Paterson v. Paterson.

the other hand, are meant only indignities of language, or of not associating with her, or of leaving her in a room by herself and not speaking to her, indignities which render her life uncomfortable, then I can only say that this is not the law laid down in any of the cases save perhaps one, that of the Duke and Duchess of Gordon, and which I take to be already unsustainable as law in Scotland.

Then comes the authority of a very able text-writer, Mr. Bell, who in his "Principles," s. 1540, has said that judicial separation may take place if life is endangered, or on "fair and reasonable ground of apprehension of personal violence," or, from " continued annoyance, wearing and exhausting the party." Now that is abundantly vague. Clearly, no continued annoyance without threats, and without making it utterly impossible for the woman to live with and endure the society of her husband, no annoyance of an ordinary kind, however continued, can, even by the authorities of the law of Scotland, be maintained as sufficient ground for divorce.

Next we have Mr. Bell's "Illustrations," vol. 2, tit. Judicial Separation, in which he refers to one or two cases, and among others to that of Colquhoun v. Colquhoun, Mor. Dict. vol. 15, app. voce Husb. & Wife, pt. 1, c. 5, p. 10, where the court actually found that the husband had a right to make the wife quit his house and repair to another which he had prepared for her reception, a thing to be very much kept in view here, when we find that this case has been mainly decided on the ground that the husband did not frequent his wife's society, but made her live in a different part of the same house.

We have now to consider the cases, and that of the Duke of Gordon, Mor. Dict. vol. 14, Husb. & Wife, c. 112, p. 5902; 1 Fount. 773, in the first place. Can any man pretend that it is the law of Scotland at this day, (certainly the judges themselves do not state it,) that the following is a sufficient ground of separation a mensa et thoro? "Refusing to allow the wife money for necessary uses, such as purchasing mourning at the queen's death; debarring her from superintending the education of her children, especially her daughters, when young; shutting the doors of his lodging, and keeping her out at night, and thrusting away the coachman for opening the same." Clearly, all these form no ground of separation; no one can contend it; and the learned judges did not contend it; therefore the case of the Duke and Duchess of Gordon, if it proves any thing, proves a great deal too much, and I take upon me to say, that if the decision went upon the ground stated, it is not now law. To be sure, there follows in the report a very material addition to the facts, an addition upon which the case must have proceeded, and without which it never could have been rightly pronounced, I mean the interlocutor overruling the judgment of the commissaries and directing the cause to go on. "His scandalous and familiar converse," it is stated, "with one Mrs. Needham, her waiting-woman, and protecting her after the duchess had discharged her the house." "Scandalous and familiar converse can only mean one thing- can only mean illegal connection with that woman. I have no manner of doubt that the court thought so, and that the case turned upon this material circumstance.

Patterson v. Patterson.

There are one or two other cases relied upon; Letham v. Letham, 2 Shaw & Dunl. 284, is one," maltreatment and adultery." Now what does the Lord Ordinary say as reported there? "That during the dependence of the action of aliment brought by the respondent, the representer raised a counter action of adherence, and that those actions, upon his own motion, were conjoined, and therefore finds it unnecessary to determine whether the action of aliment was competent; finds that a maid-servant, with whom the representer had had a criminal intercourse, was allowed to continue in family with him at the time of his marriage, and that after the respondent, on knowing the fact, had justifiably withdrawn from his society, the same person was retained in his family, or was brought back to it; and finds that the gross dereliction of his duties as a husband entitled the respondent to withdraw finally from his society." I take it to be clear, then, that the court proceeded upon the belief that the adultery existing before the marriage inured afterwards; that it was continued, by his keeping the adulteress, the servant, in the house with his wife. As for the case of Shand v. Shand, which is the only other having any bearing upon the present, I find that the point there decided is foreign to this question. Indeed the case was not stated by Mr. Turner in any other way then, because of the dictum. A case of constant maltreatment is said to have been alleged upon the record; but, let it be observed, that we are left wholly without any detail, any specification, of the particulars of which that constant maltreatment was stated to consist. Accordingly, the case seems to be adduced only for the dictum of the Lord Justice Clark, who says, 10 Shaw & Dunl. 384, "I never dreamt that we were now to go into all this mass of correspendence; we are not in a concluded cause; no proof has yet been allowed, and in the mean time I shall reserve my opinion upon the merits and bearings of the evidence, into which I will not enter at present. But I never can accede to the proposition that the only legal ground of matrimonial separation must rest on personal violence. 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." And he then says that she is not "to be precluded from her entire proof when the treatment becomes unbearable." This case, therefore, really proves nothing, except the opinion of the learned judge that the law of Scotland does not require, and I do not say that it requires, proof of actual personal violence, or even threats of its immediate infliction.

