United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

Page: 687↓

(1751) 6 Paton 687

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

No. 116

[Elchies, vol. ii., p. 193; Fraser's Domestic Relations, vol. I., p. 456.]

George Montgomery-Moir, Esq. of Leckie, Appellant

v.

Anne, his wife, and Others, Respondents

Page: 688↓

House of Lords, 24th April 1751.

Subject_Separation and Aliment — Cruelty. —

The respondent raised an action of separation and aliment against her husband, the appellant, on the ground of cruelty and a calumny published by him against her honour and reputation. It was objected, that there was no relevant statement to support the action. The Commissaries allowed a proof of the libel. On advocation the Court refused the bill, but remitted, with instructions to the Commissaries, to allow a proof only of such facts as appeared material, and of the publication alleged. Proof of the calumnies on the part of the husband was allowed. The Commissaries found facts and circumstances proved relevant to infer separation. On bill of advocation the Court refused the bill, and remitted to the Commissaries. In the House of Lords reversed, and held the evidence not sufficient to support the conclusions for separation and aliment.

An action of separation and aliment was brought before the Commissaries by the respondent, Mrs Montgoinery-Moir, against her husband, the appellant, on the ground of cruelty. Her summons set forth various articles, but set forth the “following: That the defendant, contrary to the duty of the relation betwixt them, had attacked the pursuer, his wife, most calumniously, and injuriously in her honour and reputation, and had behaved to her in such manner, that she could not live or abide with him in safety; that he wrote a letter to Sir Walter Montgomery, her uncle, in which he loaded her with the grossest calumnies, without any manner of foundation in truth, and endeavoured, all that in him lay, to wound her reputation, in a manner hitherto not to be paralleled betwixt husband and wife; and, therefore, concluding for a separation a mensa et thoro, and for separate aliment.”

Her statements assumed, afterwards, the following four heads, 1st, That from the time of their marriage to that of their separation, the appellant had lived with the respondent in a course of discontent and passion, which broke out into several contumelies and abuses, and at last had proceeded so far as to threaten to pistol her. 2d, That he had agreed to a separation from the respondent, and with that view had taken from her the marriage ring, and some other trinkets, which he had given her before marriage. 3d, That he had grossly abused her character in a letter to her uncle, Sir Walter Montgomery; and 4th, That he had procured and

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raised letters of inhibition against her, upon false and calumnious allegations.

The appellant's defence, after stating in full detail the facts of their marriage, and how, in a few weeks thereafter, she got uneasy and discontented in her mind, alleging to her friends doubts of his manhood—that he was defective, and that she could never have children by him, all of which, had they been true, might have warranted a divorce against him, was confined to the statements of the respondent, which he denied. 1st, As to the menace to pistol the respondent, he exhibited a letter from Sir Walter Montgomery, her uncle, by which it appeared, that both he and his niece understood that threat to be directed only against her informers, the authors of the scandalous calumnies against the appellant's sister. 2d, He denied that he had agreed to a separation, but that the respondent having, in a great passion, thrown away the wedding-ring, and other trinkets, the appellant took them up. 3d, That the appellant had tried every method of lenity to reclaim his wife, and, out of tendernessfor her reputation, concealed the genuine source of their differences, until, by her obstinacy, he thought it became his duty to communicate the matter to her uncle, Sir Walter, hoping that by his interposition and advice, the respondent might still have been brought to a proper temper. This letter was written to one who stood in the relation of a parent to his wife; and if she or her uncle afterwards published this letter, they had themselves only to blame. 4th, The respondent refused to come home to his house. He used every effort to induce her to come, stating, that she would be affectionately received, and would have the entire and absolute control of his house. He even wrote her uncle, with whom she lived, to second his efforts to induce her to come home. And all these failing, he was obliged to resort to inhibition, but it contained nothing calumnious, but only the usual form of words.

Aug. 15, 1748.

The Commissaries pronounced this interlocutor:

“Having considered the libel, missive letters in process, defences, answers, replies, and duplies, they, before answer, ordain the pursuer ( i.e. respondent) to give in a special condesendence of such facts and circumstances as she desires to lead a proof of, and to condescend upon the witnesses by whom she is to prove the same; and allow the defender (appellant) to give in a special condescendence of such facts as he desires to prove, and of the witnesses by whom he is to prove the same.”

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In obedience to this interlocutor, a condescendence was given in for the respondent, which varied very little from the libel; and the appellant thereupon objected, that there were no facts stated relevant to infer the conclusions of her libel, and, therefore, that the same ought not to be admitted to proof.

Nov. 18,1748.

But the Commissaries, of this date, pronounced this interlocutor:

“Having considered the libel with the condescendence for the pursuer of the 2d November, and whole debate thereanent. Before answer, allow the pursuer a proof of the several facts and circumstances contained in the libel and condescendence; and allow the defender a proof of all the facts and circumstances tending to his vindication; and allow each party a conjunct proof anent the premises.”

