Scottish Court of Session Decisions

This was an action of divorce at the instance of a husband. The pursuer, William Hatt M'Intosh, a valet, was married to the defender on 29th December 1876. At the time he was a waiter, and she was a domestic servant. They cohabited as man and wife at various places thereafter, the pursuer being, however, a good deal away from his wife at intervals in the course of his duty in his various engagements. One child was born of the marriage. It appeared from the evidence that in October 1881 pursuer obtained a situation as valet to a gentleman in Stirling, and left his wife and child in a house which he had taken in Roslin Street, Edinburgh. The house consisted of a bedroom and kitchen. Before leaving the pursuer arranged that his wife should take as lodger a clerk who was an old friend of his. This lodger occupied the bedroom. There was also living in the house a servant girl out of place, called Mary Renton, who had been invited by the pursuer. The pursuer alleged in his evidence that in May or June 1879, while he was a waiter in a hotel in North Berwick, and defender was staying in Edinburgh, he became aware that she was corresponding with the co-defender John Blair, who was a stevedore in Granton. Blair was acquainted with both the pursuer and defender, and had been introduced to the latter by the former. On 18th November 1881, the pursuer, who was then in his situation in Stirling, paid a visit to Edinburgh. What he saw of his wife on that occasion aroused his suspicions as to her fidelity. In consequence of this he asked the girl Mary Renton to come to see him in Stirling, as he wished to speak with her, which she accordingly did. He paid her expenses. According to the pursuer, she then told him that his wife had been unfaithful. He arranged to correspond with her on her return, she to let him know “if his wife was still carrying on the way she had been doing.” After her return he wrote once to her, and received a reply saying that Blair had been twice staying in the house over night. He also received a letter from White, the lodger, saying he had heard a man in the house late at night. The letters were not produced. In her evidence, Mary Renton admitted the visit to Stirling, but said it was on her own affairs, and had nothing to do with pursuer or his wife, the former of whom she met there merely by chance, and that she paid her own expenses. She admitted writing to pursuer after her return. The pursuer was again in Edinburgh in the beginning of February “to see if he could find anything out of place.” He did not see his wife on that occasion, and found nothing further to rouse his suspicions. His own account of subsequent events was as follows:—He came to Edinburgh again on the 18th February with an acquaintance. They saw the defender go into his house with the co-defender Blair. They went into a neighbour's house from which they could see into the lighted windows of pursuer's house, and they saw the co-defender there. After waiting in the neighbourhood for several hours, they broke into the house and found the defender and co-defender both up, but undressed, in the bedroom of the lodger, who was from home at the time. This account was corroborated by the neighbour referred to, as well as by a policeman, whose aid they had asked, and by Mary Renton.

The defence was a denial of the adultery, and (2) separatim, lenociniuM. The account of the events of that evening given by the defender and co-defender was that the co-defender had met the defender on her way home on the evening in question after he had missed a train to Granton, and when he was much intoxicated; that he having fallen in the mud, she asked him to come into her house close by, where she washed the mud off his clothes; that thereafter she had left him sitting sleeping on a chair in one room while she went to bed in the other; that he had gone to bed in the room where he was, and had awakened and called for a drink, which defender, who had been aroused by the call, was just about to bring him when her husband burst into the house.

Page: 118↓

The pursuer concluded for damages against the co-defender.

The Lord Ordinary granted decree of divorce, and decerned for £50 in name of damages against the co-defender, with expenses.

The defender reclaimed, and argued that the adultery was not proved, and, even if it was, the conduct of the pursuer amounted to lenociniuM. It showed a wish that his wife might commit adultery that he might divorce her. Divorce was a remedy to the injured party. Volenti non fit injuria.

Authority— Marshall v. Marshall, May 20, 1881, 8 R. 702.

Pursuer's counsel was not called upon.

No appearance was made for the co-defender in the Inner House.

At advising—