But then, my lords, the question is, whether the facts before us bear us out in saying that the case at bar comes up to the cases put by the learned judges, and upon which their opinion seems entirely to have turned. When Lord Jeffrey puts a case which he imagines, for the purpose of showing that not merely violence, but things far short of violence, will justify the court in pronouncing a separation; such as the holding her up to scorn before her own servants, ordering her servants not only to disobey her, but to join in the chorus of hissing against their mistress, his wife, the mother of his children, at

Paterson v. Paterson.

the head of his family; when Lord Jeffrey puts that as a case, I have only to answer it by saying that it is a very good case to support a proposition which I do not deny, viz., that is not necessary there should be personal violence to constitute a ground for divorce. But it is anything rather than a confirmation of the judgment here pronounced; because it is enough to say, not only that the two cases are not identical, or even similar, they are actually different. This is nothing like that case. What have we here? Withdrawing from her society, coldness towards her, leaving her apartment, telling her father that he will on no account ever renew his cohabitation with her, stating that he is wretched in consequence of his marriage,- all things very painful to the feelings of the woman, all things very unhappy for the man, but any thing rather than those things which Lord Jeffrey supposes in the case put, and which, with others of a like kind, appear to have been working more or less in the minds of the learned judges during all the time they were applying their minds to the consideration of the facts of the case before them, and to have seduced, as it were, their attention from that which ought alone to have occupied it,the facts proved in evidence before the court. I remember, among other things in the evidence, a statement that he walked out very much with his sister; that he was frequently seen in her company, never with his wife; that the gardner observed the sister and the brother together, and when they saw the wife coming in sight, they would turn round so as to avoid a meeting. Painful to the wife no doubt all this; painful that he should prefer his sister's society to his wife's, but anything rather than such cruelty as would justify a sentence of divorce. As for the lesser matter of his not going to church with her; his even not allowing her to attend divine service; his preventing her family from associating with her; and his giving a threat to the father that if they came they should understand it must be at their own peril; of course all this might be very improper in his circumstances, considering the relations of the parties; but it is anything rather than the cruelty required to support an application for divorce. With regard to the treatment of the wife before the servants, he says distinctly, and it is not traversed on the record, it is not even denied at the bar, that during all this time he remained alienated from her and suffering from his own depression of mind, he never used a single spiteful, or violent, or scornful expression towards her. That is not denied. Nay, it is asserted, and no such expressions are proved. Nor is there any thing of the kind in his correspondence with the father, observing upon the state of his feelings, and endeavoring, I think unsuccessfully, to excuse his own previous conduct. It may be further observed, and especially with reference to the cases put below of a husband calling on his servants to join in showing disrespect to their mistress, that the evidence here is the very reverse. It is proved that the servants took their orders from her, habitually treating her as mistress of the house, always with her husband's knowledge and assent, sometimes by his express direction.

