Paterson v. Paterson. on the 6th of April, 1844, and it concluded by praying for a sentence of divorce a mensâ et thoro, with a suitable allowance. The defender pleaded "that this was an untenable action," and in his defence alleged that, "as to occupying separate apartments, this is a matter with which the court cannot directly or indirectly interfere." He positively denied several of the statements contained in the pursuer's summons, and then insisted that the action was irrelevant, "for there is no allegation of personal violence either used or so much as threatened." The record having been closed, the case came on before Lord Cunninghame, as lord ordinary, and on the 25th of June, 1845, his lordship pronounced a decree dismissing the action. In the "note" appended to the judgment, Lord Cunninghame referred to the English authorities as collected in Burn's Ecclesiastical Law, by Phillimore, vol. ii. p. 503, and to the Scotch cases noticed by Mr. Fergusson in his book on Consistorial Law, as showing decisively that such an action was not maintainable, and he added, "If this point had occurred now for the first time, or if it were competent for a single judge to question so many high authorities as are arrayed in favor of extreme marital rights, the lord ordinary would have greatly doubted the justice, and even the policy, of permitting any husband to wound and outrage the feelings of his wife by every species of insult short of personal violence, and to persevere in this conduct for a continued tract of time (it may be for a lifetime, on the defender's plea) without redress;" but he considered himself bound by the authorities, and looked on the question "as no longer open for discussion." A reclaiming note against this interlocutor was presented by the the pursuer to the lords of the first division, who, on the 13th of January, 1846, recalled the lord ordinary's interlocutor, and ordered the pursuer to give in a special condescendence of facts. This was done; the revised condescendence repeating, but in more detail, all the allegations of the bill, and referring to certain letters of the defender, in which he declared "the utter impossibility of my ever returning to her apartment." The defender still insisted that the action was incompetent. The case was, however, admitted to proof, and afterwards reported on by the lord ordinary,1 and on the 24th of January, 1819, the lords of the first division, having considered this report and the proofs, and heard counsel for both parties, pronounced a decree for separation a mensaâ et thoro, and for alimony. The judg 1 Lord Cunninghame, on reporting on the case on the 18th of March, 1848, said, "Whatever may be the law of England, it has long been established with us, that desertion or non-adherence by either of the spouses to the other, is a high crime and misdemeanor in matrimonial law. It is, in fact, a delict, in which, if the guilty party persists for four years, his crime is placed in the same category with adultery, and entitles the injured party to the last and highest remedy competent to a married party against an offending spouse. But if so, when the offence of non-adherence is commenced, and when it is proved under the hand of a defender himself, that he is never to adhere, from that time and thenceforward, it is apprehended that the wife is not bound to reside in the house with her husband, slighted and insulted by him and his family every hour. And hence, the husband is bound to provide suitable aliment for the wife in a separate residence." Paterson v. Paterson. ment was not unanimous, Lord Fullerton differing from the rest of the judges as to the sufficiency of proof of the allegations contained in the summons. His lordship said, "The pursuer has not made out in evidence any case which would warrant us to pronounce a decree of separation." He added, that "the court must not rashly interfere to sever the union unless the pursuer can make out a case of personal violence, or of positive insult, a kind of treatment which, though moral rather than physical, a court can construe as equivalent to personal violence. Now in this proof I can see nothing of the kind. All that is proved is that he abstained from conjugal intercourse; that he abstained even from conversation with her, and that he did not wish her to cultivate the society of her neighbors. Now are these enough? Are these to be held such personal insults, such open outrages to her feelings, as to be equivalent in a court of law to personal violence, or a case of the kind? I think not.” The appeal was brought against the two decrees of the 13th of June, 1846, and the 24th of January, 1849. Rolt and Harding for the appellant: There is not sufficient in this case to warrant a judicial sentence for a divorce. Lord BROUGHAM. That is the difficulty which has struck my mind. If every allegation in the summons could be proved twenty times over, I do not think that there would be any thing to justify a divorce. I should like to hear something from the other side on this point. Turner and Anderson, for the respondent: The law of Scotland differs very much from the law of England in this respect. Our law is, as Lord Jeffrey said in his judgment in this case, much more strict than the law of Scotland. [Lord BROUGHAM. There is not, as I think, any difference between the two laws with regard to a case of this kind, though there is so with