Scottish Court of Session Decisions

At advising on 16th February 1940,—

LORD PRESIDENT (Normand).—This case was sent to the Whole Court for a decision on the question whether it is necessary that the pursuer in an action of divorce for desertion should aver willingness to adhere down to the date of raising the action, under pain of having the action dismissed as irrelevant. The averment that the defender had by a letter addressed to the pursuer admitted adultery was not founded on in the argument at any stage. On the question before the Court I am in complete agreement with the opinion which will be delivered by Lord Fleming.

I agree also with the observations of the Lord Justice-Clerk on the too frequent insincerity of the professions that the pursuer was down to the date of raising the action willing to adhere to the deserting spouse. In the common case, where the action is raised because the pursuer wishes to remarry, such professions are the merest fiction. If, on a sound construction of the Act, the period during which the aggrieved party must prove willingness to adhere is now fixed at three years from the beginning of desertion, our law will be brought into closer correspondence with the truth and with the realities of human nature. Specific evidence of the parties' attitude towards each other within the quadriennium has always been exacted. But after that evidence has been taken, the pursuer's affirmation that he has "all along" been willing to adhere has often been accepted as sufficient proof of a willingness enduring to the date of the summons. We have perhaps ceased to be disagreeably aware of the convenient indefiniteness of the usual formula. Yet there cannot be many who would lament if this almost empty ritual were now to disappear from our practice, and if attention were to be confined to the proof that the alleged desertion for the three years was truly desertion and not separation by mutual consent.

LORD JUSTICE-CLERK (Aitchison) (read by the Lord President).—If the Divorce (Scotland) Act, 1938, had introduced desertion as a ground of divorce for the first time into the law of Scotland, it could hardly, I think, have been maintained that this libel was not relevant. Apart from the bearing, if any, of the judicial interpretation of the Act of 1573, cap. 55, which is now repealed, upon the present Act, upon no known principle of the interpretation of statutes could section 1 (1) (a) have been construed as if it contained this proviso:—

"Provided that, notwithstanding that the defender has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years, it shall not be competent for the Court to grant decree of divorce unless the pursuer proves that down to the date of raising the action he was willing to adhere to the defender."

So to read the statute is, in my opinion, to take a liberty with the language which the Legislature has employed which far exceeds the limits of legitimate construction. It is to make the law, and not to interpret it.

The argument, as I understand it, which adjects to section 1 (1) (a) of the Act of 1938 a condition which the Legislature has not expressed is derived from a practice which is said to have prevailed in the judicial administration of the Act of 1573 of requiring a pursuer to depone to a willingness to adhere down to the date when proceedings were commenced. But the Act of 1573, and section 11 of the Conjugal Rights (Scotland) Amendment Act, 1861, are no longer on the statute book. They were swept away by the Legislature. It is difficult therefore to understand how an interpretation of Acts that no longer exist can be held to override what the Legislature has now in plain terms directed, unless there are indications to be found in the language of the new Act that the former practice, assuming that a uniform practice existed, is to continue as if the old law had been unrepealed. I cannot find any such indication in the Act of 1938; on the contrary, the fact that the Act did not simply substitute the period of three years for the former period of four years, but, instead, repealed the earlier Acts in their entirety, indicates an intention on the part of the Legislature to supersede the technical requirements and refinements that had grown out of the cumbrous machinery of the old law, and which had ceased to serve any useful purpose, by a new Act to be construed according to the meaning of its own language. It was not disputed, however, that willingness on the part of the pursuer to adhere during the triennium remains an essential pre-condition of desertion, without which the matrimonial offence of desertion could not exist. It was so decided in the case of Macaskill v. Macaskill, which was concerned with the triennium only, and did not profess to deal with the point now raised, viz., whether the willingness to adhere must persist beyond the triennium down to the commencement of the action.

Although the Act of 1938 must be construed according to its own terms, it is legitimate to inquire how the law stood when the new Act reached the statute book, as bearing upon what was presumably the intention of the Legislature. Amidst a great deal that was settled under the old law, there remained one matter that was unsettled and which from time to time was brought into controversy. That was whether it was essential that a pursuer should be willing to adhere down to the date when he raised his action; or, to put it in another way, was the deserted spouse bound to accept an offer by the deserting spouse to adhere after the expiry of the quadriennium and the completion of the statutory requirements? It is a remarkable fact that, although the Act of 1573 had been on the statute book for upwards of 350 years, this question had never been finally and authoritatively decided. There was a distinct cleavage of judicial opinion which remained unresolved when the Act of 1938 was passed. In 1931, in the case of Gilfillan v. Gilfillan, Lord Anderson, who had a very large experience of the Divorce Court, having sat in the Outer House for ten years, said (at p. 455) that there was "undoubtedly a conflict of judicial opinion on the subject," and he added:

"It may be that the question, if it is ever to be decided, must be decided in a contested case and by a larger Court than that sitting now."

What then becomes of the argument from the judicial interpretation of the Act of 1573? It simply disappears, unless we are to say that Lord Anderson was mistaken in thinking that judicial differences existed, which, I think, would be a very bold thing to say. The truth of the matter is that some judges took the view that on the expiry of the four years the deserted spouse had a statutory right to divorce, which could not be defeated by a subsequent offer to adhere, whereas other judges took the view that the pursuer must be willing to adhere, and express his willingness to do so, right down to the raising of the action, up to which time an offer to adhere by the spouse in desertion, if made in good faith, did not come too late.

It is unnecessary to decide which of these conflicting views was right. The important thing to observe is that there existed a sharp divergence of judicial opinion and that there was no settled rule in practice. If a decision of the question were necessary, I should for myself adopt the statement of law by Lord Watson in Mackenzie v. Mackenzie . That case raised the question as to what was "reasonable cause" for non-adherence under the Act of 1573. In the course of his opinion Lord Watson dealt with the law generally under the Act in the following passage:

"The Courts of Scotland have never attempted to enforce a decree of adherence by means of civil process. The only remedy provided by Scotch law, where the offending spouse persists in avoiding cohabitation after decree, is to be found in the Act of 1573. Decree of divorce under that Act is, in my opinion, nothing less than a penalty for obstinate non-adherence. Accordingly the older statute requires, as the first step towards obtaining the remedy, that the deserted spouse shall raise and obtain decree in an action of adherence, the decree to be followed by a charge of horning; and as the second step, that application shall be made to the Ecclesiastical Court for the admonition, and if that be not obeyed, for the excommunication of the offender, who, if he or she failed to resume cohabitation, within the period allowed by the Act, after these preliminaries had been observed, could not resist a decree of divorce."

It is true that Lord Watson was not dealing expressly with the question whether the willingness to adhere must persist to the date of the action of divorce; none the less the passage is a clear affirmation that on the expiry of the statutory period, that is the quadriennium, and the observance of the statutory preliminaries, the delinquent spouse could not resist a decree of divorce. That view indeed had been explicitly affirmed in Murray v. M'Lauchlan . In that case the offer to adhere was made after the action of divorce had been raised, and it was held that it came too late. Lord Corehouse said (at p. 298):

"The statute gives the remedy for four years' ‘malicious and obstinate defection.’ That remedy was meant to be effectual. The statute provides that, after the lapse of four years, and the adoption of certain prescribed procedure, the party deserted shall have a right to obtain a divorce. If such party had not a jus quœsitumsuch as could not be defeated at the option of the deserter by a subsequent tender of adherence, the remedy of the statute would be quite inoperative. A deserter might just repeat such a tender as often as a new course of desertion was run, and the proceedings against him had reached their present stage, so that the statute would be abortive. I do not think purgation applies in the present case. During the currency of the days of charge in the process of adherence, the defender might, by giving obedience to it, have prevented further procedure for divorcing him. But after that period, and after he has been denounced, I think his tender of adherence is too late to be of any avail."

In considering what the Legislature must be presumed to have known when it passed the Act of 1938, two things appear to me to be clear; (1) that there was no inflexible rule of law or practice that required willingness to adhere to the date of the action, and (2) that, in so far as any such supposed rule had been insisted on, it had given rise to a great deal of misgiving. An aggrieved spouse who had a proper sense of the solemnity of an oath, and who was not prepared to perjure himself in the witness-box, might have to forgo his remedy, whereas an aggrieved spouse on whom the obligation of an oath sat lightly entered the witness-box, granted himself an indulgence not to speak the whole truth, and obtained his decree. That was a profoundly unsatisfactory state of the law. It was unsatisfactory, because willingness to adhere beyond the quadriennium was not uniformly insisted on, and, also, because, when it was insisted on, it involved the fiction that, down to the precise point of time when the writ was served, the pursuer did not desire the remedy of divorce. That was nothing but a fiction of the law, and, in the vast majority of cases, it was at variance with the true state of the fact. It originated perhaps out of the old action for adherence, but the Act of 1573 did not require willingness to adhere between the date of the decree of adherence and the completion of all the formalities and the beginning of the action of divorce. The Act of 1573 enacted in terms which appear to me to be unambiguous that malicious non-adherence persisted in for four years was, on the completion of the preliminaries, "ane sufficient cause of divorce." I think that judges were not entitled at their own hand to add to the Act of 1573 and its multiple requirements a further condition which the Act had not expressed, and that, when they did so, they caused embarrassment to many honest pursuers who could not sincerely profess a state of mind which they did not feel. There can be no doubt that this led to insincerity and evasion in the witness-box. It was an incentive to perjury. It is impossible to think that this was unknown to the Legislature.

I think that importance falls to be attached to the difference in the language of the Scottish Act as compared with the English Act.It is matter of common knowledge that the English Act reached the statute book after a long and bitter controversy, and that it represented a compromise. The English Act is explicit that the desertion must be without cause for at least three years "immediately preceding the presentation of the petition." I am unable to accept the view that the omission of these words from the Scottish Act was casual or inadvertent. When the Legislature uses with reference to the same subject-matter dissimilar language in different statutes, the natural inference to draw is that in the later statute a different result was intended. That the omission of the words was not inadvertent is emphasised by the provision in the Scottish Act relating to insanity where by section 6 it is provided that it must be proved that the defender is and has been for a period of five years continuously immediately preceding the raising of the action under care and treatment as an insane person. If the Legislature had intended a similar limitation in the case of desertion, it is, to my mind, inconceivable that it should not have expressly enacted it. It may however be a possible view that the limiting words in the English Act were intended only to exclude the case where there had been a temporary resumption of cohabitation within the immediately preceding three years, in which case there would not be a cause of action, which would be equally true of the law of Scotland.

I am unable to assent to the argument that by the words "not less than" the statute by implication requires a longer period than three years, whenever the action is not brought immediately on the expiry of the triennium. "Not less than" is an ordinary expression familiar in statutes which is used to emphasise the period of time, whatever it may be, that is to give rise to a right or infer a disability. To read "not less than three years" as meaning that there must be willingness to adhere for four, five, or six years, or whatever greater number there may be between the commencement of the desertion and the date of the action, is simply to substitute another provision for the provision enacted by the Legislature as the condition upon which the deserted spouse shall be entitled to a dissolution of the marriage. If the question is put "Has this defender deserted the pursuer for not less than three years?" on the pursuer's averments the answer is "Yes," and therefore the pursuer is within the plain language of section 1 (1) (a). To read into the language of that section a qualifying condition, in the form of a suspensive or resolutive proviso, is to take a liberty of interpretation which, I think, is not permissible in the construction of the statute, unless the Court is driven to it by the plainest possible implication.

The contrary view, which commends itself to the majority of the Court, involves this consequence that in every case, irrespective altogether of circumstances, a pursuer cannot obtain a decree of divorce for desertion unless he or she is willing to adhere down to the moment when the action is raised. This involves that the willingness to adhere must persist notwithstanding that there may be circumstances which in law absolve a pursuer from the duty of adherence. Supposing, for example, that, after the three years had run out, during the whole of which period the pursuer had been willing to adhere, the spouse who had been in desertion were to bring an action of adherence, and in that action of adherence admitted that he or she, after the expiry of the three years, had committed adultery. It is plain that in such a case the spouse who had been deserted would be under no obligation to adhere, and a decree of adherence could not be granted. But if there is no legal duty to adhere, as ex hypothesi there would not be, upon what principle should the law require an expression of willingness to adhere beyond the triennium prescribed by the statute, as a condition precedent to obtaining a divorce for desertion? It is beside the point to say that an action would lie upon the ground of adultery. A judicial admission of adultery by a spouse who had deserted would be a good defence to an action of adherence brought by that spouse, but by itself it would be insufficient to prove adultery as a substantive ground of divorce in a cross action, and independent evidence of the adultery, in many cases which are easy to figure, might not be available. In such a case, therefore, the spouse who had been deserted and who was absolved by the law from any duty of adherence would be without remedy. That is an interpretation of the law to be avoided, unless the Court is compelled to adopt it by the imperative language of the Act.