Then, my lords, this judgment, being of a nature that a law, neither of the one part of the island nor of the other, can support, what remains

Paterson v. Paterson.

for us to do but to reverse it, and to take care that, in the reversal, we do not set up the first interlocutor of the Lord Ordinary, which appears, erroneously, to lay down that nothing but actual personal violence will suffice as a ground of divorce. I should be sorry that such a view of the law of Scotland should go forth, as implied the propriety of dismissing the action, "in respect the libel is laid upon a series of insults and indignities said to have been offered by the defender to the pursuer, unaccompanied with personal violence, or any menace thereof; and that, without an allegation to that effect, it appears to be settled on authorities, which the Lord Ordinary is not entitled to question, that a libel at the instance of a wife against a husband, founded on such averments as those now urged, is not relevant." That, my lords, is not the law of Scotland; it is not the law of England; it is an inaccurate statement of the law in both countries; though I will not say that the law of Scotland, as far as decided cases go, may not extend somewhat further than our laws in favor of the remedy.

I shall propose to your lordships this course; to reverse the interlocutor appealed against of the 13th of January, 1846, in so far as it remits the case to the Lord Ordinary, with instructions to open the record, and proceed in the cause; but to affirm the interlocutor in so far as it alters the interlocutor of the Lord Ordinary, with respect to the grounds of his dismissing the action. It will, therefore, stand thus: that you, giving the same judgment as the court below ought to have given, alter the interlocutor of the Lord Ordinary in respect of the restricted view which he takes of the grounds of a sentence of divorce; but affirm the interlocutor of the Lord Ordinary in so far as, independently of those reasons, it dismisses the suit. Then, in respect of the ultimate decision of the court below, the second interlocutor appealed from, of the 24th January, 1849, which grants a "remit to the auditor to tax the account of expenses and to report, and before answer as to the question of aliment, ordains the defender within fourteen days to give in a special condescendence of the amount of his means and estate," that must be reversed altogether.

In thus moving your lordships, I must add, that I sincerely lament the unfortunate fate of this lady to be wedded to such a life. I view, with a disposition charitably to extenuate, if I could justly, the conduct of Mr. Paterson. He appears to have been led on, from one thing to another, without due reflection upon the necessary conse quences of what he was doing. From his pecuniary circumstances, coupled with the attachment which he seems for a moment to have formed for Miss Russell, he appears to have been drawn into a course of proceeding which is wholly indefensible, of which he must in part pay the penalty, but from which the wife, the more innocent party, must be still made a sufferer.

With these observations, I move your lordships to reverse the one interlocutor altogether, and to alter the other interlocutor in the way I have stated.

Paterson v. Paterson.

Turner. Before your lordship proceeds to put the judgment of the house, you will be aware that the case is a peculiar one with reference to costs. Your lordship observes the nature of the suit.

LORD BROUGHAM. We cannot give her the costs when she sues her husband and fails.

Turner. Ordinarily speaking, the husband pays all the costs in suits of this description.

LORD BROUGHAM. In Doctors' Commons, when the husband sues he pays all the costs, even of an appeal to the Arches.

Turner. So it is in Scotland.

LORD BROUGHAM. Dr. Harding, when the wife fails in an attempt to obtain a separation a mensâ et thoro, do you ever allow her costs from the husband who succeeds?

Harding. I do not remember a case of any application for costs in such a case being made to the court, and for this reason: in Doctors' Commons, the wife takes care to get her costs out of the husband de die in diem.

LORD BROUGHAM. Do you mean when she sues him?

Harding. When she sues him for a divorce, she may do so.

LORD BROUGHAM. When she sues him for a divorce, does she not get her costs, supposing she fails?

Harding. She does not make an application, after having failed.

LORD BROUGHAM. But she does before failing. If she succeeds, of course she will get costs; but suppose it remains in dubio whether she may succeed or not, does she then get her costs de die in diem?

Harding. Yes, my lord, I believe she ground that she has nothing of her own, to sue.

does, if she chooses, on the that she has not wherewith

Turner. That is more strongly the rule in Scotland. In this case, they gave the costs of the court below; but if your lordship reverses the interlocutor, we shall not recover those costs.

LORD BROUGHAM. It must be reversed, with the exception of the part of it which awards her her costs; she will, of course, get no costs

here.

Turner. Probably your lordship will reserve the costs of the ap