Scottish Court of Session Decisions

On 22nd June 1899 Mrs Isabella Campbell or Hunter, presently residing at No. 97 Albert Street, Edinburgh, wife of William Hunter, presently residing at No. 3 Lindsay's Land, Clydebank, near Glasgow, raised an action of divorce for desertion against her husband.

The pursuer averred—“1. The pursuer was married to the defender at St James' Episcopal Church, Leith, by the Reverend Canon Jackson, on 3rd April 1883. One child was born of the marriage, viz., Isabella, born 20th day of March 1884. A certificate of the marriage is herewith produced. 2. The parties took up house first at Leith, afterwards at Renfrew, and thereafter at Yoker, near Glasgow. During the time parties lived together the defender wrought very seldom, with the result that a sum of money which the pursuer had saved prior to her marriage was expended in keeping up the household. When that sum of money was spent the pursuer had herself to work in Singers' Machine Factory to earn a livelihood for herself, husband, and daughter. 3. In or about the month of May 1886 the defender procured a situation in Winnipeg, Canada, to which country he accordingly then proceeded, the expenses of his journey being defrayed by his friends. For about two years after he left Scotland the defender corresponded with the pursuer and sent her small sums of money from time to time, amounting in all to £20. On the lapse of these two years, however, the defender ceased writing altogether. The last remittance defender sent pursuer was for a small sum, and was sent in the month of June 1888. As prior to said remittance the pursuer had not heard from the defender for some time, and as said remittance was sent pursuer by a third party (Mr M'Dougal) on the defender's instructions, and the defender sent no letter with it at all, the pursuer wrote Mr M'Dougal acknowledging receipt of the money, and at the same time asked for defender's address. In reply Mr M'Dougal said that the defender had left his district, but stated that he believed he was then working to the Globe Iron Works Company, Cleveland, Ohio. The pursuer accordingly wrote to the defender at said works, but got no reply, and her letter was not returned. Since said last-mentioned date (viz., June 1888) the defender has neither corresponded with the pursuer nor let her know of his whereabouts, nor paid her any money for her support. Nor since said date has the pursuer seen the defender. The defender has all along since said date concealed his whereabouts from the pursuer. 4. Since said month of June 1888 the pursuer made every possible inquiry to ascertain her husband's address, but without any success. 5. In or about the summer of 1894 the pursuer was informed by one Archibald Campbell, a rivetter or boilermaker, presently residing, the pursuer believes, in Barrow-in-Furness, but who belongs to Clydebank, and who had just then returned from America, that it was generally reported and believed that the defender had been frozen to death on a roadside in the vicinity of Duluth, and that he was convinced that it was so. The said belief was shared in by defender's relatives in this country. The pursuer thereupon wrote to the said Mr M'Dougal, asking if he knew anything of the defender, or his whereabouts, but he replied that he did not. Pursuer also caused a notice to be inserted in the ‘missing relatives’ column of the Glasgow Weekly Mail, a paper which defender was in the habit of reading, but got no reply thereto. The pursuer was thereafter convinced that said report of defender's death was true, and she accordingly believed it to be true. 6. Thereafter, in or about the end of 1894, the pursuer received an offer of marriage from one Walter Campbell, her cousin—an offer that was made and received in the bona fide belief of the truth of the report of the defender's death. On said offer of marriage being made, the pursuer consulted the defender's relatives in Scotland, who advised her to get married, as they too were convinced that the defender was dead. 7. Accordingly, on the 23rd day of December 1894 the pursuer was married to the said Walter Campbell, by the Rev. Mr Gibson of the Wesleyan Methodist Church, Leith. She went through the form of marriage with the said Walter Campbell in the bona fide belief and conviction that the defender was dead. Thereafter the pursuer and the said Walter Campbell cohabited together until the month of September 1898, as after mentioned. 8. In or about the month of September 1898 the pursuer's said daughter Isabella went on a visit to relatives at Clydebank. In the course of her visit there she was introduced to a man who was stated to be the defender. On her return home she at once informed the pursuer thereof, who immediately, on hearing the news, ceased to cohabit with the said Walter Campbell. Inquiries were afterwards made, with the result that it was ascertained that the man to whom the pursuer's daughter was introduced was none other than the defender, and that he had just returned from America six months previously. 9. The pursuer thereafter, in order to keep matters right, informed the police of her marriage with Walter Campbell. The police reported the matter to the Crown authorities, who finally intimated that no proceedings were to be taken, as

