question tending to show that he or she has been guilty of adultery," unless such witness have already given evidence in disproof of his or her alleged adultery. But the Act is not to effect the existing law as to actions of declarator of marriage founded on promise and copula. (37 and 38 Vict. c. 64.) On this enactment two decisions have been pronounced which at first sight appear hardly consistent, but it is apparent that the later is merely an extension of the earlier one. The earlier case (Kirkwood, 1875, 3 R. 235) decides that the provision in the Act is for the protection of the witness and not for the benefit of the defender, and that, if the witness is willing, after being cautioned by the judge, to answer any such question, the defender has no privilege entitling him to insist that the witness shall avail himself of the enactment. The later case (Cook, 1876, 4 R. 78) holds that a witness shall not be put in the position of having to refuse to answer; and that when any such question is put, it is the duty of the judge to object, and to prevent the question and the witness's declinature to answer from being recorded.

235. It is impossible to indicate universally what circumstances will warrant the conclusion that adultery has been committed, because, as Lord Stowell has remarked, "they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings on the particular case. The only general rule that can be laid down is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion." (Loveden v. Loveden, 2 Hagg. p. 23; see also Burgess v. Burgess, ib. p. 226.) 236. [Lenocinium.]-Divorce will not be granted where the injured party has connived at the crime of adultery. This plea [which is known as lenocinium] has never been put forward in Scotland in bar of an action of divorce, except by the wife;

[and there is only one reported case in which it has been sustained as a defence at her instance. (Marshall, 1881, 8 R. 702.)]. But in England it is competent to the husband (Turton v. Turton, 3 Hagg. 338), and probably would be held to be so in Scotland also, if a case similar to the well-known scriptural one (Genesis xvi. 2) were to occur. It arises where the husband becomes the instrument of his own dishonour, by conniving at his wife's adultery, or inciting her, directly or indirectly, to the commission of the crime. (Ersk. i. 6. 46; Fraser, 1184 et seq.) [What constitutes lenocinium has never been strictly defined, and is always a question of circumstances. (Wemyss, 1866, 4 M. 660; Marshall, supra.)]

237. [Condonation.]—Again, if the party injured has been reconciled to the offender, he is held to have passed from his right to rescind the marriage contract, and his right to divorce is barred. (Fraser, 1176 et seq.)

238. The most pregnant circumstance in proving remission is always the voluntary continuance of matrimonial intercourse after the knowledge of the adultery. [Whether remission, or, as it is technically called, condonation, can be evidenced otherwise than by cohabitation-as by letters expressing forgiveness -has never been decided in Scotland; but it rather seems that actual cohabitation would be indispensable (Ralston, 1881, 8 R. 371), as it is in England, where the remission is not held to have been made until the husband has taken the wife back to his house, and re-installed her in her place at the head of his household. (Fraser, 1177.) The forgiving spouse cannot attach conditions to his or her condonation on violation of which it could be recalled. Once given, it is absolute and irrevocable. (Collins, 1882, 10 R. 250; aff. H. L. Feb. 18, 1884.)]

239. Recrimination is no bar to divorce in Scotland, though mutual guilt may affect the patrimonial consequences of the dissolution of the marriage. (Ersk. i. 6. 45, and note; Bell's Prin. 1535.) Recrimination, although not a competent defence

to an action of divorce, may be pleaded by way of a counter action. In England it is a competent defence; and it is thought the English rule might with advantage be adopted in this country.

240. Long delay might raise a presumption that remission of the injury has taken place; but it is not in itself a bar to an action of divorce. (Bell's Prin. 1533; Mortimer v. Mortimer, 2 Hagg. 313; Fraser, 1199.) The action for divorce is barred, or, having been commenced, falls by death; but if after judgment of divorce in the Outer House the pursuer should die before the reclaiming note is heard, his representatives may sist themselves in the action. (Ritchie, 1874, 1 R. 826; see also Fraser, 1145.)

241. Desertion, cruelty, the neglect of conjugal duties, or the denial of conjugal rights on the part of one spouse, will not justify adultery in the other, or bar the action of divorce.