The case I have just figured comes very near the facts of the present case. In the discussion of the general question it seems to have been lost sight of that the pursuer has averred that the defender informed him by letter that she had given birth to an illegitimate child. If, therefore, the pursuer had been sued in an action of adherence after the triennium had expired, the defender's letter would prima faciehave been a complete answer. Is the Court then to say to this pursuer:

"You are not bound to adhere; none the less, you shall not get a divorce unless you depone that you were willing to adhere down to the date when you raised your action"

? I cannot agree that that is the law of Scotland.

There is a further consideration. Can it be doubted that, on the expiry of three years from the beginning of the desertion, a matrimonial offence had been committed? Where, then, in the statute is there any provision that the matrimonial offence shall be wiped out if the spouse against whom it has been committed does not express a willingness to adhere beyond the triennium. I search the statute in vain for any such provision. I can understand how a right to divorce may be abandoned or discharged by subsequent conduct, as, for example, by a resumption of cohabitation, just as any other civil right can be abandoned, or discharged; but I cannot understand how a matrimonial offence, once committed, can be obliterated by an attitude of mind, apart from conduct from which a remission or condonation might be inferred. The theory must be that there can be no complete matrimonial offence prior to the raising of the action, but, if this was the intention of the Legislature, I find it incredible that the words "immediately preceding the raising of the action" should have been omitted from the Act. If the view of the majority is right, a delinquent spouse, who has persisted in desertion for three years, can require the innocent spouse to resume cohabitation under pain of discharging his right to divorce if he does, and of barring his right to divorce if he does not, and in the latter event of himself being held to be in desertion. I cannot conceive that a result so grotesque and repugnant to justice was ever intended by the Legislature.

The question is purely one of interpretation of the statute, and considerations of policy are alien to the question we have to decide. But I desire to say expressly that I cannot for a moment assent to the suggestion that the construction that is taken by the minority of the Court is calculated to countenance divorce of consent as a consequence of their reading of the Act. A construction that avoids an insistence upon something which in the great majority of cases cannot honestly be deponed to, so far from encouraging collusive divorce, is calculated to produce exactly the opposite effect. It is an inevitable, and often a cruel, necessity that a deserted spouse should be willing to adhere, irrespective of circumstances, during the triennium, if he is to obtain a divorce for desertion, for only thus can divorce of consent be avoided; but that is no reason why this inevitable necessity should be pressed beyond the period prescribed by the Legislature as affording a sufficient cause of action, unless the Legislature has in unmistakeable language so directed it. If the Court insists, as it must, upon willingness to adhere during the triennium, then there is no consent, but a desertion begun and persisted in during that period against the will of the deserted spouse. But if the Court is to insist on willingness to adhere to the date of the action, why not to the date of the decree? Logically, there is no halting place; indeed, in strict logic, the Court could not grant decree of divorce at all, because it can only dissolve the marriage on the footing that the pursuer no longer consents to the marriage relationship continuing. If, therefore, consent by the pursuer to the termination of the relationship must emerge before the Court can exercise its function, I can see no legal nor moral principle to be safeguarded by requiring the pursuer to pretend that he has experienced an anxiety to adhere down to the moment when he commenced his proceedings. However, it is enough to say that the Act has not enjoined, as I read it, any such condition.

Upon the whole matter, I am for holding the libel relevant, first, upon the general ground that the statute does not require willingness to adhere beyond the triennium, and, second, upon the special ground that in this case the pursuer was willing to adhere during the triennium, and, if he proves his averment, was absolved by the written confession of the defender from any further duty of adherence.

LORD FLEMING .—The pursuer in this case sues the defender, his wife, for divorce. The action is laid solely upon the provisions of the Divorce (Scotland) Act, 1938, the pursuer's plea in law being:

"The defender having wilfully and without reasonable cause deserted the pursuer, and having persisted in such desertion for more than three years, the pursuer is entitled to decree in terms of the Divorce (Scotland) Act, 1938, section 1 (1) (a)."

As the pursuer was unable to ascertain the defender's whereabouts, the action had to be served edictally, and the defender has not appeared to defend it. The Lord Ordinary has held the pursuer's averments to be irrelevant, and has dismissed the action. It is unnecessary to narrate these averments, as I adopt in its entirety the Lord Ordinary's summary of them.

The point to be decided arises from the fact that, while the pursuer avers that he was willing to adhere to his wife for three years after the date of her desertion and did in fact during that period request her to adhere to him, he has not made, and is not prepared to make, an averment that he was willing to adhere during the period between the expiry of the three years of desertion and the raising of the action. The question so raised is one of great general importance.

According to the generally accepted view the law of divorce for desertion is entirely statutory and originated in the statute of the Scots Parliament of 1573, cap. 55, which was subsequently amended by the Conjugal Rights (Scotland) Amendment Act, 1861, section 11. In his judgment in the Whole Court case of Watson v. Watson (a judgment which was referred to by Lord President Dunedin in Hutchison v. Hutchison as "the last word" on the subject to which he had nothing to add), Lord President Inglis (at p. 739) explained the origin of the Act of 1573 as follows:—

"It is almost superfluous to notice that the law thus announced and declared was an entire novelty, claiming no doubt the authority of a dogma of thirteen years' standing, but having no foundation in the canon law, or in any common law of Scotland before the Reformation. There is not a trace of practice of such divorce within the thirteen years, except in the fact that in the case of the Earl of Argyll, then Chancellor of Scotland, all the preliminary proceedings required by the statute had been taken before the statute was actually passed. It is therefore, I think, safe to conclude that there is no authority for an action of divorce for desertion except the statute of 1573 "

—vide also Lord Watson in Mackenzie v. Mackenzie . It is, however, of fundamental importance to keep in view that the statute of 1573 and also section 11 of the Conjugal Rights (Scotland) Amendment Act, 1861, have been repealed by the Act of 1938, and the only statutory provision now in force prescribing the conditions under which in Scotland decree for divorce may competently be pronounced is the Act of 1938. That Act does not alter in any respect the law of divorce for adultery, but it contains a number of other grounds upon which divorce may now be granted. The provision as regards divorce for desertion is as follows:—

"1 (1) … it shall be competent for the Court to grant decree of divorce on any of the following grounds, that is to say that the defender—(a) has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years."

I may here observe parenthetically that the phrase "it shall be competent for the Court to grant decree" seems a curious expression, but it is unnecessary to consider its significance, as the Lord Ordinary's decision is that this case falls outside the statute altogether.

The statutory provision may conveniently be considered under two heads, namely, (a) What is meant by the expression "has wilfully and without reasonable cause deserted," and (b) What is meant by "persisted in such desertion for a period of not less than three years"? As regards the first question—and for the moment confining my attention entirely to the statutory provision—I entertain no doubt that there cannot be desertion where the spouses are living apart by agreement, and that the spouse seeking divorce on the ground of desertion must aver and prove that during the statutory period he or she was willing to adhere, and that the separation was consequently due to the defender's refusal to adhere. The Second Division of the Court in Macaskill v. Macaskill decided that in an action of divorce for desertion under the Act of 1938 an averment of willingness on the part of the pursuer to adhere during the whole period of three years is still necessary to make the libel relevant. That case is not binding upon the Whole Court, but I find it sufficient to say that I agree not only with the judgment but also with the reasons given by their Lordships. I may mention that, while Lord Wark states that the Act of 1938 makes two alterations in the law which he specifies, I do not understand him to mean that it may not have made other alterations. In the subsequent case of Pratt v. Pratt (an English appeal under the Matrimonial Causes Act, 1937)Lord Macmillan, in whose opinion Lord Thankerton concurred, referred with approval to Macaskill v. Macaskill, and quoted extensively from the opinion of the Lord Justice-Clerk. It has, however, to be borne in mind that that case deals entirely with the quality of the separation of the spouses which gives right to decree for desertion, and does not deal with the required duration of the desertion or with the date from which the statutory period falls to be computed. But the case decides that desertion is still a breach of the duty of conjugal cohabitation by the deserting spouse not acquiesced in by the other, and accordingly it appears to me that it may be legitimate and proper to refer to decisions under the Act of 1573 as bearing on the character of desertion under the Act of 1938. I cannot however agree with the view that it is essential to refer to these decisions in order to ascertain the meaning of "desertion" as used in the Act of 1938. As was pointed out by Lord Macmillan in Pratt v. Pratt, it is inherent in the conception of marital desertion that the desertion must be persisted in without the consent and against the wishes of the deserted spouse.

The other part of the statutory provision, namely, the expression "persisted in such desertion for a period of not less than three years," raises a more difficult question. Obviously the statute meant to effect an alteration in the period of desertion required and to reduce it to not less than three years. But does it require that the pursuer must aver and prove that he or she was willing to adhere up to the date when the action was raised? The Lord Ordinary has held that this is essential. To a large extent he has proceeded upon the provisions of the Act of 1573. I do not think it is open to question that an examination of the authorities shows that this question cannot be regarded as conclusively settled prior to the passing of the Act of 1938. I have already in Bisset v. Bisset expressed the view that willingness to adhere on the part of the pursuer under the former law was essential up to the date of the raising of the action. I have reconsidered the matter in the light of the argument addressed to us on the pursuer's behalf, but I see no reason to retract the opinion which I then expressed. But the question we have now to consider is whether the same view is correct under the provisions of the 1938 Act.

The view that willingness to adhere up to the date of the raising of the action was essential under the former law was largely based upon the First Division case of Auld v. Auld, and the Whole Court case of Watson v. Watson, and both these decisions proceeded upon the terms of the Act of 1573. That statute, inter alia, prescribed as a necessary preliminary to an action of divorce for desertion that there should be an action of adherence at the instance of the deserted spouse. On one reading of the Act it would seem that the action of adherence was not to be raised until after the expiry of four years. But a practice seems to have grown up of raising the action of adherence after one year's non-adherence by the deserting spouse, but it has never been doubted that, at least during the whole four years, it was essential to prove that, on the one hand, the pursuer was willing to adhere and that, on the other hand, the defender had persisted without reasonable cause in non-adherence. The law, in short, is summed up in a sentence in Lord Watson's opinion in Mackenzie v. Mackenzie, "decree for divorce under that Act," that is the Act of 1573, "is, in my opinion, nothing else than a penalty for obstinate non-adherence."

Section 11 of the Conjugal Rights (Scotland) Amendment Act, 1861, abolished, inter alia, the necessity for the action of adherence, but this was held to be a mere alteration in procedure and not of substance—see Lord President Inglis in Auld v. Auld and Watson v. Watson, and the Lord Chancellor at p. 34 and Lord Watson at p. 41 in Mackenzie v. Mackenzie .Lord Watson thus expressed himself:

"In my opinion, the object of that enactment"

—i.e., the Act of 1861—"is, not to alter the substance of the older statute by giving any new right of action to the pursuer, or any new ground of excuse to the defender, but to simplify procedure by allowing the pursuer to prove non-adherence in his suit for divorce, and dispensing with the necessity for a separate action of adherence and all other preliminaries." So until the Act of 1938 our law was based in substance on the original terms of the Act of 1573. Lord Watson's view was that the action of divorce in itself supplied the place of the action of adherence, and this meant that up to the date of the raising of the action (a), on the one hand, the pursuer's conduct must be such that he would then have succeeded in obtaining decree in an action of adherence, and (b), on the other hand, the defender was entitled to terminate his or her desertion by bona fideoffering to adhere. It necessarily followed from this view that desertion did not entitle the aggrieved spouse to divorce if he or she had committed adultery before the raising of the action. In that event the deserted spouse could not have successfully prosecuted an action of adherence, as adultery was at common law a good defence to such an action and consequently was also a good defence to an action of divorce on the ground of desertion.

It is important to keep in view that, as regards this matter, the law of divorce for desertion was different from the law of divorce for adultery. It has been a settled point in our law for over 100 years that recrimination is no defence to an action for divorce for adultery—Lockhart v. Henderson —and adultery by both spouses may lead to counter actions in which both obtain decree of divorce. Such counter actions are well known in practice, especially in cases where patrimonial interests are involved. It may be also mentioned that there is authority for the view that desertion by the pursuer is not a bar to his obtaining decree in an action of divorce for adultery—Donald v. Donald . The importance of the considerations to which I have been referring is that, as the necessity for the action of adherence either actually or in substance has been swept away by the repeal of the Act of 1573, and as the whole basis of the doctrine that a pursuer in an action of divorce must be in a position which would entitle him or her to require adherence at the date of the raising of the action has disappeared, decisions based upon the terms and provisions of an Act now repealed cannot be regarded as binding authorities upon the construction of the Act of 1938. The result seems to me to be that the matter now falls to be determined entirely upon the provisions of that Act.

In so considering the question I think it is essential to bear in mind that, while, in my opinion, the law prior to 1938 was as above stated, the point cannot be regarded as by any means conclusively settled. It is sufficient to refer to the fact that in one of the most recent cases, namely, the case of Gilfillan v. Gilfillan, Lord Anderson, after referring to the relevant authorities and particularly Scott v. Scott, treated the matter as being quite open, and indeed rather indicates that his opinion was in favour of the contrary view, viz., that a right to divorce vested on the expiry of four years' desertion, and that thereafter the offer to adhere was too late. In that state of matters, if the Legislature intended to make it essential that desertion should be persisted in until the date of the action, I would have expected it expressly so to provide, or at least to have continued in force the Act which was the warrant for the former law. But the Act does not in terms say that desertion must persist up to the date of raising the action, and repeals in toto the old Act. If the only purpose of the Act was to reduce the period of desertion from four to three years and to leave the incidents of the law of divorce for desertion otherwise the same as they were prior to the Act, then all that was required was a simple amendment of the Act of 1573, viz., the substitution of the word three for four, and in that view its total repeal is inexplicable.

