Creasey v Creasey
| Jurisdiction | Scotland |
| Judgment Date | 17 October 1930 |
| Date | 17 October 1930 |
| Docket Number | No. 2. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackay.
Evidence—Written evidence—Private writings—Admissibility—Diary—Divorce for adultery—Diary containing entries in defender's handwriting—Admissibility of diary as evidence against co-defender.
In an action of divorce on the ground of adultery,held(revjudgment of Lord Mackay) that entries made by the defender in a private diary kept by her, the import of which was that she had committed adultery with the co-defender, although evidence against her, could not be founded on as as evidence against the co-defender.
Husband and Wife—Divorce for adultery—Process—Sisting of alleged paramour—Right of party sisted to judgment as to his guilt or innocence—Form of interlocutor.
In an action of divorce on the ground of adultery, the summons contained a conclusion that the Court should find facts proved relevant to infer the defender's guilt of adultery with a named paramour, but it did not call the latter as a defender or contain any direct conclusion against him. On receiving intimation of the action, the alleged paramour lodged defences and was made a party to the action as co-defender. Thereafter the Lord Ordinary pronounced an interlocutor finding facts proved relevant to infer that the defender had committed adultery, and decerning for divorce in terms of the conclusions of the summons. The co-defender having reclaimed,—
The Court pronounced an interlocutor affirming the decree of divorce against the wife; but finding that the evidence was insufficient to infer that the co-defender had been guilty of adultery, and assoilzieing him from the conclusions of the summons.
On 2nd July 1929 Herbert Hudson Creasey brought an action of divorce for adultery against his wife, Mrs Gladys Annie Schelling or Creasey, the conclusions of the summons being that "the Lords of our Council and Session ought and should find facts, circumstances, and qualifications proven relevant to infer the guilt of adultery of the defender with George Gardner MacLean … and therefore find her guilty of adultery with him accordingly; and our said Lords ought and should divorce and separate the defender from the pursuer, and from the pursuer, and from his society, fellowship, and company …" Defences were lodged on behalf of the defender.
George Gardner MacLean thereafter lodged a minute denying the truth of the charges made against him, and craving to be allowed to lodge defences. On 5th November 1929 the Lord Ordinary allowed the defences to be received; and thereafter the record was closed on the summons and on the defences for the defender and the defences for MacLean.
A proof was thereupon taken before the Lord Ordinary (Mackay), from which it appeared that the pursuer and defender were married in Bristol in September 1919, and came to live in Glasgow in November 1921; and that an estrangement between them, which had begun after the birth of their only child in 1921, continued to increase until, in August 1923, the defender finally left the pursuer and returned to live with her parents in Bristol. It also appeared that in Glasgow the parties renewed an acquaintance with the co-defender, whom they had known in Bristol before their marriage; that from this time a growing intimacy developed between the defender and the co-defender; and that; with the pursuer's acquiescence, the co-defender frequently accompanied the defender to dances, theatres, and picture houses. Evidence of this intimacy between the defender and the co-defender was given by the pursuer and by a domestic servant employed by the parties at the time, but there was no evidence of familiarities having taken place between them. The servant, however, deponed that...
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