Sir William Cuningham Fairlie, Bart. v. Dame Marianne Campbell or Cuningham Fairlie [1815] UKHL 6_Paton_121

UKHL
Sir William Cuningham Fairlie, Bart. v. Dame Marianne Campbell or Cuningham Fairlie
[1815] UKHL 6_Paton_121
The plea of remissio injuriæ remissio injuriæ was sustained by the Court of Session, but in the House of Lords the case was remitted for reconsideration, with considerable doubts expressed as to the judgment below, in consequence of there being no evidence that the husband had probable knowledge of his wife's guilt at the time of the alleged condonation.This was an action of divorce brought by the appellant against the respondent for adultery committed by the latter, in which the special defence of remissio injuriæ remissio injuriæ was stated by the respondent as a bar to the action.The appellant, in regard to this defence, stated that, at the time alluded to, when he forgave the respondent, he knew nothing of any act of adultery having been committed. Certain rumours and hints led him to inquire, and he found that they all ended in certain familiarities with a young man of the name of Begbie, who resided in the house, but did not amount to guilt, such as could found a divorce. And having charged her with these, it led her to protestations of innocence, which reconciled him to her at the time. Afterwards, however, having received two letters from Major Brown, in regard to her conduct, which he opened in her presence, and on reading them, discovered his uneasiness, such as led her to be anxious to know their contents. Accordingly, that very night, or early next morning, he found that she had taken these two letters out of his pocket, and had gone to Begbie's bedroom, where he found her reading to him (Begbie) the two letters which he had received about her conduct with him. He left the house on this occasion, and on her entreaties again returned, and slept with her again. Afterwards, however, he received

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Mar. 5, 1812.The commissaries were unanimous in holding that the defence of remissio injuriæ remissio injuriæ was not made out after his actual knowledge of her criminality. But this judgment having been brought under the review of the Court of Session, the Court finally, of this date, remitted to the commissaries “to sustain the defence of remissio injuriæ remissio injuriæ , but supersede extract till the first box-day in the ensuing vacation.” *From this interlocutor of the First Division of the Court the present appeal was brought to the House of Lords.Pleaded for the Appellant .—1st, While the respondent set up the defence of remissio injuriæ remissio injuriæ , she contended that the facts condescended on by the appellant, were not founded on fact; but the defence of remissio injuriæ remissio injuriæ was not competent, except upon the ground that the appellant was cognizant of certain facts inferring the criminality of the respondent, and being so cognizant, renewed his marital intercourse with her. 2d, The greater part of the facts condescended on by the appellant, became known to him in consequence of the investigation which he set on foot, as to the conduct of the

Footnote

* Opinions of the judges:—

By previous interlocutors, the Lord Ordinary and the Court had come to an opposite conclusion; and at this advising,Hutchison v. Hutchison , Mar. 11, 1808 (unreported). Vide Frazer's Domestic Relations, vol. i., p. 667.Lord President Hope said,—“I think the circumstances of remissio injuriæ remissio injuriæ as strong here as in the case of Hutchison, where the defence of remission was sustained.”Lord Balmuto .—“The difference between the two cases is, that Hutchison knew and was thoroughly informed of the adulteries, and had actually commenced his process of divorce. But in this case, all was in a state of suspicion and investigation only. There were no doubt strong grounds of suspicion; but this did not just amount to certain conviction, at least in his mind; and my view was, that it would require something very strong to tie a man for life to such a woman as this.”A majority were for refusing on that ground.But on another advising (March 1812), the Lords altered and sustained the defence.Hume's Collection, Session Papers, vol. 114.

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Pleaded for the Respondent .—The appellant's mind was made up in the month of January 1809 or in the beginning of February, for it was towards the end of January that the visit to Bath began, in the course of which, he determined to separate from his wife for ever. He had communicated this determination to Mr James Cuningham; had directed him to get separate lodgings for his wife. These directions had been complied with, and the lodgings actually seen and approved of by the appellant on the 11th of February. Now he admits in his judicial declaration, that he slept with the defender on his return from Tunbridge Castle on the night of Sunday the 12th of February. Yet so capricious and unfair was his conduct, that on the 13th, being the very day in which he had left her room, he wrote the letter which he gave to Mr James Cuningham, and which is misdated the 14th, and falsely dated from Stilton. The cohabitation between the night of the 12th and 13th, is conclusive against the appellant. These facts are proved by his judicial declaration and the testimony of Mr James Cuningham. The declaration acknowledges the cohabitation upon the 12th; the condescendence states, that on the 14th, the appellant wrote to the respondent that he never meant to see her more, and of course the resolution must have been adopted for sometime before he wrote. The appellant attempts to explain away all those circumstances by pretending they were resorted to merely for the purpose of facilitating investigation , and there is no doubt that this word was used. But it is a very equivocal expression; for in one sense, the separation which at this moment subsists between the parties, as well as the whole procedure under the action of divorce, may be said to have taken place for the same end. It is not necessary for the respondent's plea that she prove the appellant to have been so convinced, and his evidence so prepared, that he required to make no further inquiry, before he demanded a divorce. It is enough for her to show that he heard and believed the existence of the injury which he afterwards forgave. The appellant's conduct, therefore, amounted to that remissio injuriœ remissio injuriœ , which is sufficient, by the law of Scotland,