A statute authorising divorce for desertion must of course prescribe a minimum period of desertion which is to entitle the deserted spouse to divorce. If that be so, then nothing turns upon the words "not less." Indeed, in prescribing a minimum period, the words "not less than three years" are more appropriate than the words "three years." The statute prescribes a minimum period of desertion, not a maximum. In many cases the desertion complained of may be persisted in long after the expiry of three years. To describe such a case as being one of desertion for three years is inaccurate. To my thinking the possibility of such cases occurring explains the use of the words "not less than three years," and gives them complete meaning and effect.

I cannot read more out of this statutory provision than that it fixes the minimum period of desertion at three years, and provides that, where one spouse has persisted in desertion wilfully and without reasonable cause for three years, a right of divorce emerges in favour of the other spouse. In particular I am unable to see any sufficient ground for importing by implication into this statute a provision which is expressly enacted in the English statute of the previous year, namely, that the three years' desertion must immediately precede the presentation of the petition. The English Act is a statute in pari materia, and it is legitimate to refer by way of contrast to the provision which it contains with reference to this matter. It is suggested that the intention of the Legislature may have been to equate the laws of desertion in England and Scotland. If such was its intention, it seems to me to have exercised care to use words which were calculated to conceal rather than to disclose its intention. A similar contrast arises upon the terms of the Scottish Act itself, as section 6 (2), which deals with divorce for insanity, provides that the defender shall not be held to be incurably insane unless it is proved that he is and has been for a period of five years continuously immediately preceding the raising of the action under care and treatment as an insane person. I am not impressed by the argument that a similar provision to that contained in the English statute may have been considered unnecessary in Scotland, because, as I have endeavoured to show, the law was not regarded as entirely settled, and we must impute to the Legislature the knowledge that by the repeal of the Act of 1573 it had swept away the whole basis of the former law. The Act of 1938 gives a remedy for a state of matters which must persist for not less than three years. In the absence of contrary provision it would seem natural to compute the duration of that state of matters forwards from its commencement, and I can find no justification in the statute for inverting that process and computing the period backwards from the date of action. I accordingly reach the conclusion that at the termination of three years of desertion in terms of the statute a right of divorce emerges to the aggrieved spouse.

It may however very properly be asked: But does this right to divorce continue during the subsistence of the marriage? It is a general rule that civil rights, whether conferred by statute or by the common law, may be abandoned or discharged, and such abandonment or discharge may take place expressly or rebus et factis. I suppose no one doubts that a right of action at once arises to the aggrieved spouse upon commission by the other of an act of adultery, but it is familiar that a right to divorce on that ground may be abandoned or discharged either expressly or by the resumption of conjugal cohabitation. In the case of Johnstone v. Johnstone it was decided that, while long delay per se is not sufficient to bar the remedy of divorce for adultery, it is an important element in determining whether there has been remissio injuriœ. In that case an action of divorce on the ground of adultery was held not to be barred though it was raised 18 years after the act of adultery complained of. I may also mention that in Monahan v. Monahan it was held that a delay of 24 years did not bar an action of divorce for desertion.

I do not think it is desirable in a case which does not raise this question at all to attempt ab ante to define the circumstances which would amount to remissio injuriœ in a case of desertion under the 1938 Act, but I think it would be safe to say that the resumption of conjugal cohabitation by the spouses would be regarded as such, and would bar an action of divorce for desertion prior to the resumption of conjugal life. If the resumption of conjugal life operates as condonation of adultery, why should it not operate as condonation of desertion? While the question is not raised in the present case, it may perhaps also be desirable to test the soundness or otherwise of the views above expressed by considering what would be the result if the pursuer committed adultery either before or after the termination of the three years. As stated by Lord Watson in Mackenzie'scase, an action of adherence was a well-known form of action prior to the Act of 1573, and it has always been a defence to such an action that the pursuer had committed adultery. Accordingly, in my view, if the spouse seeking divorce for desertion commits adultery during the running of the three years, the other spouse has reasonable cause for his or her alleged desertion and has a good defence to an action of divorce. But if I am right in the view that a right of divorce for desertion emerges on the termination of the statutory period, then adultery after the expiry of three years by the spouse seeking divorce is not a valid defence to the divorce action. But, as the marriage subsists until dissolved by divorce or death, adultery is a matrimonial offence and confers upon the other spouse the right to raise a counter action and to obtain decree of divorce therein. In this respect it would appear that the statutory right of divorce for desertion will fall to be dealt with in the same manner as the other new grounds for divorce conferred by the statute (except the ground of insanity with respect to which there are special provisions). Thus, if a wife sues a husband for divorce on the ground that he has been guilty of sodomy, it will not be a valid defence for the husband to say that she has committed adultery; his remedy will be to raise a counter action. This seems to me to be the necessary consequence of the refusal of our law to recognise the doctrine of recrimination.

No doubt situations may be figured which will give rise to important and perhaps difficult questions with regard to the meaning and effect of this new Act, but I feel somewhat reluctant to deal with any other question which is not raised by the facts of the case before us. The archaic terms used in the Act of 1573 have now disappeared from our law, and the law of divorce on the ground of desertion is expressed in ordinary modern terminology. I see no reason to doubt that the simple definition of desertion contained in the new Act will enable the Courts to deal satisfactorily with all the different questions which may arise. Some of the suggested difficulties seem to me to disappear if one bears in mind that the law of Scotland—differing in this aspect, as I understand, from the law of England—declines to recognise the doctrine of recrimination. I must admit that I am not in the least startled by the possibility of cross-actions of divorce on the ground of desertion. If cross-actions of divorce on the ground of adultery are not objectionable, I fail to see the objection to cross-actions of divorce on the ground of desertion.

I should add that I am unable to understand why the acceptance of the construction of the Act which commends itself to me should tend to introduce divorce by consent. In my opinion, the statute requires that during the statutory period the pursuer should not acquiesce in the de facto separation of the spouses, but, on the contrary, should be desirous of resuming conjugal cohabitation with the other. If this requires to be proved, how can it be said that divorce takes place by consent of the parties?

It is also said that this construction of the statute will deprive the deserting spouse of the right to purge his offence by offering to adhere up to the date of the raising of the action. I agree that it will have his result. Under our present law it is true that the deserter, unlike the adulterer, may purge his offence. After, say, ten years of cruel and heartless desertion, which may in the case of a husband amount to a criminal offence, and which may well destroy all affection on the part of the other spouse, the deserter may purge his or her offence by making a bona fide offer to adhere. If the deserted spouse declines to accept the offer and to resume conjugal cohabitation, he or she loses the right to sue for divorce and is liable to be divorced on the expiry of four years. The Legislature may have thought that such a law required amendment.

For these reasons, I am of opinion that the pursuer's averments are relevant, and that, if he proves them, it will, to use the statutory words, be competent for the Court to grant decree of divorce.

I wish also to express my concurrence in the opinion which has been delivered by the Lord President.

LORD MONCRIEFF .—The pursuer concludes for decree of divorce against his wife on the ground of desertion. He supports that conclusion by averring that in August 1931, after the marriage had subsisted for almost six years, the defender suddenly informed him that she no longer intended to live with him; that she refused thereafter to cohabit with him, and that she has continued from that date to live apart. The pursuer goes on to aver that "for at least a period of three years after the defender left him, the pursuer was willing to adhere to her." He has however failed to aver that this willingness on his part continued later, and has thus failed to disclose his own attitude towards the separation of the spouses during the five years immediately preceding his application for divorce. Upon these averments the Lord Ordinary, being satisfied that the pursuer's failure to make the further averments had not been inadvertent, refused to hold the libel relevant and dismissed the action. In my opinion, the Lord Ordinary was right. It is entirely consistent with the pursuer's very limited statement that throughout the last five years of the married life the spouses may have been living apart by mutual consent.

I regard it as of primary importance, when approaching a decision of the single question of statutory interpretation which has been remitted to this Court, to have in view that the whole law of divorce for desertion in Scotland is statutory in its origin and statutory in its development. It is true that the Act of 1573, cap. 55, is conceived in terms which purport to be declaratory of an independently existing law; but such an attitude on the part of the framers of the Act may readily be explained as a polemical reflection from the controversies of the day, yet cannot on the other hand be supposed to evidence a course of custom crystallised into law within the only period available, being the thirteen years which limited any opportunity for a change in the law since the canon law had been displaced. As was noted by Lord President Inglis moreover in Watson v. Watson, there is no record even during these thirteen years of any practice of divorce for desertion in Scotland other than the preparation for the single case to which he refers; and I cannot suppose that the family fortunes of a single Scotsman howsoever prominent, while these may have proved effective to introduce, could ever be regarded as having been relevant to constitute, a law. I do not therefore propose to refer, unless in passing, to the numerous decisions as to the interpretation of this earlier statute which were cited in the interesting historical arguments which were addressed to us by Mr Thomson, and at an earlier stage by Mr Campbell. This chapter of the law of marriage, seeing that it related solely to, and therefore depended solely on, a statute which has now been repealed—see the Divorce (Scotland) Act, 1938,section 7—has now become of merely antiquarian interest; unless in so far as judicial interpretations recorded as part of that chapter may afford guidance, as after noted, towards the construction of terms which were formerly in use and which re-appear in the succeeding statute.

I do not therefore seek assistance towards solving the present problem by endeavouring to ascertain whether under the former law a right to divorce vested in the deserted spouse upon the completion of the four years' statutory period without consideration of his or her subsequent attitude towards the separation of the spouses. Incidentally, however, in so far as the question may be supposed to be relevant, I may say that I have seen no reason to reconsider the opinion I delivered in the Outer House in the case of Gilfillan v. Gilfillan, unless in so far as I might now reach the same result with less difficulty as a member of this Court by suggesting a disapproval, in place of a construction, of Lord Stormonth-Darling's dictum in Scott v. Scott . Upon this question, moreover, I find myself at issue with those of your Lordships who take the view, as was taken by Lord Anderson in the case of Gilfillan v. Gilfillan, that there was any uncertainty as to the law under the former practice. The wife's claim to a jus quœsitum to divorce on the expiry of the four years' period was directly maintained in argument, and was directly negatived as the ratio decidendi, in the leading case of Auld v. Auld . That was a decision which has, no doubt, been the subject of comment by individual judges in later cases, but none the less was a decision which no Court subsequently constituted had jurisdiction to review. It was on that view that practice was regulated in the Outer House throughout the ten years of my experience of practice there.

Had the practice of divorce for desertion proceeded only in part upon statute and been founded in part upon common law, the consequences of a repeal of the statute might of course have been different. In such a case the earlier decisions, or some of them, might no doubt have continued to be authoritative as decisions. Seeing, however, that the common law of Scotland makes no provision for dissolution of marriage for desertion, these decisions must be regarded, as already noted, as having merely interpreted and applied a statute which has now ceased to have effect as law, and so as having depended for their authority on a statute by which they can no longer be supported. As regards the construction to be put upon terms which are used in the later as they had been used in the earlier Act on the other hand, I can conceive of no body of opinion which might be consulted by a Court of interpretation with more propriety than the judicial pronouncements which are recorded as relative to these decisions, and this none the less although the decisions themselves have ceased to have effect. It is as true to-day as it has been at any time since 1573 that "desertion" by a spouse, whether or not it be further described as obstinate and malicious or as wilful and without cause, requires demonstration of something more than a mere separation of the spouses. The test of injury to the spouse claiming to have been "deserted" by requiring him or her to assume the position of the pursuer of an action of adherence—a test which was continued even after 1861, when the actual raising of such an action ceased to be required—remains as searching and as pertinent to-day as when the action itself formed part of the more sedate solemnities of the remedy. This question, moreover, appears to have been actually decided, and I accordingly regard it as unnecessary to do more than refer to the recent case of Macaskill v. Macaskill .

