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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Donald v. M'Donald [1875] ScotLR 12_471 (25 May 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0471.html Cite as: [1875] SLR 12_471, [1875] ScotLR 12_471 |
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Page: 471↓
[Sheriff of Lanarkshire.
When a wife is living in family with her husband it is not competent for the Sheriff to award the wife an allowance of interim aliment on the ground of the husband's cruelty. If she has a case for separation and aliment, she must raise an action in the Court of Session.
This was an action raised on 16th December 1873 in the Sheriff Court of Lanarkshire by Mary Hume or M'Donald, residing at 373 Bath Street, Glasgow, wife of David M'Donald, tailor and clothier there, pursuer, against the said David M'Donald, defender, concluding “for alimont aye and until a permanent arrangement of the rights and interests of the parties shall be made by a competent Court, with expenses. The pursuer being compelled to live separately from the defender by reason of the defender conducting himself towards her in such a harsh, cruel, and tyrannical manner as to endanger her health and life, and more particularly upon the 11th day of December current, within the house occupied by them at 373 Bath Street, aforesaid, struck her with his fists upon the face and other parts of her person to her serious injury and effusion of blood, and also having on various previous occasions illused her.”
A diet of proof was fixed on 28th January 1874, and evidence was led on 2d April, 30th May, 25th and 26th October; and on 6th December 1874 the Sheriff pronounced this interlocutor:—
“ Glasgow, 5 th December 1874.—Having heard parties' procurators, and made avizandum, finds that the pursuer and defender are husband and wife, and that on the 11th day of December 1873, within the house occupied by them, the defender struck the pursuer with his hand on the head to the effusion of blood, and that she has since and is now living separate from him: therefore decerns against him for the sum of 12s. a-week in name of interim aliment for the maintenance and support of the pursuer, commencing payment of the said aliment as on the 11th day of December 1873, and so on weekly thereafter in advance, aye and until a permanent arrangement of the rights and interests of the parties shall be made by a competent Court; finds the defender liable to the pursuer in expenses.
Note.—The record of evidence in the present case discloses a story of domestic unhappiness between husband and wife such as does not often come before a court of law. The conduct of the pursuer, almost ever since her marriage with the defender, has been characterised by almost every feature unbecoming in a wife. Vexatious and irritable temper, petty annoyance, grave dereliction of duty, studied insult, personal violence even, have formed prominent incidents in her behaviour. With one exception only, the defender seems to have shewn great command of temper and forbearance, carried, perhaps, to an extent that was hardly consistent with his duty of ruling well his own household. Most men of more firmness of character would have at an early period of the marriage taken legal but efficient means to teach and compel the pursuer to obedience and duty. That she has, at least, relieved him of her society, is a result which he ought to be the last to regret. Still, whatever the provocation received, it has wisely been laid down by the law that a man shall not in any circumstances, except the imperative necessity of self-defence, lift hand to his wife. This, by his own letter, No. 6/1 of process, the defender is proved to have done, though after a long course of misconduct on the part of the pursuer, which, while it cannot justify, may go far to palliate, his rash act. The Sberiff-Substitute is anxious it should be understood that were it not for the admission in this letter he would have been inclined to place very little reliance in the pursuer's own statement, but would have been inclined to hold that when the defender struck her he was acting in self-defence.”
The defender appealed, and the Sheriff adhered.
The defender appealed to the Court of Session.
At advising—
The
Page: 472↓
When this action was raised the pursuer was living in family with her husband in his house, which was the domicile of the marriage. It was an essential preliminary to granting aliment that she should prove her right to separation, and this she could only do by a consistorial process, an action of separation and aliment in this Court. It would have been quite different if the spouses had been long separate, or had been living separate under a joint arrangement. Then it might be supposed that the parties consented to an allowance being made to the wife. But so far from this being the nature of the case, the pursuer continued to live with her husband after defences were lodged, and after proof was allowed. Then, for the first time, when she considers herself safe of obtaining interim aliment, she thinks fit to leave the house. Nothing could more clearly illustrate the abuse of the power of granting interim aliment than the conduct of the pursuer here. It was just because she saw she was going to obtain her aliment that she left the house. I think that the action is incompetent under the circumstances, and should be dismissed.
The other Judges concurred.
The Court pronounced this interlocutor:—
“Recall the interlocutors of the Sheriff-Substitute and Sheriff complained of; find that when the action was raised in the Sheriff-court the pursuer and defender were living together in the defender's house; find that they continued so to live together during the dependence of the action down to the 17th of March 1874, when the pursuer left the defender's house, and has since lived separate from him; find that, in these circumstances, the action for aliment was and is incompetent; dismiss the said action, and decern.”
Counsel for the Pursuer and Respondent— Mr Balfour. Agents— J. & R. D. Ross, W.S.
Counsel for the Defendant and Appellant— Mr Rhind. Agent— Wm. Kelso Thwaites, S.S.C.