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After hearing counsel,

The Lord Chancellor (Eldon) said—

“My Lords, *

There was a cause heard sometime ago, in which Sir William Cuningham Fairlie was appellant, and Dame Marianne Cuningham Fairlie, his wife, was the respondent. This arose from a divorce which the appellant, Sir William Cuningham Fairlie, endeavoured to enforce by an action in the Court of Commissaries of Edinburgh. It appears that these parties were married in November 1790, and, as the appellant states, in the years 1806, 1807, and 1808, the parties resided at different places in England. My Lords, in 1806, it will be in your Lordships' recollection that the intimacy and supposed criminality of James Begbie with Lady Cuningham have been the subject of a great deal of discussion in the papers and at your lordships' bar. It certainly appears that Sir William C. Fairlie entertained considerable suspicions as to the chastity and purity of his wife's conduct; an examination was instituted into the grounds of those suspicions upon more occasions than one, and at length Sir William Cuningham Fairlie was so well satisfied of the fact in his own mind, that Lady Cuningham Fairlie had committed an act of adultery, that he instituted this action of divorce.The respondent gave in her defences, and in her defences she denied the truth of the charge.My Lords,on the 26th of January 1810, the Commissaries pronounced this interlocutor:—
“The Commissaries having considered the libel, execution, defences, answers, condescendence for the pursuer, answers thereto and replies, and pursuer's oath of calumny, before further procedure, ordain the pursuer to give in a more articulate condescendence, and therein to state when he was first informed of or had reason to believe the criminal intercourse of the defender with James Begbie, mentioned in the process.”
In consequence of this interlocutor, the appellant lodged another condescendence to which the respondent answered, and then the Commissaries, on the 16th of March 1810, pronounced a second interlocutor in which they “ordained the pursuer to give in an additional condescendence, and therein to state much more specifically the times when the different criminal acts alluded to in the first, second, and third articles of the condescendence, are alleged to have taken place, and to allow the defender to see and answer the said additional condescendence

Footnote

* From Mr Gurney's Short-hand Notes.

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“The Commissaries having resumed consideration of this cause, find that the pursuer's declaration does not instruct the defence of remissio injuriæ remissio injuriæ pleaded by the defender; therefore ordain her to give in a special and articulate condescendence of the facts she will undertake to prove in support thereof;”
which condescendence having been given in, and the appellant having answered, the Commissaries pronounced a further interlocutor of the 23d of August 1811, by which they state that, “having considered the proof adduced by the defender, and whole process, repel the defence of remissio injuriæ remissio injuriæ , allow the pursuer a proof of the facts stated in his libel and condescendence, and of all facts and circumstances tending to support the conclusions of his action; allow the defender a conjunct probation anent the premises, and grant diligence hinc inde .” Against this interlocutor also, the respondent reclaimed, and the appellant having made answers, the Commissaries, on the 26th of November 1811, pronounced this interlocutor:—
“The Commissaries having considered this petition with the answers, refuse the desire of the petition, and adhere to the interlocutor of the 23d of August last; appoint the pursuer's proof to proceed on Friday three weeks after the Court; but allow the defender, if so advised, to apply by bill of advocation, in the meantime, complaining of the judgment of the Commissaries, repelling the plea of remissio .”
Your lordships, therefore, perceive that, upon three occasions, as I understand these proceedings, the judges in the Commissary Court were of opinion that there was nothing before them sustaining this defence of a remissio injuriæ remissio injuriæ , which should repel the right of the appellant to enter into proof of the facts of adultery, which he alleged, but at the same time the Commissaries seem