Upon this long prelude, the single question for determination as a general question in the present action is, What is the terminus ad quem of the period of desertion, which, on a sound construction of the first subsection of section 1 of the Divorce (Scotland) Act, 1938, is required to qualify an application for divorce? It was argued for the reclaimer that the terminus should be taken to be the expiry of any completed period of three years of desertion, without regard to the remoteness in time of such an event from the date of the raising of the action. It was somewhat half-heartedly conceded that circumstances other than lapse of time, as for example, certain acts of conjugal misconduct, might perhaps infer a loss of the right to divorce; but nothing was referred to in the statute as indicating or justifying such a distinction. If remissio injuriarum be gone, it was not explained upon what principle condonation, or exceptions other than remissio, must survive. I do not hesitate to reject this argument. It appears to me quite emphatically to give no meaning to the words "not less than," as used in the statute to condition and qualify the reference to a period of three years. I fail to see how every several period envisaged in the statute as a period of "not less than" three years' duration can be supposed to be of uniform duration, or to be of duration always identical with the period of which it is not to fall short. These words, as I read them, can only mean "a period of at least three years, or any longer period which in the circumstances may be required." From the use of these words it thus seems clear that the statute contemplates unequal periods of the "persistence" of the desertion. If the bare expiry of a period of three years without regard to the attending circumstances had been conclusive in any single case to fix the terminus, it must equally have been conclusive in all cases; but this is a consequence which the statute has been careful to exclude. Although I have endeavoured to modify this view of the intention of these words upon a consideration of the various suggestions which have been made, I can still only regard this argument as an invitation to read these words out of the statute.

An alternative terminus of the statutory period must accordingly be found; and the only terminus which appears to me to be available and to be proper as the terminus up to which (beyond its minimum) the statutory desertion is to "persist" is that which is determined by actual decree of divorce. Under the former practice it was held that an offer to adhere came too late once the action for divorce had been raised, but this proceeded upon a special provision of the Act of 1573 which has no parallel in the Act of 1938—see Murray v. M'Lauchlan . There being now no statutory direction to an opposite effect, I am of opinion that the general doctrine which obtains in such cases must apply; and that, in answer to a complaint of misconduct, an offer to purge misconduct made in good faith before decree cannot be disregarded as having been made too late. It must be remembered that it is nowhere suggested that a primary interest of the lieges is operative in the direction of release from marriage. Where one spouse complains of desertion and the other renounces it, the logical consequence would seem to be reconstitution and not dissolution of marriage. Where both parties are content with a separation of lives, there remains no party who can be described as a party injurer, and no party qualified by desertion to apply for divorce. In such a case, at the only critical dates, being the dates at which divorce is applied for and awarded, it seems obvious that decree is granted of consent. I do not think it is for Courts of law to anticipate a practice of perjury, or to be influenced by such an anticipation in their construction of a statute. Moreover, as is more fully developed by Lord Carmont, there is no time limit for perjury.

So far I have dealt with the interpretation of this enactment as raising only a proper question of construction of terms, of which only one construction should be open. It may be, however, and the equal division of judicial opinion would appear to support the view—that the language of the enactment must be recognised as apt to carry more than a single meaning. This suggestion, at least, appears to receive support from the contrasted clarity of the terms of the relative enactment for England in the statute which was passed in the previous year. An obscurity which could so easily have been avoided may be supposed not to have escaped observation as equivocal, but rather to have delegated the determination of it. If the inference be sound, and the Court indeed be charged to choose between alternative interpretations affecting affairs of status, it may be proper for the Court to have regard, as it would not in general be proper, to considerations of propriety and of expediency. Upon such a view I would regard it as highly inexpedient, now that the law of Scotland and the law of England as to this matter have in substance been made the same, to introduce into the working of these systems of law a merely artificial distinction which has no relation to the particular requirements of either of them. I would, moreover, regard as unfortunate the introduction into the law of Scotland of a condition of status under which a spouse, who although at one time guilty must be supposed to have ceased from his offence and may even himself have incurred an injury, should be deprived of the protection quantum valeat of a remissio injuriarum,and should find himself subject, without limit of time or continuance of offence, to be declared married or unmarried at caprice. Nor does it indeed seem in any way unreasonable to refuse dissolution of marriage as for "desertion" to a spouse who ex hypothesi has not been injured, or has not continued to be injured, by the separation of the spouses, but has on the contrary consented, unless as a matter of history, to that separation. I would regard it as contrary to all propriety if a spouse who had rejected, and had for years continued to reject, even a belated offer to adhere, should none the less remain entitled to the rights conferred on a spouse who had been deserted.

While we had a most excellent argument from learned counsel for the reclaimer, and while every consideration which fairness indicated may be assumed to have been disclosed, it is in the very nature of a forensic statement (which is conceived as a statement ex parte)to act only as a first instalment of the presentation of a case, and to require as its complement a counter statement ex parte. I accordingly venture to revert, in supplement of what I said in the case of MacDougall v. Chitnavis, to what I continue to regard as a defect in our procedure in affairs of status. I still think it unfortunate that, when the Court is asked to review in an undefended action a decision by a Lord Ordinary upon such a question, and is asked to determine that question upon an address by counsel for the reclaimer, the Court should not possess, or should not in practice exercise, a power to appoint the case to be argued in support of the decision.

LORD MACKAY (read by Lord Fleming).—I would be prepared to rest my vote, upon the broad question which many of your Lordships have phrased, upon a complete approval of the opinion of the learned Lord Ordinary, who appears to my thinking to have, in his two judgments (for I think both his original opinion and his opinion on the Whole Court hearing should be read together), exhausted the considerations which are truly relevant. I am further of opinion that, despite the difference of judicial view which has emerged, yet no logical failure in proper deduction or in construction of statute has been found in his opinions. To this general statement I would add that I have had the opportunity, now, of reading nearly all the opinions rendered; and I concur in toto in the reasons given by Lord Carmont, Lord Jamieson and Lord Patrick, and also notably in the opinion of Lord Moncrieff, subject, in the last case, to one reservation. The shorter exposition of Lord Stevenson, which reached me later, contains the same principles. All these opinions seem to me to express the true view of the old law, and of the new variation in that law introduced by the Divorce (Scotland) Act, 1938.

What I feel moved to add is more to express the personal outlook which is naturally proper to each individual judge. My brethren on both sides of the case have treated the question sometimes from the historical point of view, forward; sometimes from a view of construction, looking backward. I feel that the preferable point of view is to begin with the Act of 1938 in all its parts, and to consider what conclusions of construction a trained judicial mind coming from outside Scottish law would properly draw in regard to the matter in question. So doing, I note, first, that the Act, by its principal title, is an Act "to amend the law of Scotland with regard to Divorce." And I notice, secondly, that this principal section (section 1) expresses itself in the form that, without prejudice to the power of the Court to grant decree on one ground (to wit, adultery) "it shall be competent for the Court to grant decree of divorce on any of the following grounds." The first aid to construction which I think any such mind would properly take is to consider how far the Act merely amended grounds which pre-existed, and how far it introduced grounds which, being new, must be construed according to the meaning of the words (in English, or in legal terminology) put into use. Now, so treated, I find two of the heads, (a) and (c), which fall into the earlier class, and two, (b) and (d), which rather fall into the novel class. Quite plainly, cruelty as a ground of divorce is to be read as within the exact same definition of cruelty as was formerly worked out in the case of decrees of separation. Similarly, I am of opinion that in the case of head (a), which deals, generally speaking, with "desertion," the correct solution would be, without more, to hold that the reference, in a case of "desertion for a period of not less than three years," was to the same legal category which had been worked out by decisions for 70 years before the Act. It is, no doubt, quite true that the Act prefers to use, in describing the ground, more modern terminology than the ancient Act, 1573, cap. 55, employed. It uses the comparatively simple words, "… has wilfully and without reasonable cause deserted …" and then, "… and persisted. …" I fail to appreciate the view that would differentiate such from the "defectioun" and the "obstinacie" of the sixteenth century Act. It is almost impossible, for my mind, to reach the conclusion which is necessary for the opposite opinion to that of the Lord Ordinary, that the Legislature in these simple words meant to sweep away the whole law of desertion, all thoroughly explored in Scotland, and to substitute for it some other definition of "wilful desertion without cause," which must be interpreted by the Courts as on a clean sheet. It would be just as reasonable to suggest that the Courts must begin de novo to consider what was the legal significance of the words occurring within the same phrase, "without reasonable cause." In my judgment, and without hesitation, the Legislature meant that the causes which were receivable and which were not receivable for justifying the leaving of the other spouse are precisely those which have received the sanction of a long train of decisions. I find that view of the case very greatly aided and assisted by the fact that Lord Macmillan, in the case of Pratt v. Pratt, dealing with the same word "desertion" as introduced, one year earlier, into England, approves of the view taken by my brethren of the Second Division in Macaskill v. Macaskill, where they (in my humble opinion) rightly applied the older law in ascertaining what was the character of desertion. The Lord Justice-Clerk, indeed, in one sentence which has the approval of Lord Macmillan in the House of Lords, says this, "The essential character of desertion remains unchanged." That is my view.

If so, then the question does become one whether, under the real and true meaning of the 70 years of decisions, there could be posited a characteristic of desertion of this sort—that, upon the passage of a prescribed period which was then four years, there came to be a vested right in the person aggrieved by his spouse's "defection," such in character that it was irrelevant and incompetent to inquire whether he or she, during the period allowed by him or her to elapse before bringing the action, was still anxious for reconciliation and cohabitation if the spouse had solicited such reconciliation. Now, I was called on, early in my nine years of experience as a judge of first instance, to decide this point upon the authorities; and I decided it without hesitation in favour of the view which, in common with Lord Patrick and others, I affirm to have been the consistent practice in our Outer House, namely, that the various judgments of Lord President Inglis and of the Courts over which he presided, to which I shall shortly refer, had settled for ever that question of vested right, and in the negative.

Only two precedents were suggested as throwing doubt on the proposition just enunciated. One was a decision of Lord Constable's in Pirie v. Pirie, reported only in Session Notes, and the other the obiter opinion of Lord Anderson in Gilfillan v. Gilfillan, at p. 456. I agree with those who point out that Lord Constable (who very nearly was my immediate predecessor in the Outer House, and whose views I had ample opportunity of knowing when in practice) administered the law as I and others have done. The short report of Pirie v. Pirie seems to me to show that, apart from a question of persistence of remonstrance, he decided only one thing, to wit, that an offer in the course of the process, by the defender, of adherence, came too late. That had indeed been twice over decided by more authoritative Courts. Of Gilfillan v. Gilfillan I can only say that the Lord Ordinary was not disapproved, and that I agree with his inference from the cases of Muir v. Muir, Winchcombe v. Winchcombe, Lilley v. Lilley, Auld v. Auld, and others. Lord Anderson, no doubt, suggested that the general question might possibly be open. But not in that Court; only if it was moved to send it to some fuller Court which could overrule prior authority. He also ventured a rather strange affirmation that one view obtained support from certain observations from Lord President Inglis in the case of Auld v. Auld . In my opinion, then and now, the judgment of the Court in Auld v. Auld, which has been amply referred to, was far more than "support" for a certain view; it definitely pronounced a unanimous decision for that view, in consistence with a number of earlier authorities, and it overruled a small number of dissenting judgments. In my view, it is vain to talk of an opinion "of Lord President Inglis" as affording support on the point in question as if he and he alone had stated the rule. It seems to me that he had in three cases, namely, Winchcombe v. Winchcombe, Auld v. Auld, and Watson v. Watson, to lead his Court in express decisions between the two constructions of the law of desertion. He did so, and the matter does not rest on his own dictum; it is concurred in by all the members of the various Courts who sat with him. Moreover, the same view of the law of desertion, as it stood at that time, was repeated by a different and unanimous Court in the case of Hunter v. Hunter . Lastly, I think also that the very weighty dictum of Lord President Dunedin in the case of Hutchison v. Hutchison was intended to express the view of the profession at that time, that these various views, especially of Lord President Inglis, had settled the question of the attitude of willingness of both spouses, for good and all. His Lordship said:

"Really, I think that the last word has already been said by Lord President Inglis in the case of Watson, and I have nothing to add. In a single sentence it comes to this, that there cannot be desertion by a person whom the other spouse does not wish to return."

I do not read him as limited to any one special point. If then these doctrines be fixed and are stayed on sound principle, the most the pursuer could here say was not, "I have been deserted," but "I was" (historically) "a deserted spouse in (say) 1930, and I was a deserted spouse till (say) 1933, and no longer." To say so was not enough.

There remains to mention the reservation from the views of my brother Lord Moncrieff to which I have referred. This is a reservation that does not affect the substance of the present case as to the relevancy of the period succeeding the expiry of a bare three years. I am bound to confess, with all due deference, that the question as to the disposition of the spouses after action raised by one of them is an independent question which turns on other considerations altogether. If the defender cannot by this time be heard to tender a willingness, surely neither can the pursuer be held to affirm that, if she were to do so, he would accept. Moreover, I think it has been twice over at least decided in the sense which, in common with my brethren, I sustain. The true outlook on the question seems to me to be this; first, that a person's disposition as to being able to assert "my wife (or my husband) has deserted me for at least three years," is an issue which is always relevant till recourse to the Court be taken, but not later; and secondly, that the Court is not in use to put against persons approaching it for remedy the fact that the machinery of the Court is slow, and that weeks or months may elapse after service of the action, and before decree. It treats the period due to the slow grinding mill as if it did not exist. This ratio has been applied in workmen's compensation and in various other classes of case.