respect to divorce a vinculo. As to that, by the law of Scotland marriage is a civil contract, dissoluble by a court of justice, whereas, by the law of England, it is indissoluble except by parliament.] There is one other difference, and that difference justifies the decree in this case. In Scotland there may be a separation where conduct of the sort proved here has taken place, and where there is no reasonable expectation that the parties can live together, still more where one of them, as here the husband, declares that he or she will not fulfil the duties of a spouse. Where that declaration is persisted in for a certain period, the Scotch law treats the marriage as a contract that can never be performed, and allows of a divorce a mensâ et thoro. A constant system of annoyance, such as has been practised here, rendering it impossible that the parties should live together, will also justify a demand for such a divorce. This is a Scotch contract, and must therefore be governed by Scotch law. The case of Gordon v. Gordon, Mor. Dict. vol. vii. p. 5902, shows that, under circum Paterson v. Paterson. stances like the present, the Scotch courts will entertain a suit for a divorce. Letham v. Letham, 2 Shaw & Dunl. 284, is an authority to the same effect. There a woman was brought by the husband into the house where the wife resided, and was delivered of a child. No violence of a personal kind was committed by the husband, and none was threatened; but the court felt that, under such circumstances, a divorce must be allowed. Then came the case of Shand v. Shand, where the Lord Justice Clerk thus stated the principles of the law of Scotland, 10 Shaw & Dunl. 384; "I can never accede to the proposition that the only ground of matrimonial separation must rest on personal violenee. That is not the law of the country, and I will venture to say it is not the law of any civilized land. A train of maltreatment may occur in the married state, to be viewed and weighed according to the status of the parties in society, perfectly sufficient to found a claim of judicial separation, without an appeal to personal violence." This was in answer to what had fallen, in his judgment in that case, from Lord Cringletie, who, in reply, observed, "I did not maintain that nothing but personal violence could make a relevant case of separation. What I said was, that nothing relevant was stated here, and that the general allegations were [qu. not] inconsistent with the absence of personal violence." [Lord BROUGHAM. Suppose a man constantly called his virtuous wife a strumpet, saying so not to herself alone, but before everybody. As far as suffering was concerned, he had better kick her; but would such conduct give her a right to sue for a divorce?] be a It might, for Bankton says, Bk. i. tit. 5, s. 132, "There may divorce on account of the husband's cruelty or maltreatment." There has been maltreatment here. Besides, in this case, there has also been that negligence and that desertion which amount, in fact, to a complete abandonment of the conjugal duties. Fergusson, in his work on consistorial law, thus sums up the law of Scotland on this subject, (Ferg. Const. Law of Scotland, p. 182.) "If these mutual engagements are broken by personal violence and barbarous treatment, committed by either spouse against the other, the action then lies propter sævitiam." He will not go through the instances. "For with little or no corporal injury inflicted by force, in the upper classes especially, the tyranical conduct of the husband has, at all times, in some, though rare instances, been displayed to such excess even by mental annoyance, threats, unjust accusations, restraints, and privations, as to authorize the injured wife to have recourse for redress to the competent tribunal in the consistorial department." Then comes the case of Murray v. Murray, which establishes, most decisively, that neither adultery nor personal violence is absolutely necessary to constitute a ground for a divorce, but that relief may be given in that form for other causes. Mr. Fergusson thus sums up the facts and law of the case. He says, "From a careful perusal of this case, it does not appear that, in this case, any one act of personal violence, Referred to Ferg. Const. Law, 184, and the facts stated in the Consistorial Records of 1714, pp. 68 to 224. Paterson v. Paterson. however trifling, was established against the defender, during their cohabitation for three years and a half, commencing at the date of the marriage, and extending downwards to that of the action which produced the decree of separation. But the husband, during all this space of time, seems to have been himself possessed, and unceasingly to have tormented his wife, a lady of high breeding and family, and of unblemished character, with causeless but incurable jealousy, which manifested itself in accusations and inquiries of the most injurious description; when prosecuted, he, with professions of penitence and affection, instituted a counter action of adherence against the lady. But, after long and learned debates in both of these cases, a decree, in terms of the libel, was pronounced on her action against him; and she was simpliciter assoilzied, with expenses from his counter process, by the final judgments." That case is exactly one of the kind mentioned. There was no adultery imputed, there was no violence charged, but there was that