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they were thoroughly satisfied that she had acted throughout in good faith. The pursuer has since received a message from the defender that he will not return to her again. 10. The defender has thus been since at least the month of June 1888 guilty of wilful and malicious non-adherence to and desertion of the pursuer, since which date the defender has never corresponded with her or informed her of his whereabouts or address, or sent her any money for her support. The present action of divorce has therefore been rendered necessary.”

The pursuer pleaded—“(1) The defender having been guilty of wilful and malicious non-adherence to and desertion of the pursuer, his wife, for the space of four years, the pursuer is entitled to decree of divorce. (2) The pursuer having gone through the marriage ceremony with the said Walter Campbell in the bona fide belief and conviction that the defender was dead, and she having ceased to cohabit with him on hearing the defender was in life, said marriage ceremony is no bar to the present action.”

No appearance was entered for defender.

On 18th July 1899 the Lord Ordinary ( Pearson) dismissed the action.

Opinion.—“This is an undefended action of divorce at the instance of a wife, on the ground of her husband's desertion.

The parties were married sixteen years ago, in April 1883, and one child was born of the marriage in May 1884. They lived together, first at Leith, and afterwards in the neighbourhood of Glasgow.

The pursuer avers that her husband was seldom at work, and that she herself supported the family; that in May 1886 her husband obtained a situation in Canada, and for about two years thereafter he corresponded with her and sent her small sums of money amounting in all to £20, the last remittance being sent through a third party (Mr M'Dougal) in June 1888. She thereupon wrote to Mr M'Dougal, asking for her husband's address, and was furnished with an address in the United States where he was believed to be working. The pursuer wrote to him at this address, but the letter was neither answered nor returned, and the pursuer has since made further inquiries which have been fruitless. She further avers—‘The defender has all along since said date concealed his whereabouts from the pursuer.’ It now turns out that the defender returned from America a little more than a year ago, and is living at Clydebank, where the summons has been personally served upon him; and the pursuer avers that she has received a message from him that he will not return to her again.

So far, therefore, the pursuer presents a case of wilful and malicious non-adherence on the part of her husband, which would have entitled her to divorce on that ground at any time after the lapse of four years from June 1888, that is, after June 1892, assuming that the husband had not expressed his willingness to adhere.

The pursuer, however, with creditable frankness, states that she went through the form of marriage in December 1894 with her cousin, and they have since cohabited until September 1898, when she ceased cohabitation immediately on learning that her husband was alive. The pursuer avers that this second connection, which began in the form of a regular marriage, was entered upon by both parties in the bona fide belief that her husband was dead, and after consulting with his relatives, who advised her to get married. She avers circumstances which, if proved, will (I assume) instruct her good faith in the matter; and having laid the facts before the Crown authorities, she has been informed that they adopt that view, and that no proceedings will be taken against her.

Now, where a married person sues for divorce on the ground of desertion, it is a good answer that the pursuer has committed adultery, the reason being that adultery furnishes a good ground for non-adherence, and so cuts away the basis of the statutory action. See Auld (1884, 12 R. 36), where the rule was applied, although there was a period of six years' desertion before the adultery was committed.

The question is thus raised whether the pursuer's second connection, although begun and ended in good faith, is to be regarded for the purposes of this case as being an adulterous connection.

That it is to be so regarded as giving the husband a right to sue for divorce is laid down in distinct terms by Erskine (Instit. i. 6, 44)—‘If a woman,’ he says, shall contract with a second husband, on false intelligence that the first husband had died abroad, that first hath it in his power, upon his return, either to take his wife home to his family, or to sue for a divorce against her on the head of adultery, for bigamy ought, as to this question, to be counted adultery; but the woman, if she had probable grounds to believe her husband dead, is not subjected to any criminal trial upon an accusation either of bigamy or of adultery.’