Lastly, there has been some considerable reference to the bearing of the terms of the English statute of 1937, the Matrimonial Causes Act. I do not think that we can look at Hansard or any inferior authority as to what arguments or suggestions lay before the two Parliaments; nor do I think that we can refer, as to the meaning of an amending statute of the Scottish law of divorce, to the terms of a statute in a sister country enjoying a different law of divorce. The only possibly proper use of the facts of legislation which I think might be approved goes no farther than this—that in dubio (and the conflict of opinion here shows that there is dubium) it is better, at this time of day, to equate the systems of desertion which will, in future, be applied in two sister halves of one island, rather than to vote for a conclusion which would plainly make two different systems of law applicable to subjects of the same Crown.

LORD WARK (read by Lord Moncrieff).—The pursuer in this case sues his wife for divorce for desertion. The summons was signeted on 19th May 1939. The pursuer avers that his wife deserted him in August 1931, and that, for a period of at least three years thereafter, he was willing to adhere to the defender. He abstains from making any averment that he was willing to adhere after the expiry of these three years; and the case was decided by the Lord Ordinary on the footing that he was not so willing. His counsel argued the case on that footing and maintained that on the expiry of three years, during which the defender was in desertion and the pursuer was willing to adhere, he became entitled to divorce the defender; and that his attitude of mind or conduct during the subsequent period between that date and the date of raising the action was irrelevant. The case thus raises in the most naked form the question whether, under the Divorce (Scotland) Act, 1938, a vested right to divorce is acquired by a spouse who, during any period of three years, however remote from the date of action, can aver and prove that the other spouse was in desertion and that he was willing to adhere to her during that period. As I understood the argument for the pursuer, it was maintained, not only that willingness to adhere after the three years was unnecessary, but that the conduct of the pursuer after that date could not be inquired into. It was argued that this was the effect of sections 1 (1) (a)and 7 of the Divorce (Scotland) Act, 1938.

Under the practice which prevailed in our Courts prior to the Act of 1938, it was usual to aver willingness to adhere up to the date of raising the action. But it was more than once sought to be maintained that such an averment was unnecessary because a vested right to divorce might be acquired by a spouse who was deserted for four years and who had, during that time, been willing to adhere and entitled to require adherence. Murray v. M'Lauchlan was relied on by the pursuer in deciding that a jus quœsitum to divorce might be acquired before the raising of the action. That decision was so interpreted by Lord Watson in Mackenzie v. Mackenzie . The same result was arrived at in Muir v. Muir . In Auld v. Auld it was argued that the case of Muir v. Muir and that of Winchcombe v. Winchcombe established that a vested right to divorce emerged after four years' desertion. This argument was rejected by the Court, and Lord President Inglis and Lord Shand criticised the dictum of Lord Justice-Clerk Moncreiff in Muir v. Muir that an offer of adherence after the raising of the action came too late. The case was decided against the pursuer upon the ground that she had admitted that she had committed adultery after the expiry of the four years and long before the raising of the action. This decision was followed in Hunter v. Hunter . In Scott v. Scott it was held that the insanity of the defender, occurring after the expiry of four years from the date of desertion, did not prevent the pursuer from obtaining decree of divorce. Lord Stormonth-Darling said (at p. 1130):

"It seems, therefore, to be the result of all the cases that when, as here, there has been ‘malicious and obstinat defectioun of the partie offender’ for the full statutory period of four years, the injured spouse being all that time willing to adhere, and not being disentitled by any conjugal misconduct of her own from seeking the remedy of divorce, that is by itself sufficient cause of divorce, whether it be called a vested right or a jus quœsitum to apply for the remedy."

In Mulherron v. Mulherron it was held that it was improper at the proof to ask questions directed towards the then state of mind of the pursuer as regards adherence, that matter being irrelevant. In Pirie v. Pirie Lord Constable, in the Outer House, being, as he conceived, bound by the decision in Scott v. Scott, and especially by the passage I have quoted, held that an offer by the defender to adhere, outwith the four years and after the raising of the action, came too late. In Gilfillan v. Gilfillan Lord Moncrieff held that offers to adhere, made by the deserting spouse after the four years but prior to the raising of the action, did not come too late, and that the pursuer was bound to investigate and entertain them unless satisfied that they were not genuine. He pointed out that Lord Stormonth-Darling, in an earlier part of his opinion in Scott v. Scott, had recognised that adultery of the pursuer outwith the four years would be a bar to divorce; and argued that, if non-adherence could thus be terminated, it would be no less terminated by a genuine offer to adhere. The Inner House reversed on the facts. Lord Anderson said:

"I do not propose to express a concluded view on this topic because there is undoubtedly a conflict of judicial opinion on the subject, and it may be that the question, if it is ever to be decided, must be decided in a contested case and by a larger Court than that sitting now. I shall content myself by stating what are the rival views on this legal question. One view is—and this view is said to be substantially supported by the cases of Muir, Winchcombe, and especially by the case of Scott—that after the expiry of the quadriennium the deserted spouse has a statutory right to obtain the statutory remedy if he or she desires to do so, and that it is too late then for the deserting spouse to attempt to purge the desertion by making an offer of adherence. That is one view, and it is supported by these authorities. … The rival view is this: That a deserting spouse, at any time after the expiry of the quadriennium—at any time prior to legal proceedings being taken, at all events—may get rid of the effects of four years' desertion and defeat any statutory rights which the deserted spouse may have acquired, by making a bona fide offer to adhere. That is the rival view; and it is said that it obtains support from certain observations made by Lord President Inglis in the case of Auld. In that state of the law it is manifest that this is not a suitable case for the decision of the legal point dealt with by the Lord Ordinary."

His Lordship might have added that the first of these two views is supported by the weighty authority of Lord Watson in the passage from his opinion in Mackenzie v. Mackenzie, at p. 41, quoted by my Lord Justice-Clerk. In Bisset v. Bisset Lord Fleming held that an offer to adhere outwith the four years was good.

Accordingly it must, I think, be taken that, under the law as it existed before the 1938 Act, it was not finally or authoritatively determined whether it was sufficient to entitle to divorce that there had been desertion for the statutory period, if thereafter, and before the raising of the action, non-adherence was sought to be terminated by an offer to adhere. It is, however, I think, impossible to read the opinions against that proposition without seeing that they are, one and all, founded upon the view expressed by Lord President Inglis in Watson v. Watson, that the Conjugal Rights (Scotland) Amendment Act of 1861 made no difference in the essentials of divorce, but only altered procedure; so that the pursuer of an action of divorce for desertion must be in the position of being able to insist in an action of adherence at the moment when he raises his action of divorce; and any answer which would be a good defence to the one action is equally good to the other.

But, it is said, all that has been swept away. The test now of the right to divorce is, not the right to demand adherence at the date of the action, but the establishment of the requisites demanded by the new Act; and these no longer include the right to demand adherence as at the date of the action. Desertion is not defined in that Act. But it is a term well known to the law of Scotland. "Desertion and wilful non-adherence are simply two different words to express the same thing." Cf. opinions in Bowman v. Bowman . Wilful non-adherence means non-adherence without reasonable cause. During the statutory period the complaining spouse must still be able to say that the offending spouse is in wilful non-adherence. He must therefore aver, as was held in Macaskill v. Macaskill, that he was himself willing to adhere during the statutory period. That was all that was decided in that case; but I think the pursuer must also be able to say, if challenged, that during the statutory period no reasonable cause existed for non-adherence. His adultery during that period would therefore, in my opinion, still be a bar to this particular remedy because, in face of it, he could not establish non-adherence without reasonable cause, that is, desertion during the statutory period. The question, however, still remains, What is the relevant statutory period? Is it any period or is it a period which must persist up to the date of raising of the action? The statute says "persisted in such desertion for a period of not less than three years." Taking the language in its ordinary meaning, I do not think that this expression is sufficient to warrant the view that the period of desertion must continue up to the date of the action. It is, in my opinion, nothing more than a definition of the minimum period necessary to afford the remedy. The Lord Ordinary has drawn attention to the fact that, in the English statute of the previous year, the Matrimonial Causes Act, 1937, a petition for divorce may be presented on the ground that "the respondent has deserted the petitioner without reasonable cause for a period of at least three years immediately preceding the presentation of the petition." He suggests that the difference between the two statutes is less significant when it is remembered that the English statute introduced a new ground of divorce, whereas the Scottish statute dealt, by way of amendment, with a law that was already long established. But the law which the Scottish statute amended was statutory law. It was suggested to us that the Act 1573, cap. 55, was declaratory of the common law. That view is contrary to the opinion of Lord President Inglis in Watson v. Watson, with which I respectfully agree. The previous statutes have now been repealed in toto,and any practice founded upon their terms cannot, in my view, be now regarded as sufficient to qualify the terms of the new statute. But further, as has been pointed out, that practice was not uniform. No doubt it was never established that a vested right to divorce emerged after the four years' desertion required by the earlier statutes. But, on the other hand, the question whether an offer of adherence after the four years was a good defence, if the offer was genuine, was regarded as an open question so recently as 1931; and the grounds upon which that proposition might have been maintained appear to me to have been swept away by the repeal of the statutes of 1573 and 1861."

It was suggested that the introductory words of the section, "It shall be competent," conferred some discretion on the Court as to the granting of divorce. I do not think so. These words apply to the whole section and to all the grounds of divorce, some of them entirely new, contained in it. If any one of these grounds is established in fact, in my opinion the Court must grant the remedy of divorce.

At first sight it seems to be strange that a pursuer who has been guilty of adultery should be entitled to divorce for desertion, even if his adultery be after the lapse of three years' desertion by the other spouse. But I think there are several answers which may be made; (first) that recrimination has never been part of our law of divorce; (second) that it is always open to the defender to raise a cross-action. It is of interest to notice that Baron Hume (Lectures, Stair Society Edition, vol. i, p. 171) held the opinion that this ought always to have been the remedy of a spouse, sued for divorce for desertion, who could establish the other's adultery; and it might well have been that the Courts would have taken this view but for the coupling of the right to divorce for desertion with the right to raise an action of adherence. But the most conclusive answer appears to me to be that, if the Legislature, when repealing the older statutes, had intended to preserve such pleas as were open to a defender under these statutes as construed by the Courts, it would have said so. We must, I think, in accordance with the ordinary principles of interpretation, construe the language of the statute according to its ordinary meaning and are not entitled to qualify that language by considerations of policy or otherwise which the Legislature, judging by the language it has used, has not entertained.

I am therefore of opinion that the reclaiming motion succeeds, and that the pursuer is entitled to have the libel held relevant. I desire to add, however, that, in considering whether the pursuer has established desertion by the defender for the statutory period of three years, which need not immediately precede the date of raising the action, it is, in my opinion, open to the Court to consider the conduct of the parties after the three years, in so far as that conduct may throw light upon the real attitude of the parties during the three year period.

LORD CARMONT .—The question for the consideration of the Whole Court is whether a pursuer in an action of divorce for desertion must aver willingness to adhere to the other spouse up to the time when divorce proceedings are initiated.

The question arises under the Divorce (Scotland) Act, 1938,but, as doubt has been expressed as to the state of the law before the passing of that Act, it seems to me necessary to clear up that matter also. The Act of 1938 is an amending Act, and I would hesitate to attempt to read the language of section 1 except in the light of the past history of desertion.

In order to get the sequence of events, I venture to remind your Lordships that before the Divorce (Scotland) Act, 1938, was passed there were, according to Scots law, only two grounds of divorce, adultery and desertion. The former ground was only to be found in the common law as developed after 1560; the latter had the statutory origin of the Scots Act of 1573, cap. 55. The Act of 1938 bears to be an amending Act with regard to divorce and the dissolution of marriage. The side note of the first section refers to "Additional grounds of divorce," but, of the four grounds mentioned, only three are additional to the grounds already in existence at the passing of the Act. The word "additional" may, however, be used with reference only to adultery, for the section, somewhat curiously, begins by saying that the enactment is without prejudice to the power of the Court to grant decree of divorce on the ground of adultery. The next notable thing about the framework of the section is that certain things are not declared grounds for divorce; the section merely enacts that it shall be competent for the Court to grant decree of divorce in certain cases. This does not suggest any attempt to provide a self-contained code, but suggests rather relationship to some well-recognised system. The first ground stated is that the defender "(a) has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years." The only effect of this head is, at first sight at all events, to substitute three years for four years as the minimum period during which what has for generations been styled "desertion" must have lasted. It has been pointed out that, in point of legislative machinery, it was only necessary to amend the Act of 1573, cap. 55, by substituting the words "three years" for "four years" in that Act, and it is suggested that the repeal of the Act of 1573 would not have been resorted to unless the new Act had been meant to have some more extensive effect than a mere reduction in the necessary period of time. I am not satisfied that any ight can be thrown on the scheme of the 1938 Act because it was resolved to repeal the old Act and to enact in regard to desertion in the language of head (a) of section 1 (1). It is not easy to effect the amendment of an old Act of the Scots Parliament which is couched in archaic style and in wording which ill consorts with modern usage and language, and I am not surprised that Parliament did not resort to the patchwork method of amendment. It is well known that the canons of interpretation of an old Scots Act are different from those applied to modern legislation, and, if a hybrid of old and new appeared, it would be insoluble to determine what the method of construction should be. No doubt section 11 of the Conjugal Rights (Scotland) Amendment Act, 1861, affected the requirements of the old Act, and indeed partly repealed it (section 18—see also Statute Law Revision Act, 1906, as to the subsequent position), but I do not think that the position of interpreters of the law relative to desertion was made easier after the passing of the Act of 1861.

