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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Janet Stedman, wife of James Stedman of Kinross v. James Stedman of Kinross [1742] UKHL 6_Paton_675 (6 February 1742) URL: http://www.bailii.org/uk/cases/UKHL/1742/6_Paton_675.html Cite as: [1742] UKHL 6_Paton_675 |
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Page: 675↓
(1742) 6 Paton 675
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
No. 112
[Fraser's Domestic Relations, Vol. i., p. 666.]
House of Lords,
Subject_Divorce — Remissio Injuriæ. —
Though a husband, who raises an action of divorce against his wife, on the ground of adultery, does not withdraw himself from his house, where his wife chooses to remain, after the summons is served on her, but eats and sleeps separately, under the same roof, he is not held to cohabit with, or to be reconciled to her, so as to raise the plea of remissio injuriœ as a bar to the action; and, therefore, that plea was, in this case, repelled.
An action of divorce on the ground of adultery, was raised by the respondent against the appellant, his wife, setting forth that he had been recently informed, and had the greatest reason to believe, that his wife had for several years been guilty of, and had committed acts of adultery with Charles Coupar, sheriff-clerk of Kinross, who had regularly every Sunday morning, after he had gone to church, come to his house and had connection with his wife. It was also mentioned, that criminal familiarities with Mr Coupar were said to have taken place in the most public places.
Upon hearing this, the respondent stated that he thought
Page: 676↓
In defence the appellant appeared (on 2d August), and pleaded, That since she had been summoned, at least since the respondent had received the information that moved him to institute the suit, he had cohabited with the appellant, and entertained her in his house, which she insisted was a sufficient bar in law to the action, as it implied a reconciliation, or remissio injuriœ. It was answered for the respondent, That, though she still lived with him under the same roof, yet, they had separate beds, and that cohabitation only, or sleeping under the same roof, could not imply remission of the offence.
The respondent was allowed a proof of his libel, and the appellant liberty to prove her defence.
Aug. 19, 1741.
On the representation against this interlocutor, she insisted, that the cohabitation itself, that is, living together in the same house, after the suit commenced, was a passing from the action; and that this was sufficient, without carnal conversation, and, therefore, desiring leave to bring proof of their cohabitation since citation; but the Commissaries adhered to their former interlocutor, and repelled the defence proponed.
Sept. 7, 1741.
Sept. 16, 1741.
Afterwards the appellant presented a petition, offering to prove. That after the false information received by the respondent, of her alleged guilt, he was perfectly reconciled to her, owned and treated her in every respect as a wife, intrusted her with the management of his family; that they were frequently in private by themselves, both night and day; that he was in the room with her in private by themselves, while she was in naked bed, with the door shut upon them, and that after the summons was executed he was in naked bed with the appellant. Answers having been given to this petition, the Commissaries pronounced this interlocutor:
“In regard the defence of reconciliation was laid so strong in the petition, as to exclude the libel, they, before answer, allow the appellant to prove her defence as laid; and allow the respondent a conjunct probation; and supersede taking proof of the libel till the proof of the defence was concluded.”
The proof was accordingly taken. It seemed to amount to this, 1st, That the appellant and respondent lived in the
Page: 677↓
On the other hand it was alleged, that this testimony could not be relied on, and was contradicted by every other article of evidence, and the whole tenor of the proof as led. It was proved, in particular, at that very time, that the respondent and appellant were both in a very different frame of mind towards each other.
Dec. 4, 1741.
The commissaries thereafter found, “that the defence of reconciliation was not proved, and therefore repelled the said defence, and allowed the respondent to prove his libel, and allowed the appellant a conjunct probation, as to all facts and circumstances that may exculpate, and granted diligence.”
Jan. 5, 1742.
Jan. 22, 1742.
The appellant brought an advocation to the Court of Session. The Lords, on the report of the Lord Ordinary, refused the bill. And on reclaiming petition the Court adhered, and remitted the cause to the commissaries.
The Commissaries ordered a proof of the libel, whereupon the appellant brought a second advocation; the Lords remitted again to the Commissaries to proceed with the proof in the action of divorce, and with instructions to supersede the appellant's proof of alleged subornation, till that proof was completed.
Against these interlocutors the present appeal was brought.
Pleaded for the Appellant.—1st, As the charge upon the appellant was laid in so very general and uncertain a manner, that it was morally impossible any person could bring proof of facts, that inferred a negative of the charge; and as the appellant had full proof of some practices used to suborn witnesses against her, she could, without any admission of guilt, rely upon the legal defence of reconciliation or remissio
Page: 678↓
2d, The Commissaries and the Lords of Session ought to have found the remissio injuriœ sufficiently proved, as the evidence of the facts upon which it is founded would, in another case, have been sufficient to convict either of the married persons of a criminal conversation.
3d, The Court ought to have allowed the appellant to prove the practices used to suborn some persons to become witnesses in the cause.
Pleaded for the Respondent.—The plea of remissio injuriœ set up by the appellant at the very time the respondent was commencing and carrying on the suit, is in itself most improbable, unsupported by any credible proof, and inconsistent with what was proved by witnesses of undoubted veracity; and, from the manner in which it was first proposed, after the defence of cohabitation, though twice insisted upon, had been over-ruled, seems plainly to have been an after-thought of which the appellant was not apprised at the time she first appeared in this action.
2d, Her application to the Court for liberty to bring proof of several allegations, relative to the subornation and corrupting of witnesses, was only resorted to for the purpose of delay, and was in itself without foundation.
After hearing counsel,
It was ordered and adjudged that the interlocutors be, and the same are hereby affirmed.
Counsel: For the Appellant,
Alex. Lockhart,
W. Murray.
For the Respondent,
Wm. Hamilton,
C. Erskine.