which was destroying the comfort and the health of the wife, that breaking of her heart by continued unkindness; a course of conduct that rendered the performance of the duties of the husband and wife impossible, and which, therefore, the court thought sufficient to justify the divorce. That case alone would be sufficient to show that, by the law of Scotland, the remedy granted in this instance was correct. Erskine, in his Principles of the Law of Scotland, speaks in more than one place of the separation a mensâ et thoro on account of other causes besides those of adultery and violence. Thus he says, Bk. 1, tit. 6, s. 23; "By our law neither adultery nor wilful desertion is a ground which must necessarily dissolve marriage;" as if desertion might dissolve it, though not necessarily so; "they are only handles which the injured party may take hold of to be free." And again he says, Bk. 1, tit. 6, s. 20, "By the law of Scotland, agreeable to the rules of our holy religion, marriage cannot be dissolved till death, except by divorce, proceeding either upon the head of adultery, Matth. xix. 8, 9; Mark x. 11; or of wilful desertion, 1 Cor. vii. 15.” In the same book he speaks of a decree for a divorce on the ground of desertion for four years together, Principles, Bk. 1, tit. 6, s. 24; and in another part he thus treats of the matter: Id. s. 13: "If the husband should either withdraw from his wife or turn her out of doors, or, if continuing in family with her, he should by severe treatment endanger her life, the commissioners will authorize a separation a mensa et thoro, and give a separate alimony to the wife, suitable to her husband's estate, from the time of such separation until either a reconciliation or a sentence of divorce." In the same manner Mr. Bell, in his " Principles," s. 1540, treats of judicial separation as proceeding on satisfactory evidence of continued annoyances wearing out and exhausting the party. Mr. Rolt referred to the case of Colquhoun v. Colquhoun.1 That case cannot be sup 1 March 7, 1804, Morrs. Dict. vol. xv. voce Husband and Wife, append. part i. case 5: Colquhoun v. Colquhoun.- Proceeding by a wife to restrain her husband from forcing Paterson v. Paterson. ported on any principle. It goes the extraordinary length of declaring that a man may take another house, different from that in which he resides, and make his wife live there. In Bell's Principles, s. 1542, that case is thus spoken of; "But this is not a settled point, and the power is very questionable." Here, however, the case is still stronger; for in addition to studied neglect and disrespect before all the family and servants, there is in the correspondence [he referred to it] the distinct declaration of the appellant that he will not cohabit with his wife. [Lord BROUGHAM. Nothing could give me a more contemptible idea of the man. But suppose a man to say, when he wants a settlement of his pecuniary difficulties, that he is fond of a woman, and when he has got the settlement, suppose him to insult her, and to treat her with the greatest neglect, can you say that that will be ground for a divorce a mensâ et thoro?] It would be so according to the law of Scotland, though it might not perhaps be so according to the law of England. Here we have to do with the Scotch law, which allows a divorce of this kind for other causes besides those of personal violence or those in which there have been threats of personal violence. Supposing, therefore, that the law of England will not grant (which, however, is not admitted to be the case) any divorce to a wife except in these two cases, still it is contended that no such restriction exists in the law of Scotland; but that, where there has been, as in this case, great neglect, a preference of the sister's society to the wife's, disrespectful treatment of the wife before the servants, and finally, the distinct and express declaration, more than once repeated, that the husband will not live with the wife, or treat her as a husband is bound to do, the law of Scotland will grant a divorce a mensâ et thoro, and will assign the wife alimony; and therefore the decree in the present case must be sustained. Lord BROUGHAM. My lords, in this case I wish very much to have the benefit of hearing Dr. Harding upon one point. I am quite clear that this decree of the court below cannot stand in its present form. I have no doubt whatever about that, but it may be well to hear Dr. Harding upon the point I shall mention. This is a very important case in point of principle; and although I shall, as at present advised, move your lordships to reverse the interlocutor complained of, yet I am by no means prepared to set up the interlocutor of Lord Cunninghame, dismissing the suit upon the ground that by the law of Scotland, as well as by the law of Engher to leave her husband's house and live in a separate house which had been provided for her. The majority of the judges said, "It is only where the wife has suffered personal injury that the courts of law will interfere with the husband in the regulation of his household. The more delicate, though not less acute, sufferings of the mind, come not within the cognizance of any earthly tribunal. By the law of Scotland no other remedy is pointed out for this case, but a claim for alimony and the right of suing for adherence, which, after a certain period, will terminate in a divorce for wilful deser |