If this be the law, then the circumstances of this case would warrant an action of divorce on the part of the husband. If so, I see no escape from the conclusion that they furnish a good answer to the wife's action for divorce for desertion.

The doctrine laid down by Erskine has indeed been challenged by the high authority of Lord Eraser. In the first edition of his work (1 Pers. & Dom. Relations, 657) he stated explicitly that the doctrine must be held as overruled by decisions, and he referred to the cases Thomson v. Bullock (1836, 12 Octavo Faculty 216), and Macdonald (1842, 1 Broun Just. 238). In his later edition, however, his Lordship modifies this opinion, referring to Macdonald's case as supporting Erskine so far as it goes (namely, as to the criminal charges), and quoting the case of Thomson as one in which Lord Moncreiff adopted the rule of the canon law which ordered the husband to take back his wife. But Thomson's case when examined does not really run counter to the doctrine laid down by Erskine. It was an action of divorce by the returning

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husband, grounded on the second marriage of the deserted wife. But it plainly appears from the reports, and specially from the fuller report in the ‘Jurist’ (9 Scot. Jur. 131), that the wife's defence (which with some hesitation the Court sustained as relevant, and remitted to probation) was not founded merely upon bona fides, but upon the averment that ‘the pursuer had led her, by circulation of reports, to believe he was dead; and so having entrapped her into the commission of the adultery, he could not found upon it as a ground of divorce.’ This plainly amounted to a plea in bar of the husband's action—a plea which is not raised by the mere averment that the wife contracted the second union in bona fide. In the present case there is no averment that the husband was the author of, or was in any way responsible for the rumours of his death upon which the wife relied. All that is said is, that ‘the defender has all along concealed his whereabouts from the pursuer,’ which in the absence of specification I take to mean no more than this—that he has refrained from communicating his address. At the highest this would only entitle the wife to say that she did not know whether he was alive or not. Her belief in his death rested upon rumours which are not said to be traceable to the husband.

Accordingly, I hold that the case of Thomson does not run counter to the doctrine laid down by Erskine; and I am not prepared to hold that that doctrine does not accurately express the law of Scotland on the matter. I find nothing to the contrary in the case of Donald ( 1863, 1 Macph. 741), in which this question was much canvassed, and to which Erskine's opinion was referred to without dissent.

In my opinion, therefore, the pursuer's own statement discloses a good answer to her claim, and the action must be dismissed. I would add that the hardship is not so great as it appears at first sight to be. Her second marriage was contracted in December 1894. For two years and a-half before that she had, on her own statement been in a position to obtain a divorce from her husband on the ground of desertion. It would have been no answer to such an action to suggest that he was dead, for the circumstances averred by the pursuer on that head, though they may have been sufficient to put her in good faith, were plainly inadequate to displace the legal presumption that her husband was still living. She was therefore entitled to avail herself of the remedy which our law allows if she desired to be free to marry again. Yet her status as a married woman remained unaltered, although she had it in her power to bring it to an end. Whatever sympathy one may feel in the individual case, I think it would be of the worst example to give any encouragement to such laxity. By pretermitting the step which would at once have legalised her position, she must be held to have taken her chance of her husband turning up; and the chance has gone against her.”

The pursuer reclaimed, and argued—She had a good ground for divorce against her husband unless it was held that she was barred by her marriage with Campbell from insisting on it. The question therefore depended upon whether or not her cohabitation with Campbell was adultery. Guilty intention was required in order to constitute an adulterous connection, and there was no such intention here. The pursuer when she went through the ceremony of marriage with Campbell was under the bona fide impression that her first husband was dead, and this impression had been created by the action of the husband. Her marriage with Campbell was therefore no bar to her present action—Fraser on Husband and Wife, 2nd ed., ii. 1143; Thomson v. Bullock, December 9, 1836, 12 Oct. Fac. 216. In the cases of Donald v. Donald, March 30, 1863, 1 Macph. 741, and Auld v. Auld, October 31, 1884, 12 R. 36, there had been no second marriage in bona fide, but immoral cohabitation with another man. These cases were therefore not adverse to the pursuer's contention, but supported it by contrast.

At advising—