Desertion, since 29th July 1938, cannot truly be said to be an additional ground of divorce; that has existed since 1573. There is nothing to indicate that the nature of desertion, as it has been understood in Scotland until 1938, is meant to be in any way departed from. I do not conceive that we are at liberty to say that "desertion" merely has the meaning under the 1938 Act that it has (say) under the Poor Law statutes:—the physical departure of a husband from a wife, indigent be it, without regard to the question whether the separation has been arranged between the spouses. I would be as little content with taking the popular meaning of "desertion" as I would be satisfied by investigation of what amounts to "desertion" under the Army Act. The ordinary meaning of one departing (the deserter) and one remaining (the deserter) fails to satisfy what our law has pronounced in regard to married persons, that the implications of desertion are to be found as much in the mind of a spouse who is left in situ as in the mind of the one who in fact goes forth. Desertion, by interpretation in our Courts, may begin as from a time when both parties have been for long living separate, which might strike the man in the street as unreal; just as a dictionary reader might be surprised to find a wife held to be deserting her husband when she had for a score of years never been absent a night from under his roof.

I cannot agree, therefore, with the suggestion which has been put forward, or which underlies some of the arguments we have heard, that the 1938 Act can be read as if it had no lineage. I think that the history of divorce for desertion must provide the background for the statute in force to-day, and that the language which has received a meaning from the Court should be continued in service still, unless there is good and clear ground for discarding it. I do not think that, because of the final repeal and re-statement of the law, the re-statement is cast loose from the old underlying principles. It is difficult to imagine that we are intended to take an enactment providing for decree of divorce for desertion without applying to the words used a connotation for so long attached to the word "deserting," that is, the leaving of a spouse not only without his or her consent, but something begun and continuing vis-à-vis a spouse willing to adhere. The 1938 Act nowhere says that the desertee must be willing to adhere, but it is not surprising that it has been held in the case of Macaskill v. Macaskill that desertion must include what the decisions of the past have fixed, i.e., not only a departure without the consent of the other spouse but the remaining away from one willing to have the other back to conjugal duty. It was decided in Macaskill v. Macaskill —I happened to be a member of the Court, and I naturally approve of the decision—that under the 1938 Act, as properly interpreted, a pursuer did not state a relevant case unless he averred willingness to adhere during the triennium. I do not think that this result could easily have been reached unless "desertion" had been accepted as a word with a meaning attached to it from earlier legislation and authority, or at least if the words "persisted in desertion" had not been read in the light of past cases.

It is perhaps unnecessary to point to other words used in the 1938 Act, "without reasonable cause," which are practically identical with those which are to be found in the Act of 1573. These are to be found construed throughout the course of the decisions. It is of course possible that the Legislature meant the whole corpus of judicial interpretation in the very branch of law to be ignored and that the Court should begin of new to interpret the phrase without any limitation imposed by precedent. I shrink from adopting this view, and prefer to accept the phrase as having the context assigned to it in the past. That context may have to be extended by reason of the changes made by the 1938 Act in providing new grounds for divorce. But such extension does not annul past interpretation not inconsistent with the extension. It will make my meaning plain to say that, in view of the fact that a husband's sodomy is made a ground of divorce, it would follow that such sodomy might be held in law to be a "reasonable ground" which would now justify a wife's departure from her guilty husband. But that view in no way impinges on what has been held to be "a reasonable cause" in the past. And such extension by interpretation as I have figured would not mean that the phrase could be extended so as to include "incompatibility of temper," for that has no statutory support and would be in disregard of the whole trend of the case law in this chapter of divorce.

I am not leaving out of account the fact that the word "desertion" does not appear in either of the statutory enactments before 1938. "Desertion" is the judicial shorthand for what is dealt with in the old Act; "divertis fra utheris companie without ane ressonabill caus" and the remaining away in "malicious obstinacie," or to use the other words stated as an alternative "the malicious and obstinat defectioun of the partie offendar." But it is all the more significant that it is the judicial shorthand word which appears in the 1938 Act, for it is to the word "desertion" that the case law has been so intimately attached. At first sight the archaic "divert" is happier when coupled with "a reasonable cause," for "desertion without reasonable cause," as used in the 1938 Act, suggests the antithesis "desertion with reasonable cause," which in the eye of the law should not be desertion at all. But, as it seems to me, the mere fact that the word "desertion" is chosen, rather than "separates from" or "diverts from," indicates a desire to use a word which has had meanings wrapped up in it which go beyond mere physical departure. The word "desertion" lay at hand encrusted with the case law of ages; it connotes the constructive desertion of a husband who drives forth his wife from the home by his conduct (not amounting to cruelty) while he remains. He is the—if I may so phrase it—deserting stay-at-home. "Desertion," too, will by judicial interpretation apply when neither spouse departs yet one of them refuses carnal intercourse. It is to have this wealth of meaning that the new Act has had recourse to the words "desertion" and "deserted," and it has adopted, not casually, words which are charged with legal meaning. It is difficult, I think, to imagine that this was not done with a view to attaching the decisions of the past to the new legislation.

Indeed, it may be said that the 1938 Act employs language which has a technical meaning, a meaning which has been impressed on it by generations of judicial decisions, and it is not open to us now to treat the words as having only an ordinary or popular significance.

I have been at pains to show that the Act of 1938 must be read in the light of the past in regard to the various words and phrases within the section, so that, when the question is reached of determining what right a deserted spouse has been given on the expiry of the statutory period of desertion, help may be obtained from the past in the domain both of enactment and of decision.

The Act of 1573 declared that, if no sufficient cause were alleged for the non-adherence, the malicious and obstinate defection of the party offender should be a sufficient cause of divorce. The basic period grounding the right to put the machinery in motion to get divorce was defection "be the space of four zeiris." Let me refer to the former necessary preliminaries of an action of divorce for desertion: a demand for adherence, and privy admonition by the offended spouse.

Whatever view may be taken of the statutory intention shown in the Act of 1573, the mere fact that, before long after that date, it was optional to raise an action of adherence either during the running of the quadriennium or after its termination points plainly to there being nothing then accepted by the judges as a right which could be looked on as "vested" on the mere expiry of the quadriennium. As regards the use of the expression vested right, I distrust the use of language imported from one branch of law into another. Too often metaphor and analogy cover as much error as a generality. At the best, the offended spouse had a right to apply to the Court at the end of four years' desertion, but when he sought his remedy he had still to be in the character of a deserted spouse. The offended spouse had to satisfy the Court, when it sat in judgment, that he had been until the taking of proceedings himself willing to adhere. He was given decree not as from the expiry of the four years, as in the case of a true right vested at that date, but as a person himself willing to adhere until the eleventh hour who had proved the desertion of the other spouse. The minimum period which could be founded on was four years, and, if an offended spouse took action at once, the burden on him of disclosing his own frame of mind was readily satisfied. If, on the other hand, after a desertion of four years, the offended spouse lay by for about 20 years, it was not likely that a Court would be satisfied that, even during the four years, a pursuer's attitude to the alleged desertion was not one of acquiescence which would disentitle him to the remedy of divorce. If the view had ever been right that the Act of 1573 gave a vested right to divorce on the expiry of four years, it is difficult to understand how 265 years later the Court should be considering whether an offer to adhere actually made in the course of the divorce process was not within the rights of the offending spouse, so as to bring proceedings to an end—Murray v. M'Lauchlan .

Notwithstanding the existence of such a case as Murray v. M'Lauchlan, it is suggested that there were two schools of thought in Scots law, one which supported the vested right theory, and the other which held that offers to adhere were relevant to consider up to the bringing of divorce proceedings. This suggestion, I think, does too much honour to some very recent judicial observations which seem to me to have no link with the past. It is not adequate treatment of the whole history of desertion coupled with such recent decisions as Bisset v. Bisset, which are in harmony with the course of events, to put forward in support of the contrary view a dictum in Gilfillan v. Gilfillan in 1931, which suggests out of the blue that the question of vested right is open because the point had not been formally negatived in the course of 300 years. It seems to me to have been quite unnecessary for the Legislature to have enacted in 1861 that no action of adherence need be brought before divorce proceedings, if four years' desertion gave a vested right to the offended spouse. And an action of adherence after the quadriennium positively invited a return of the alleged delinquent. After 1861 we know from the decision Auld v. Auld, and from the mouth of Lord President Inglis, that the changes effected by the 11th section of the Conjugal Rights (Scotland) Amendment Act, 1861, are changes in the form of the procedure merely. "It is plain," he said (at p. 39), "that under the old law a reasonable cause for non-adherence might be alleged when an action of adherence was brought, and would be a good defence, however long that might be after the desertion began." And in the case then under consideration, notwithstanding the passing of the Conjugal Rights (Scotland) Amendment Act, 1861, decree of divorce for desertion was refused to a wife guilty of adultery seven years after the departure of her husband, on the ground that she could not then have demanded adherence. This plainly is a refusal to recognise any vested right after the lapse of four years.

The first sign of any support for the view of a vested right comes in 1931 as an obiter dictum by Lord Anderson in a case which does not appear in the official reports. There is no Inner House case which decides that such a vested right exists, and I think that, standing the history of the matter, and the authority to the contrary, Lord Anderson was not justified in Gilfillan v. Gilfillan in saying that the question was open.

If, then, there was no vested right recognised as being applicable to the quadriennium, is there, because of the 1938 Act, a vested right applicable to the triennium? I am of opinion that there is not. The sole change brought about is in regard to the duration of the period. Divorce remains for "desertion" as interpreted in the past; for wilful desertion; for desertion without a reasonable cause, as before; for desertion persisted in. It is, of course, not necessary to demand adherence from the alleged offender as a preliminary to divorce, but neither was it after the 1861 Act. If it be advanced as an argument that both the 1573 and the 1861 enactments are repealed, that does not mean that divorce had ceased to be for "desertion" as interpreted by the Courts for centuries, and, so interpreted, there cannot be desertion of a person not entitled to demand adherence. Again, if it be alleged that this is only true during the running of the triennium, and that the Court can only consider whether the pursuer is deserted as at the termination of the period, I would reply that the Court has always considered whether a pursuer is deserted as at the date of the decree, and not solely whether he was deserted as at a prior date. The burden is on those who seek to displace this recognised principle to show definitely that the new Act has in terms effected a change. So far from that being made out, and made out clearly, the terms of the 1938 Act point in the opposite direction. Had the new Act said "deserted the pursuer and persisted in such desertion for three years," a more plausible argument might be advanced that after the lapse of the three years nothing further could now be inquired into, although the spouse alleging desertion lay by for 20 years. But even in such a case it could, I think, be validly maintained that the applicant must still retain the character of a deserted spouse when coming to the Court for his remedy. But however that might be, the Act pointedly does not say persist for three years, but says persist for a period of not less than three years, which covers the very case of a lapse of time after the triennium, before coming to the Court, and so as to ensure that the pursuer even after delay still came to the Court in the capacity of a deserted spouse. This reading secures not only continuity in the judicial system, but maintains a necessary safeguard against those spouses who have long since by adulterous conduct subsequent to the triennium forfeited their right to ask the other spouse to return.

One of your Lordships has asked whether on any known principle of the interpretation of statutes section 1 of the 1938 Act can be construed as if it contained the proviso:

"provided that, notwithstanding that the defender has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years it shall not be competent for the Court to grant decree of divorce unless the pursuer proves that down to the raising of the action he was willing to adhere to the defender."

I do not see any greater difficulty in saying "unless the pursuer proves that down to the raising of the action he was willing to adhere," than in saying, as was held necessary in Macaskill v. Macaskill, "unless the pursuer proves that down to the end of the three years' period he was willing to adhere." If it be said in reply that the latter is implicit in the idea of desertion, then it was not necessary to demand their inclusion as a matter of relevancy in Macaskill v. Macaskill; but, setting that aside, I answer that the words challenged in the proviso used as a test "down to the raising of the action" are also and equally implicit in the meaning of desertion as understood until 29th July 1938. This seems to me to reduce the true question at issue, which is:

"Does the new Act change the meaning of desertion? I have already discussed the matter fully, but let me add in conclusion that the decision in Macaskill v. Macaskill points to the view that the new Act does not change the meaning of desertion. We there demanded that the pursuer should open his mind on the subject of his attitude towards the de facto separation of the married pair during the minimum period referred to in the statute. If that course was justifiable in Macaskill v. Macaskill, it is because of the meaning attached to "

desertion." But according to the pre-1938 law, for the same reason—the connotation of desertion—a pursuer had to open his mind as to his willingness to adhere right down to the threshold of the action. Unless for some reason the connotation of desertion has to be abandoned, the whole of the words in the proviso which is suggested as a test are as justifiable as those necessitated by Macaskill v. Macaskill .There is no reason why the meaning of desertion should be changed unless that course is imperative so as to obtain a sensible reading of the 1938 Act. But the old meaning of desertion, when applied to the new Act, seems to me to result in nothing absurd, but merely to give continuity to the law to be applied. It has to be noticed that the Act of 1938 refrains from defining the words "desertion" or "deserted," and I would therefore infer from that also that the age-long accepted meaning was meant to be continued.

