate cause” of the adultery. It was conceded by Mr Blades that the first two of these tests were satisfied in the present case, but he maintained that the third was not. It was argued by Mr Blades that the instigation of the husband must be the sole cause of the wife's adultery. This is not the necessary meaning of the third test suggested by the Lord President in Hunter, and is not the law. In the earlier case of Wemyss the same judge, when Lord Justice-Clerk, laid it down (at p. 662) that there is lenocinium when “a husband is accessory to the crime of adultery by his wife, or is participant in the crime.” These terms assume that another cause may be operating. Again, in the case of Marshall,Lord Craighill observed (at p. 705) “that, if a husband can be held to have been in any way contributory to what ensued, the law would not interfere to give him a remedy.” It is enough, therefore, if the instigation of the husband has played a part in the downfall of the wife. Indeed, it is inconceivable that the temptation of the husband should be the sole cause of a wife's adultery. No woman invited by her husband to commit adultery would go into the street and offer herself to the first man she met. Affection for her lover must always be a cause, and it may be the main cause, of her lapse from virtue. In the present case I have no doubt that the defender's “infatuation for White” (as Mr Blades phrased it) had much to do with her infidelity; but, if the instigation of her husband was also causally operative, the defence of connivance is made out. Now, Mr Blades attempted to make out that the defender's adultery was entirely due to her affection for White. He failed to satisfy me that, on the evidence, this was established. I am of opinion that, where a woman is invited by her husband in plain terms to commit adultery, and shortly thereafter does so, it is a reasonable inference that she was to some extent influenced by the husband's instigation. It is for the husband to make out that his instigation had no effect, causally, on her action. In the present case I am clearly of opinion that this onus has not been discharged by the husband.

The defence of connivance must therefore be sustained, and the defender assoilzied.