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Mar. 5, 1812.The respondent then presented a reclaiming petition, which the Court directed to be answered, and answers having been given in, the Court on the 29th of January 1812, by a majority of their number, pronounced this interlocutor:—
“The lords having heard this petition, they refuse the prayer of it, and they adhere to the interlocutor of the Lord Ordinary reclaimed against, and sist process for ten days, that the petitioner may reclaim if she shall see cause.”
Here are, therefore, my lords, two judgments, one of the Lord Ordinary, and the other of the first division of the Court of Session, acceding to three judgments of the Commissary Court—so far the interlocutors all agree. The respondent then presented a second reclaiming petition which the Court directed to be answered, and answers having been given in, the Court, on the 5th of March, by a majority of their number (all of them, I think, stating themselves to have great difficulty, and if I may be permitted with infinite respect to say so, perhaps mistaking the case in some views that may be taken of it with respect more to other considerations than whether this defence of remissio injuriæ remissio injuriæ should be admitted), pronounced this interlocutor:—
“The lords having resumed consideration of this petition, and advised the same with the answers thereto, they alter their former interlocutor, and remit to the Commissaries with instructions to sustain the defence of remissio injuriæ remissio injuriæ ,”
and from this last interlocutor of the Court of the 5th of March 1812, this appeal is brought.My Lords,the result seems to be this, that the Commissary Court were of opinion that this plea of remissio injuriæ remissio injuriæ was not a plea on which they should act, or at least on which they should act to the extent of holding Lady Cuningham Fairlie acquitted of the fact of adultery, the Lord Ordinary thought so, and the first division of the Court seem to have been almost all of the same opinion on the first occasion when this matter was brought before them, but on its being brought before them for further consideration, the majority were of opinion that this remissio injuriæ remissio injuriæ was a sufficient answer to the adultery, even supposing the adultery to have been committed. My lords, I have observed in such memoranda as we have of the judges' opinions (being very loose notes, and notes in general so loose that I am afraid on many

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My Lords,I do not mean to say there is not some evidence of that sort here. There is some evidence of that sort, contradicted, however, by other evidence applying to that which was said, to which the former evidence referred, and therefore bringing into evidence the declarations, if they were unquestionably true, but they do not appear to be declarations on which the Court of Session proceeded.My Lords,it is laid down in all the books, and particularly by Burn, an author of great weight with respect to ecclesiastical doctrine, and with respect to divorce:
“If the party accused shall prove that the accuser, before the commencement of the suit, had probable knowledge of the crime committed, and yet afterwards had carnal intercourse with the accused, in such case the accuser shall not obtain a sentence of divorce, for the crime shall be supposed to have been remitted;”
and this author states what he means by a probable knowledge of the crime committed, he says,—“probable knowledge in this case is, if the husband suspecting his wife, shall charge her with the offence, and she confess it, or if the witnesses whom he shall afterwards produce, shall signify to him before the commencement of the suit, that they can testify the offence from their own sight and knowledge,” that is, of course, that the witnesses have informed him what they have learned by their own sight and knowledge, whose testimony he is to use in procuring the divorce, in order to prove those facts which that very sight and knowledge would give him the means of proving, “or if the husband shall take her in the act of adultery,” and so on. Each instance which he states, is an instance, in which, it was quite impossible, but that the husband must know enough before he afterwards conducted himself to his wife, or so declared his opinions with respect to his wife,

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My Lords,I am quite satisfied that this case has not been sufficiently considered upon these nice points, and there is one particularly which may require a little further consideration, and that is this, supposing it happens that a man has forgiven his wife the act of adultery committed at one time, it cannot be contended that that is to operate to all time thereafter that she pleases; and, therefore, the case is to be considered, not with reference to the conduct of the husband, as to one act of adultery alleged to have been committed in 1806, but the case, when put on the question of remissio injuriæ remissio injuriæ must be considered with reference to the years 1806, 1807, and 1808. If he did remit the injury committed in 1806, no man will argue that he thereby gave her a licence, as it were, to commit as many acts of adultery as she thought proper, in the years 1807 and 1808, and, therefore, when, in a case of this sort, judges jump to the conclusion that the husband has remitted, and do not at all establish that he was acquainted with the facts, and meant to forgive that which he knew had taken place, as contradistinguished from his being induced to believe that the fact of adultery had not taken place; and when, again, the point to which I have last adverted, is considered, that the remissio injuriæ remissio injuriæ cannot extend to a further period, I think it is fit the case should be further considered.My Lords,I should be very unwilling to go more particularly into this. I think I have said sufficient for the purpose of founding upon it the proposition, which I intimated to your lordships the other day, that I intended to make. Feeling that we may possibly, in this part of the island, have different notions upon this subject in matters of pleading, from what the Commissary Court (who seem, however, rather more to agree with us than the Court of Session), and what the Court of Session may have, and that, therefore, this is that sort of case in which your lordships

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I therefore move your lordships, in this very special case, to remit this to the Court of Session, and that they do review the several interlocutors complained of, and do, after such review, as to them shall seem meet and just.”It was ordered and adjudged that the cause be remitted back to the Court of Session to review the interlocutors complained of, and to do therein as to them shall seem just.Counsel: For the Appellant, Sir Saml. Romilly, Thos. Thomson. For the Respondent, Fra. Horner, Henry Cockburn.Note .—Unreported in the Court of Session. For further opinions of the judges, vide President Campbell's Session Papers, vol. 147, Nos. 11 and 12.