Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROCESS-ADULTERY.
Subject_3 The pursuer of a divorce for adultery must condescend specially upon the person with whom the crime is supposed to have been committed.

Houston Stewart Nicolson, Esq
v.
Mrs Margaret Porterfield

Date: 21 February 1770

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[Faculty Collection, V. 62; Dictionary, 12, 639.]

Hailes. The judgment of the Commissaries is consonant to practice and to reason. The same judgment was given by this Court in the cases of Dormant and Cuninghame. The judgment in the case of Michie was not different: for there the husband was abroad, and could know nothing of his wife's galants. The Court would not require impossibilities, nor oblige a man to condescend upon what he could not know—but it required his doer to declare that he could not condescend more specially than he had already done.

Barjarg. There is no reason for concealing the man's name when known, and when the pursuer restricts his libel to the proof of guilt with that particular man.

Justice-Clerk. The excellent statute of James VI., 1606, would be eluded, were parties allowed to go on in prosecutions without mentioning names.

Coalston. This action comes as near a criminal action as can be. The lady is entitled to the privileges of a criminal. When no person objects, an action of divorce may go on without the mention of names: not so, when a more particular condescendence may be given, and is required.

Gardenston. My difficulty lies here:—if the man is pointed out, how can he be made a witness and obliged jurare in suam turpitudinem.

President. By the old practice of the Commissary Court, a pursuer was not obliged to condescend. But the contrary was solemnly determined in the case of Cuninghame. This case is still stronger: the person described as the gallant is said to be a person of low rank. If the pursuer means to avoid condescending, merely with the view of bringing this nameless low person as evidence, this would be dangerous indeed, and make way for too easy conviction, in so atrocious an accusation as that of adultery. There is no danger from the action of damages, which the pursuer says may be brought by the supposed gallant, if the proof should prove insufficient. For, if a husband shows that he had a probable cause of suspicion, no damages will ever be awarded; and, if he has no probable cause, there is no reason why he should not be exposed to damages.

On the 21st February 1770, “The Lords refused the bill of advocation.”

Act. A. Lockhart. Alt. Hay Campbell. Rep. Monboddo.