The interpretation I favour continues, as in the past, to give an errant spouse an opportunity to offer resumption of married life even at the eleventh hour; that opportunity may not be resorted to in most cases. But unless the Act presented for our interpretation leaves no alternative but to close that door, it is one which, I think, should be left open.

Something has been said as to the lack of sincerity which would be encouraged by insisting on averments of willingness to adhere after the triennium. I agree that there may be some who, while unwilling to adhere, will not only aver but perjure themselves by swearing to be willing to adhere, when they are not. But many who make the same necessary averment as to state of mind during the triennium will be have in like manner, and no matter how relaxed the law becomes, while stopping short of divorce by consent of parties, such cases will unfortunately continue to happen. But if the law remains as has been settled, then a deserted spouse will in many cases have before his mind something to prompt an endeavour to bring about a resumption of married life.

I do not feel called upon in this opinion to consider whether a pursuer is bound to express willingness to adhere to the defender as at a date subsequent to the commission of adultery by the defender when that is averred against her on record.

On the point submitted for the consideration of the Whole Court, my opinion is that a pursuer must aver willingness to adhere until the divorce proceedings against a deserting spouse.

LORD JAMIESON (read by the Lord President).—The question in this case, stated in its simplest form, is whether a spouse, who has been deserted for three years, obtains on the expiry of that period a vested right to obtain a divorce, enforceable at any time thereafter, although for all or part of the period elapsing between the completion of the three years and the institution of the action to obtain divorce he or she may not have been willing to adhere. Prior to 1938 the law of divorce for desertion in Scotland was based entirely on the Act of 1573, cap. 55. The cumbersome procedure therein provided for was rendered unnecessary by section 11 of the Conjugal Rights (Scotland) Amendment Act, 1861, but that statute, while dispensing with the older forms of procedure, did not alter the principles on which divorce would be granted. The Divorce (Scotland) Act, 1938,has repealed both of these statutes, and the answer to the question raised in the case rests on a construction of section 1 (1) (a)of the Act of 1938. In construing it it is not, in my view, legitimate to look to the earlier decisions so far as these are based on the procedure enacted by the repealed statutes, but in so far as they deal with the essentials of desertion one may properly pay regard to them. The purpose of the repeal of the older statutes was, no doubt, to get rid of obsolete forms of procedure, including the action of adherence, which the 1861 Act had rendered unnecessary, but the new Act, while reducing the statutory period, has not altered the character of desertion. In Mackenzie v. Mackenzie Lord Watson said (at p. 40):

"Decree of divorce under that (the 1573) Act is, in my opinion, nothing else than a penalty for obstinate non-adherence. Accordingly the older statute requires, as the first step towards obtaining the remedy, that the deserted spouse shall raise and obtain decree in an action of adherence. …"

Such a prerequisite, it appears to me, afforded proof that the pursuer was willing, and in a position, to adhere. Similarly, in Watson v. Watson, Lord President Inglis, after dealing with the effect of the 1861 Act on the Act of 1573, said (at p. 739):

"Construing the Act so reformed, it seems clear that to meet its requirements there must be not only an offender against the conjugal obligation and duty of adherence, but also an injured party who does not condone the offence, but, on the contrary, remains faithful to the marriage vows, and desires and requires the offender to return to conjugal cohabitation, not as a statutory solemnity or matter of form, but as a substantive fact."

Further, it was held in Macaskill v. Macaskill that under the new Act willingness to adhere during the statutory period of three years was a necessary prerequisite to obtaining the remedy.

It is essential, therefore, to the constitution of desertion that there should be on the one hand a spouse refusing to adhere and on the other one willing, and in a position, to do so. Must that willingness continue up to the date when proceedings for divorce are instituted? In my view an answer in the negative would lead to results which I cannot think can have been in contemplation of the Legislature. As soon as the injured spouse ceases to be willing to adhere, an essential factor of desertion terminates, and the separation then becomes a separation of consent. Yet if the pursuer is right in his contention, he would be entitled to obtain decree on account of a state of matters which no longer exists, and that would in effect result in the obtaining of divorce by consent. The argument is that the lapse of the minimum statutory period is per se sufficient to confer on the injured spouse the right to obtain divorce at any time thereafter. But it is not suggested that there must not be an exception in the event of resumed cohabitation, and the reason for such an exception appears to me to be that of mutual consent the desertion has been terminated. In my view, it is equally terminated when the essential factors no longer exist. As long as the marriage tie subsists a mutual duty of adherence continues, and it would be no answer to an action of adherence, instituted by a repentant wife after the termination of the statutory period, that her husband had a right, which he had not thought fit to exercise, to obtain a divorce. Failure to implement a decree in such an action, if genuinely prosecuted, would place the husband himself in desertion.

Again, desertion may be brought to an end if one spouse after the three years, but during the subsistence of the marriage, has been unfaithful to the marriage vows and has committed such misconduct as to absolve the other spouse from the duty of adherence. It was such a case that came before the Court in Auld v. Auld, where the argument that a vested right had accrued on the expiry of the statutory period led Lord President Inglis to protest that so to hold would confer an implied licence to commit adultery, a consequence which he described as so extravagant and so startling that in no view could the Court give countenance to it. Yet it is argued that the result of the 1938 Act is to give a right of action to such a person at any time. I would be reluctant so to construe the Act, and I do not think it is necessary to do so. It does not appear to me to be an answer to the apparent absurdity of such a position that the defender might bring a cross-action of divorce on the ground of adultery, or to say, because recrimination does not enter our law of divorce for adultery and a pursuer is not barred from obtaining a dissolution of the marriage, when himself guilty of such misconduct, that it follows that a husband or wife, no longer entitled to demand adherence, may have a similar remedy on the ground of desertion. While adultery and failure to adhere are both offences against the married state, their characteristics are so different that it would be dangerous in considering the question of desertion to rely on any analogy drawn from the law of divorce for adultery. A single act of adultery committed by one spouse leaves a moral taint and entitles the other spouse to a remedy, but before there can be desertion there must, as I have pointed out, be a condition of affairs involving the state of mind and attitude of both spouses, non-adherence by the one and willingness to adhere by the other. As it was put by Lord M'Laren (at p. 747) in Watson v. Watson, "Divorce on the ground of desertion is peculiar to the law of Scotland. It is a remedy given to a spouse who has done his or her duty in the past, and is willing to do it in the future, and against the spouse who has neglected the duty of residence in the family."

I do not construe the new Act as altering the character of desertion or as conferring the remedy of divorce on one who is no longer willing, or in a position, to do his or her duty in the future. The remedy is open only when desertion has been persisted in for a period of not less than three years. In so prescribing the time it seems obvious that the period during which the Legislature contemplated desertion might be persisted in might extend beyond three years. If the intention is that the axe is to fall at the end of three years, and that thereafter an indefeasible right to divorce accrues, the words "not less than" are entirely superfluous. If such were the intention, it would have been sufficient to say "for a period of three years." The introduction of the words "not less than" appears to me to point in the clearest possible way to the necessity of there being persistence in desertion for such period, not being less than the statutory minimum, as has elapsed between the time when the defender "has wilfully and without reasonable cause deserted the pursuer" and the time the pursuer seeks his remedy. If during part of that time the pursuer is no longer willing to adhere, the defender cannot be said to have persisted in desertion.

The injured spouse who delays taking action must therefore remain willing to adhere, and may, until proceedings are taken, be met with a genuine offer to return to cohabitation, but, as presently advised, I do not think that such an offer could be entertained after an action had been raised. Marriage is a contract, although there flow from it results absent in the case of other contracts, and on repudiation by one party it cannot be rescinded by the other at his own hand. But, if one party has by failure to perform the conjugal obligations repudiated the contract, the other is entitled to apply to the Court for the remedy which the law allows, and having done so, I think that an offer of performance would then come too late.

In my opinion, the interlocutor of the Lord Ordinary should be affirmed.

LORD ROBERTSON (read by the Lord President).—The facts giving rise to the question before the Court have already been stated, and I do not resume them.

The relevant provision of the Divorce (Scotland) Act, 1938,enacts:—

"It shall be competent for the Court to grant decree of divorce"

(on the ground) "that the defender has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years."

The contention for the pursuer is that the terms of the statute are explicit, and incapable of any meaning, as regards the period of desertion, other than the unqualified meaning which appears on the face of the terms used. The matter is so plain, according to the argument, that there is no room for any interpretation by the Court. All that the pursuer need do, the argument runs, is to aver that there has been a period of desertion of not less than three years—no matter when it occurred—and then to prove his averment; whereupon he becomes entitled as matter of right to the remedy of divorce.

It appears to me that the statute is open to interpretation. If a husband is deserted for not less than three years by his wife, and if, after the expiry of the three years, he is successful in persuading her to return to him, and the parties resume life together as man and wife, I am of opinion that the three years' period of desertion is no longer a cause of divorce. Yet, if the wife were again to desert the husband (or even while she was still living with him), he would be in a position at any time to raise an action of divorce in which he could make averments which would satisfy all the requirements appearing on the face of the statute. I am of opinion that, in the case figured, the remedy of divorce is not open to the husband—even although at the date of the action he suffers from the wrong done to him by his wife's second desertion, and even although he can aver and prove that at the earlier period she was in desertion of him for not less than three years. If that view is sound, then the statute is open to interpretation along these lines. Some qualification must be allowed, to admit of the application of the common law rule that condonation of a matrimonial offence wipes out the offence as a cause of divorce. If that is so, the question comes to be whether the words of the statute compel the Court, in any case, to grant a so-called remedy (which would not have been available prior to the passing of the statute) where the wrong done is a thing of the past, and is not a continuing wrong—since the one-time deserted spouse no longer desires or is willing to accept the adherence of the other spouse. My opinion is in the negative. It may be on the facts of the case that the one-time deserted spouse is not answerable by a plea of condonation, and it may be also that his claim for divorce cannot technically be met by a plea of mora,taciturnity and acquiescence—but if in fact he has come to be acquiescent in the separation of the spouses, and has so remained, in taciturnity, and so remains acquiescent until, and when, he sues for divorce, then it seems to me that, when he comes into Court, there is no living wrong from which he suffers and for which he can properly crave a remedy. I think that it is not enough that, as matter of history, he can aver himself to be situated in the precise position described in the statute. If he does not currently suffer from the wrong of desertion by his spouse, my opinion is that he has no valid claim for the remedy of divorce for desertion. On this view the three years called for by the statute as a minimum must embrace the three years immediately preceding the raising of the action. I think that it is within the jurisdiction of the Court so to interpret the statute, and that it should be so interpreted.

If a wife has deserted her husband for more than three years and then, before he has taken any action in the matter, repents of her desertion and asks him to take her back, and if, after the expiry of the three years, he has come to acquiesce in the separation of parties and refuses to take her back, then she has a good ground, in my view, for suing him for a decree of adherence. And I am unable to see any good answer to her claim. It was suggested at the debate that he might defend himself by suing her for divorce, in respect of her antecedent desertion—and the de quo in this case is whether he could competently do so. Assuming that he can do so (contrary to my view), it is plain that he is under no obligation to do so—the matter being in his option. If he does not do so, then the marriage will persist—and, I think, the wife must necessarily get her decree of adherence. Decree of adherence therefore passes in favour of the wife. Assuming that the husband refuses to obey it, and then, after more than a further three years, sues the wife for divorce for her antecedent desertion of him, he will be entitled to prevail if the contention of the pursuer is sound—for the antecedent period of three years' desertion would give him a vested right to divorce—at least in the absence of condonation. But in the case figured, the wife also would have good ground for suing the husband for divorce for desertion—and there might then be well-founded cross-actions of divorce for desertion. That would result, in my judgment, in a reduction of the law to absurdity. I do not think that the statute is so rigid in its terms as to compel the Courts to such an absurdity. If it were to be held to do so, it would go far, in my view, towards introducing divorce by consent of parties.

In my judgment, the libel in the present case is not relevant.

LORD STEVENSON (read by Lord Carmont).—In my opinion the interlocutor of the Lord Ordinary should be sustained.

I do not think that the alteration made on the law of divorce on the ground of desertion by the Divorce (Scotland) Act, 1938,dispenses with the necessity of the pursuer testifying that he was willing to adhere to his wife up to the date of the action. This obligation, I think, arises out of the relationship created by the status of marriage and not from the terms of the Act. Marriage exists until dissolved by the Court, and the obligation to adhere persists until then, or until performance is excused for some reason satisfactory to the Court. If on the expiry of three years an erring spouse repents and intimates willingness to resume married life, the injured spouse is, I think, bound to accede to the request. This, in my opinion, is no hardship on an innocent spouse. If he or she desires to terminate the obligations undertaken under the marriage, he or she can raise an action of divorce immediately on the termination of the period of three years.

