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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Gaan v. M'Gaan [1880] ScotLR 18_155 (3 December 1880) URL: http://www.bailii.org/scot/cases/ScotCS/1880/18SLR0155.html Cite as: [1880] ScotLR 18_155, [1880] SLR 18_155 |
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Page: 155↓
Where a woman proved on the part of her husband continuous intoxication followed by threats and personal violence, which caused her reasonable fear for her life, the Court granted decree of separation, the wife having agreed to pay her husband an alimentary annuity of £25 out of her separate estate.
Mrs M'Gaan raised an action of separation and aliment against her husband on the following grounds, as stated in her condescendence:—Almost immediately after her marriage she became aware that her husband was much addicted to drinking. In April 1877 his drinking habits had increased to such an extent that scarcely on any night did he return home sober, while his language was most violent and abusive. In the month of June he returned one day about twelve noon from his work much intoxicated, and finding his wife in bed, to which she was confined, as his violence had made her ill and nervous, ordered her to rise, threatening that in the event of her not doing so he would throw both her and the bed over the window. Afraid to live with him, she then went to reside with her sister in Ayrshire for about a month, but on her return she found no improvement in his behaviour. He still continued to come home drunk, threatened to murder her, pushed her about, pinched and squeezed her, twisted her arms, and otherwise maltreated her. In the month of March 1879 he came home one night late very drunk and very violent. He knocked over some of the furniture, threw water in his wife's face, and on his threatening to do for her she in her terror took refuge with a neighbour for the night, and when she returned next day he locked her out of the house. In the afternoon he admitted her, and on his promising amendment she was persuaded to remain with him. In June 1879 he one day came home drunk, behaved with the same violence, and by his threats compelled her again to seek shelter in the house of her nephew. In July 1879 he again compelled her to escape from his violence to some friends in Glasgow, where she remained about a month. In October he again drove her in terror from the house, to take refuge in the stair, where she remained for about an hour. There she induced one of her neighbours to accompany her back to the house in order that she might get her hat and jacket. She remained in lodgings for about a week, and only returned home on his promising that he would leave her in peace for the future. In February 1880 he was continually intoxicated, and very violent and abusive. On one occasion she locked herself into her bedroom, but he smashed the panel of the door with an axe and burst it open, threatening to do her bodily harm. On another, occasion he threatened to kick her out of the house and to take her life. He seized her, twisted her arm, tearing her dress, and as she much frightened ran to the door he shut the door on her, squeezing her severely between the door and the doorpost, and injuring her severely. She shortly after managed to escape from him, and took refuge in the house of their next-door neighbour, after which the pursuer removed to a friend's house in Edinburgh, where she still remains. He lived entirely on money belonging to the wife, and though he in 1877 was earning a salary of £100 as a traveller in a wine merchant's firm in Leith he never contributed anything to her support.
The defender in defence denied the alleged threats and acts of violence, stating that it was owing to the pursuer's irritable temper that they could not live happily together.
In the proof which was taken in the case before the Lord Ordinary the pursuer's averments were substantially proved, and no attempt was made by the defender to meet those averments.
The Lord Ordinary (
Adam ) assoilzied the defender from the conclusions of the action.The pursuer reclaimed, and it was argued for her—She was entitled to decree of separation, because (1) in point of fact the alleged continuous intoxication, violence, and threats were clearly proved; and (2) in point of law it was enough to show that there had been well-founded fear produced by threats or violence used when under the influence of continuous intoxication.
Authorities— Paterson v. Russell, August 9, 1850, 7 Bell's App. 337; Fulton v. Fulton, June 28, 1880, 12 D. 1104.
It was agreed by the parties at this stage of the case that a minute of agreement should be put in process by which the defender agreed to decree of separation being pronounced against him; the wife on her part undertaking to pay her husband an annuity of £25 out of her separate estate.
At advising—
Where, however, on the other hand, there is continuous and personal injury, though it may not have gone on up to the time when relief is sought, there arises a different case, and here we have sufficient evidence of such violence. The evidence as to the conduct of the defender shows that he has never done a hand's-turn of work, and lives entirely on his wife's money. Time after time she has had to retreat from her house for fear of his violence. We have her own statement, and further we have the fact that the defender has not come forward to deny that statement. Things have clearly been going on from bad to worse. Her fear has been well founded; and I cannot think that a woman who is being thus treated is bound to abstain from appealing to the Court till she has suffered some grave injury at her husband's hands. On the whole matter, we must recal the interlocutor of the Lord Ordinary, while our judgment will be qualified by the agreement.
The Court pronounced this interlocutor:—
“The Lords having heard counsel for the parties on the reclaiming-note for the pursuer against the interlocutor of Lord Adam, Ordinary, of date 14th July 1880, Recal the said interlocutor: Find that the defender has been guilty of cruelly abusing and maltreating the pursuer, and that therefore the pursuer has full liberty and freedom to live separate from the defender, her husband, and decern; and ordain the defender to separate himself from the pursuer a mensa et thoro in all time coming.”
Counsel for Pursuer (Reclaimer)— Macdonald, Q.C.— Thorburn. Agent— Andrew Wallace, Solicitor.
Counsel for Defender (Respondent)— Campbell Smith— Millie. Agent— William Paterson, Solicitor.