The appellant brought a bill of advocation to the Court of Session against this interlocutor.

Jan, 13, 1749.

The Lord Ordinary, after advising with the Court, pronounced this interlocutor:

“Refuses the bill of advocation, but remits the cause to the Commissaries, with this instruction, that they allow a proof of such articles of the libel, only as appears to them to be material: and particularly, that they allow a proof of all the facts and circumstances, that may tend to show that Boquhaple's letter was published with the defender's knowledge and consent, or by his advice and information of the facts, or any of them therein contained; or that the defender, by letters, conversation, or otherwise, published the facts contained in the said letter, or any of them: and further, that the pursuer sustained any injuries or maltreatments from the defender while they lived together.”

Jan. 20, 1749.

Feb. 3, 1749.

On the case coming back to the Commissaries, they pronounced an interlocutor, allowing a proof in terms of the above remit. On petition from the appellant they pronounced this interlocutor:

“Having reconsidered their interlocutor of 20th January last they adhere to the said interlocutor, and further, allow the pursuer to prove that the calumnies contained in the defender's letter to Sir Walter Montgomery of the 1st July 1745, were uttered, spoke, or published by the defender (against the pursuer), in conversation or otherwise, or by others, by his knowledge and consent, or by his advice, and information of the facts therein contained or any of them. And allow the defender a proof of all facts and circumstances tending to his vindication.”

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Jan. 9, 1750.

The proof was gone into. On that proof, the appellant contended, that the respondent had failed to prove either cruel conduct by him towards her, or maltreatment of any kind, not even that he was of a bad temper, though the witnesses were all composed of her uncle's servants and dependents, except one solitary instance. The Commissaries were pleased to find, “Facts, circumstances, and qualifications proven relevant to infer separation, and aliment to the pursuer, and the expenses of suit, but before modification of the aliment, allowed the pursuer to give a condescendence of the defender's estate.”

June 8, 1750.

Dec. 7, 1750.

The appellant brought a bill of advocation to the Lords of Session. The Lord Ordinary pronounced this interlocutor:

“After advising with the Lords, refuses the said bill, but remits the cause to the Commissaries, with this instruction, to consider the proof, and to find that there is no sufficient evidence adduced to support the conclusion of separation and aliment, in the summons at the pursuer's instance against the defender, and to proceed in the cause accordingly.”

On reclaiming petition to the Court, the Court, by interlocutor, of this date, “refused the defender's bill of advocation simpliciter, and remitted, and hereby remit the cause to the Commissaries.”

This last interlocutor virtually altered the one immediately preceding.

The appellant, therefore, brought his appeal to the House of Lords against the interlocutor of 9th January and 7th December 1750.

After hearing counsel,

It was ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled, That the said interlocutors of the 9th January 1750 and 7th December 1750 be, and the same are, hereby reversed. And it is hereby further ordered and adjudged, that the said interlocutor of the 8th of June 1750 be, and the same is, hereby affirmed.

Counsel: For the Appellant, A. Hume Campbell, Geo. Lee, Alex. Lockhart, Geo. Hay.
For the Respondent, Wm. Grant, W. Murray.

Note.—Lord Elchies has this note on the case: “I was against the separation; yet, in further considering the case, I altered my

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opinion. I thought—that the lady having on her husband's information, been represented to the world as a monster of nature for lasciviousness, and a reproach to her sex, and which scandal has, by the husband and his counsel, in all their writings and pleadings, been maintained to be true, though they said it was impossible to prove them—I thought it impossible that thereafter they could live together as husband and wife, that he could wish to take her again to his bosom, or that she could live with the man who, in effect, declares that she is unworthy of living, and who had for ever debarred her from the society of every modest woman who would believe him. That though his justification from the imputation of impotency, wherewith she is said to have reproached him to one or two of her confidants, had made excusable in him to inform his nearest friend of her insatiable appetite, yet he must, at the same time, have resolved to separate from her, because they could not, consistently with the honour of either of them, thereafter live together; and whenever matters came to that pass, the Court could not refuse a separation, and he was to aliment her so long as she was his wife; at the same time, I saw no necessity for such vindication, nor evidence of the truth of what he reproached her with, and far less saw I necessity of propagating that scandal to so many, or maintaining it in courts of justice. Kilkerran also changed his opinion; and, upon the question, it carried to alter the last interlocutor, and to refuse the bill of advocation simpliciter. Pro—Lords Minto, Drummore, Kilkerran, Justice-Clerk, Murkle, Shewalton, et me. Contra—Lords Dun, Haining, and President; but Leven was non liquet, and Milton in the Outer House.”— Vide Lord Elchies' Notes, vol. ii., p. 193.

1751