4. Malicious Desertion.

242. Apostolic sanction has been claimed for divorce on the ground of desertion. (1 Cor. vii. 10, 11, 15; Stair, i. 4. 8.) As now recognised in this country, it is grounded on a statute (1573, c. 55), in which it is spoken of as resulting from the doctrines of the Reformation. It is recognised in all the Protestant countries of Europe except England, in America, and in those of our colonies in which the law has not been derived from that of England.

243. The first step towards obtaining a divorce on the ground of desertion, till very recently, was to raise an action of adherence. The pursuer having proved both the marriage and the desertion, decree of adherence was granted; the Church (i.e. the presbytery, as coming in place of the bishop) was then called upon to admonish, and, if necessary, to excommunicate, the offender, a duty which it invariably declined. If these warnings were disregarded, an action of divorce, reciting the procedure in the action of adherence and before the presbytery, was then pursued in the Court of Session.

244. All this has now become matter of history, the Conjugal

Rights Act of 1861 (24 and 25 Vict. c. 86, sec. 11) having declared it to be no longer necessary, prior to any action of divorce, to institute against the defender any action of adherence, nor to charge the defender to adhere to the pursuer, nor to denounce the defender, nor to apply to the presbytery of the bounds, or any other judicature, to admonish the defender to adhere. [An offer by the offending spouse to adhere, after the summons in the action of divorce has been served on him or her, comes too late to bar the action. (Muir, 1879, 6 R. 1353.)]

245. Desertion must be malicious; [and that not only in its inception, but during the whole period of four years;] and in the case of a defender who remains abroad, it will be necessary to prove that he does so with a deliberate purpose of abandoning his conjugal duties, and that he is not detained by the exigencies of the public service, or of his own private affairs. (Ersk. i. 6. 44; Walker v. Walker, Dec. 7, 1844; Duke v. Duke, March 1, 1845; [Barrie, 1882, 10 R. 208].)

246. [A defender who is undergoing a sentence of imprisonment for a criminal offence is not in malicious desertion during that period, though his desertion may have commenced before his sentence. (Young, 1882, 10 R. 184.)]

247. It was long doubted whether malice could be presumed, to the effect of allowing an action of divorce to proceed, without personal service and intimation to the defender. The point was rendered of much practical importance by the fact that the residence of the defender, in such cases, is very frequently unknown; and had such intimation been required, the injured party (usually the wife) would have been deprived of her legal remedy. It is now provided by 24 and 25 Vict. c. 86, sec. 10, that "in every consistorial action the summons shall be served upon the defender personally, when he is not resident within Scotland; provided always, that if it be shown to the satisfaction of the Court that the defender cannot be found, edictal citation shall be deemed sufficient." But where the citation is edictal,

the children of the marriage, if there be any, and one or more of the next of kin, must be called.

248. Any ground which would have justified a demand for judicial separation, will be a good defence against an action of adherence; e.g. cruelty on the part of the pursuer, that he committed adultery, and the like.

249. It would be a valid defence against an action of adherence or of divorce on the ground of desertion, in which the wife was pursuer, that the husband had required her to accompany him abroad, and she had refused; because she is bound to follow him throughout the world. (Stair, i. 4. 8; Ringer v. Churchill, Jan. 15, 1840; but see Reid v. Reid, July 10, 1823; Fraser, 1214.)

250. Action of divorce for desertion may be raised after one year's desertion, and proof taken; the divorce being given after the four years have elapsed. [This is stated by Bell (Prin. 1535), and there appears to be no other authority; and it has been recently called in question by the bench. There appears, on the other hand, to be no limit to the length of time at which the action may be raised, provided the desertion has been wilfully and maliciously persevered in during the whole period-in one case twenty-seven years. (Mackenzie, 1883, 11 R. 105.)]

XII. EFFECTS OF DIVORCE.

251. Divorce being a complete disruption of the marriage tie, both parties are at liberty to marry again. To this rule there is one statutory exception. By 1600, c. 20, the offending spouse and the paramour, if named in the decree of divorce, are not permitted to marry; but this statute is generally supposed to be in desuetude (Bell's Dict. Ross' edit.), though Lord Fraser contends for the opposite view (H. and W. 144); and it is not unusual to omit the name of the paramour in the decree of divorce, for the purpose of evading the Act.