LORD RUSSELL (read by Lord Carmont).—I concur in the opinion of Lord Fleming.

LORD KEITH (read by Lord Carmont).—In my opinion the pursuer has stated a relevant case. I do not consider that the state of the law with reference to divorce for desertion prior to the passing of the Divorce (Scotland) Act, 1938, falls wholly to be ignored in approaching the question of construction with which the Court is primarily concerned. In construing any statute the Court is entitled to have regard to the state of the law at the time the statute was passed. Prior to the passing of the Act of 1938 it was not, in my opinion, clearly settled whether, on the one hand, a spouse seeking divorce for desertion had to prove that he had been willing to adhere to the defender down to the date when he commenced his action of divorce or, on the other hand, could claim that, on proof of desertion for a period of four years, he had established a right to a decree irrespective of his attitude after the four years had expired. I think that prior to 1861 there was a strong trend of authority in favour of the view that, after all the preliminary requirements of the Act of 1573, cap. 55, or their recognised equivalents, had been followed out and four years of desertion had run, it was too late for the offending spouse to offer to adhere to the effect of cutting off the right of the complaining spouse to obtain a decree of divorce. This was matter of decision where the offer to adhere was made in the course of the proceedings for divorce, but the reasoning on which the Court proceeded would have been equally applicable had the offer to adhere been made prior to the raising of the action. Professor Bell in the fourth edition of his Principles (1839), the last edition published before his death, section 1535, and Sheriff Mackay in his Manual of Practice, (1879) vol. ii, p. 284, both lend support to the view that this was the law at least prior to 1861. They refer to the decision in Murray v. M'Lauchlan as authority for this view. Lord Fraser in his work on Husband and Wife, (1878) vol. ii, p. 1214, also quotes a decision of the old consistorial Court in Sturrock v. Crabb, to the same effect. The relevant passage in Bell's Principles remained unchanged until the publication of the 9th edition (1889). There is no clear decision as to the legal position since 1861, when section 11 of the Conjugal Rights (Scotland) Amendment Act, 1861, rendered compliance with the preliminary procedure prescribed by the Act of 1573, cap. 55, unnecessary. If the view is correct that all the old preliminary procedure was assumed to have taken place only at the moment the action of divorce was served, it would be consistent with the trend of judicial reasoning prior to 1861 to hold that an offer to adhere might competently be made by a deserting spouse down to the date of commencement of the action of divorce. There was, however, another view that four years of desertion was sufficient to give a jus quœsitum to a divorce to a deserted spouse which could not be defeated by an offer to adhere made after the expiry of the four years of desertion. As recently as 1931 Lord Anderson in the case of Gilfillan v. Gilfillan regarded the question as open and appropriate for decision by a larger Court.

Having regard to this uncertainty in the state of the law I would be prepared to make the assumption that the Legislature meant to remove that uncertainty, and to express the new law of divorce for desertion in clear and unambiguous terms. There is no other purpose for which reference to the old statutory law on this subject falls, in my opinion, to be made. The Act of 1938 is not a consolidating Act. It bears to be an Act to amend the law of Scotland with regard to divorce and dissolution of marriage, and reference to its scope shows the Act to be an amendment of both statute and common law. It deals with the same subject-matter, so far as it relates to divorce for desertion, as did the earlier Acts, but uses different language. The whole statutory code of the earlier law of divorce for desertion has now been swept aside, and a new and simplified statutory enactment has been substituted. The result, in my opinion, is the same, so far as the question of statutory construction is concerned, as if divorce for desertion had been introduced into Scotland for the first time.

Reading then the language employed according to its ordinary and grammatical meaning I find it to be perfectly plain and unambiguous as regards the only question now arising for consideration, viz., What is the period of desertion requisite to entitle the Court to grant decree of divorce? There may be some doubt about the scope of the words "without reasonable cause." In some other case these words may require judicial interpretation. There may be a question whether they are to be defined with reference to the existing common law as to conjugal rights and duties and in particular with reference to the grounds necessary for a judicial separation or the defences relevant to an action of adherence. The words, on the other hand, may be thought capable of a wider judicial interpretation. But this question has nothing to do with the question now submitted for the consideration of the Whole Court. As to the period of desertion required, in my opinion only two conditions are necessary. The period must be continuous. The desertion must have persisted for a period of not less than three years. This clearly connotes continuity. Broken periods amounting in cumulo to three years will not do. Secondly, in point of duration three years of desertion is sufficient, and these three years need not immediately precede the date at which the action of divorce is commenced. I can find no warrant in the statute for the views either that the desertion must persist down to the date of the action of divorce, if the action is raised, as in practically all cases it will be, more than three years after the desertion has begun, or that the period of three years must be reckoned backwards from the date of commencement of the action. No such construction of the enactment can, in my opinion, be based upon the use of the words "not less than." These words serve the perfectly good grammatical purpose of prescribing a minimum period of desertion without which divorce cannot be granted. It may be observed that the English Act, the Matrimonial Causes Act, 1937, allows divorce where desertion has taken place without cause "for a period of at least three years immediately preceding the presentation of the petition." I should not infer from the use of the words "at least" that there may be cases where more than three years' desertion must be established before decree can be granted, and, so far as I am aware, three years' desertion is regarded by the English Courts as sufficient in all cases. It makes no difference, in my opinion, that the words are used in the English Act with reference to a terminus ad quem and in the Scottish Act with reference to a terminus a quo. A pursuer may of course as part of his proof prove desertion for a longer period than three years, and the conduct of parties after the expiry of the three years may sometimes have an important bearing on the question of their attitude and state of mind at the commencement of, or during the running of, the three years of desertion. But as a relevant ground of action it is sufficient, in my opinion, for the pursuer to aver that the defender has been in desertion at any time prior to the commencement of the action for a continuous period of three years.

If the statute is thus clear in its terms, as I think it is, the results of its application in varying circumstances it is not hujus loci to consider. It is not permissible to avoid the clear meaning of a statute because of anticipated difficulties or inconveniences in its application. Some manifest repugnancy or inconsistency within the statute itself must be shown before a Court is entitled to depart from the plain meaning of the words used. But I am far from agreeing that to construe the statute in the sense indicated will lead to absurd or ridiculous consequences. A person is not bound to divorce a deserting spouse. Any defence which may amount to a remissio injuriœ is, so far as I can see, still open. There is not a word in the new Act about condonation, but at the moment I see no reason to suppose that the defence of condonation may not be pleaded in an action of divorce based on cruelty, sodomy, or desertion. Further, condonation is not confined to resumption of intercourse or cohabitation. There may be other circumstances that would found a defence of acquiescence sufficient to bar a complaining spouse from the remedy of divorce— Johnstone v. Johnstone . If these and other defences are still open, an explanation may here be found for the use of the word "competent" in the enacting words in section 1 of the Act, "it shall be competent for the Court to grant decree of divorce." The Court will grant decree only if the pursuer establishes his ground of action and no relevant defence has been substantiated. I do not wish, however, to commit myself as to what defences may or may not be open in an action based upon one or other of the new statutory grounds of divorce. Nor do I wish to be taken as assenting to the view that an act of adultery committed by a deserted spouse within the three year period of desertion is necessarily a bar under the new law to his obtaining a decree of divorce against the deserting spouse.

LORD PATRICK (read by Lord Moncrieff).—Previous to the passing of the Divorce (Scotland) Act, 1938, the source of our law permitting divorce for desertion was the statute 1573, cap. 55, as affected by the Conjugal Rights (Scotland) Amendment Act, 1861.

In Watson v. Watson Lord President Inglis said that the best test of the effect of the Conjugal Rights (Scotland) Amendment Act on the earlier statute was to strike out of the earlier all that the later had abrogated as unnecessary, and judge of what remained as if the excised part had never been there, or as if the earlier statute were re-enacted without the excised part.

After 1861 the Act of 1573 then stood in essentials as follows:—

"That qhatsumeuer persoun … husband or wife divertis frae utheris companie without ane ressonabill caus … and remanis in thair malicious obstinacie be the space of four zeiris, and in the meanetime refusis all preuie admonitiounis … for dew adherence,"

that then "… the malicious and obstinat defectioun of the partie offendar to be ane sufficient caus of divorse. …"

The Act of 1573 is now repealed, and is replaced by the Act of 1938, and the relevant words of that Act are:—

"It shall be competent for the Court to grant decree of divorce on any of the following grounds, that is to say, that the defender (a) has wilfully and without reasonable cause deserted the pursuer and persisted in such desertion for a period of not less than three years."

If the two Acts are compared there is no difference in substance save that there is no longer the necessity for privy admonitions, and that the period of time is reduced from four to not less than three years. The separation is now called "desertion" instead of "diversion" or "defection," as in the older Act, but from time immemorial our institutional writers, our style books, the Act of 1861, and our text-books witness that divorce for "diversion" or "defection" has been known solely as divorce for "desertion." The desertion must be "without reasonable cause" under the later Act as under the former.

In these circumstances, I see that the Legislature has told me by express injunction that I am not longer to require privy admonitions as a condition of granting divorce for desertion, and that desertion for not less than three years now entitles me to grant divorce, but I see no injunction that I am to make any other alteration in the administration of the law of Scotland relating to divorce for desertion.

It is said that such an alteration is the necessary consequence of the words used in the statute of 1938, and in particular of the express repeal of the Act of 1573 and of section 11 of the Conjugal Rights (Scotland) Amendment Act. It is said we must approach the construction of the Act of 1938 as if there was not a long course of decision and practice whereby words like "desertion without reasonable cause" had acquired special connotations differing widely from the natural significance. It is not in general legitimate to interpret a later statute by reference to an earlier statute which has been repealed, or by reference to decision and practice under that earlier statute. The matter is quite otherwise when words are used which have acquired in the practice of the law a special connotation differing from the ordinary meaning, and when it is apparent that in the later statute such words have not been used in the ordinary sense. No course is then open but to give to such words in the later statute the special meaning which the practice of the law has attached to them. It is plain to me that the framers of the statute of 1938 did not use the words "desert without reasonable cause" in the ordinary sense. If these words were used in the ordinary sense, their construction would be cast loose from, for example, the limits of "reasonable cause" which decisions of the Court under the Act of 1573 had imposed. The result would be that Parliament has left the judicature free to permit desertion of one spouse by the other on grounds such as incompatibility of temperament without visiting desertion so motived with the penalty of divorce. There is not a hint in the statute of 1938 of any such intention, and the result is so startling that I am compelled to the conclusion that the words "desert without reasonable cause" were used by the framers of the 1938 Act in the technical sense which they had long acquired by virtue of decisions under the older Act and with the very intention of avoiding the startling innovations in the Scots law of divorce which might otherwise have resulted.

Accordingly this statute of 1938 does not fall to be construed wholly in its natural sense. It at least uses the words "desert without reasonable cause" to some extent in the technical sense which a Scots lawyer prior to 1938 would have attributed to them. If that be so, I can find nothing in the statute which would permit me to say that the words "desert without reasonable cause" now possess some of their former technical attributes, but not others. Nothing but caprice could dictate the choice of some sense in part technical and in part natural.

Since 1861 desertion without reasonable cause to be of any avail as entitling to divorce had two attributes, (first) that it had persisted until the date when the action for divorce was brought, and (second), as a corollary of the first, that the pursuer had until that date desired that the defender should adhere.

In Gilfillan v. Gilfillan Lord Anderson expressed the opinion that this was an open question. There are other judicial dicta dealing with different subject-matter which may be read as supporting Lord Anderson's view. The fact is that no instance has been cited in which during the last eighty years a Scots Court has pronounced a decree of divorce for a desertion which did not possess these two attributes. Lord President Inglis found the reason for this quality of desertion as a relevant ground of divorce in the policy of the Church of the Reformation, as evidenced by the express requirements of the Act of 1573. In 1861 these express requirements were swept away by the Legislature. Nevertheless, after 1861 the only reported decisions on this point and the constant practice of judges witness that in the divorce law of Scotland desertion as a relevant ground of divorce meant desertion continuing to the date when the action for divorce was raised and throughout which the pursuer was willing to adhere. Thousands of decisions by many Lords Ordinary have been pronounced on this view of the meaning of desertion in the law of Scotland, for without averments of facts to show that the desertion possessed these attributes the libels would not have been passed as relevant. There is no record of any contrary decision.

In my opinion, that is the sense which the word "desert" in the statute of 1938 still possesses.

I think this explains the provision of the statute that the period of desertion shall be not less than three years. To regard these words as merely providing a minimum period is to my mind entirely unsatisfactory. The Legislature cannot have thought that, if it did not use the words "not less than," there was a danger of the Courts granting divorce in respect of a period of, e.g., two years' desertion. The words were therefore, in my opinion, used to provide for the common case where desertion lasts for the statutory period and continues till action is brought, often after a long period of time.

I would affirm the interlocutor of the Lord Ordinary.