Scottish Court of Session Decisions

On 18th January 1898 Mrs Ann Bennet or Hunter raised an action of divorce against her husband on the ground of desertion.

The pursuer averred on record, and it was established at the proof, that she was married to her husband in 1886, that about March 1891 he had left her and gone to live with another woman, and that, with the exception of one occasion when she went to ask him for money, which he refused to give her, she had never seen him since. The only information she had received about him was that on 20th September 1894 he was released from Durham jail after undergoing a period of ten months' imprisonment with hard labour for embezzlement. The identity of the defender and the prisoner so released was instructed by a letter from the governor of the jail.

The Lord Ordinary having suggested a doubt whether desertion for the statutory period of four years had been proved, the pursuer argued:—It must be admitted that the period of imprisonment fell to be deducted from the time during which the husband had been in desertion, for there could be no intention to desert on the part of a spouse in confinement—Fraser's H. & W. 1213; Young v. Young, November 16, 1882, 10 R. 184. But Young's case was distinguishable from the present, for there in order to make up the four years the term of imprisonment had to be counted in. Here, though four years had not elapsed between the beginning of the desertion and the beginning of the imprisonment, nor yet between the defenders discharge from prison and the raising of the action, these two intervals of time added together made up a total of more than four years. The

Page: 660↓

Act 1573, cap. 55, said nothing about the four years being continuous. If the pursuer's contention were unsound, imprisonment even for a day would interrupt the running of the four years. A new period would have to begin to run with the spouse's release, only perhaps to be broken in turn by a similar term of imprisonment for some trifling offence. There could surely be no greater proof of the animus to desert than the fact that the prisoner on being released did not return to his wife. Even in the case of the long prescription, where possession for forty years “continually and together” was required, it was never proposed to deal with the term of a party's compulsory absence, and consequent inability to act, through banishment or foreign service except by way of deduction— Duke of Lauderdale v. Earl of Tweeddale, M. 11,193; Whitefoord v. Earl of Kilmarnock, M. 11,198; Graham v. Watt, July 15, 1843, 5 D. 1368.