has raised an action for the purpose of having the nullity of the marriage declared, there arose circumstances which rendered it a matter of legitimate interest that the nullity should be declared, if these facts and circumstances are what are called collateral to the marriage, all suit is barred. It is said that the addition of a strong and legitimate motive to that already existing, instead of strengthening, as I should have thought, the interest and title of the pursuer in such a case, is to have the effect of cutting it down altogether.

Then the second ground upon which it was maintained that it was incompetent to deal with the evidence in this case is the triennial rule as established in the Canon law. No doubt there is not much authority to show that that rule has been followed in practice in the law of Scotland, but I have no reason to suppose that as it is to be found in the Canon law, and is in itself not an unreasonable rule, and has been so recognised in the jurisprudence of England, the Courts of Scotland would hesitate to adopt it where it is applicable. But what is that rule as declared and established by the Canon law? It simply raises a legal presumption that where two persons after solemnising a marriage live together and cohabit for a period of three years, and the lady is able to show that she is virgo intacta, a fact from which the deduction follows that there has been no consummation, that state of things, in the absence of rebutting proof on the part of the husband, will entitle her to have the nullity of the marriage declared. But it is one thing to have a rule establishing a presumption, and quite another thing to have a rule of positive law excluding all other evidence than that which is derivable from such a presumption. The contention at your Lordships' bar has practically been that in certain circumstances where the impotence complained of is of a peculiar character you cannot have evidence establishing it, and no party can have a remedy against it unless he or she comes to the Court fortified by that presumption, even although that evidence should be in itself amply sufficient to convince every reasonable mind that the complaint is well founded. I have heard no authority for that. I do not think that any one of the English cases comes up to it, and if they did, I for one, speaking in a Scottish case, should not be prepared to adopt it as part of the law of Scotland.

I now, my Lords, come to the evidence in this case, and as I do not precisely adopt all the observations which were made upon the evidence in the Court below, I shall deal with it--but I will do so shortly and in general terms, because the subject is a remarkably uninviting one. Upon the evidence I am not prepared to say that the appellant is absolutely incapable of having sexual intercourse. At the same time I think it may be confidently affirmed that he is not in the ordinary sense of the term vir potens. The conclusion which I draw from the whole circumstances of the case is, that owing to the feeble virility and the nervousness of the appellant, and the feelings of indifference or dislike with which the respondent had come to regard him, the marriage never would have been consummated although they had continued to cohabit, and that consummation being thus in my opinion a practical impossibility, the respondent is entitled to the remedy which

the Court below have given her. If non-consummation had been due to conduct on the part of the respondent which could have been character. ised as improper or as in breach of conjugal duty, that might have led me to a different conclusion; but I can find no ground for imputing such conduct to the respondent. According to the evidence the respondent did not resist the appellant's advances; she neither encouraged nor repelled them; and the appellant cannot with justice complain of that state of indifference which was the natural consequence of his own weakness and repeated failures.

I therefore concur in the judgment which your Lordship has proposed.

LORD BRAMWELL-My Lords, I first propose to consider the question whether the impotency of the appellant is made out, and on that subject I have really very little to add to what has been said already. I am not sure that that which took place in his youth may not have had something to do with this matter, but I will only say about it that it is remarkable that he should have discontinued that practice, giving no reason why he did so. It may possibly have been from an inability to continue it. I need not, however, allude to that subject more particularly. After that period there were thirty years of abstinence from sexual intercourse. There were then these various attempts which were unsuccessful, and there was no further attempt. It is incredible to my mind that there would have been none if he had had those conditions of body which would have enabled him to perform his duty to this unfortunate young lady. Then there is his confession to Mr Glover ["the fact is, my dear Glover, that we have had some words, and I have not been able to accomplish my duty as a husband."] We must consider all these things; and although he says in his evidence that he does not believe that he is impotent, at the time of giving it, he does not say that his condition has ever been such as to afford any symptoms or indications that at any time of his life, if he had been so minded, and if he had had an opportunity of sexual intercourse, he could have availed himself of it.

Then there is the medical evidence, which seems to me to be, I may say, discreet on both sidesthat is to say, the man having the material indications or appearances of virility the doctors do not undertake to swear, on the part of the respondent, that he never could at any future time perform a husband's duty to a wife; but they say that they do not believe, as a matter of belief-as a matter of conclusion from the evidence-that he would. And really, my Lords, with all respect to experts, attaching value to their evidence in so far as they say that their experience of other cases has enabled them to form an opinion, which of course is an advantage which one has not had one's self, yet as to other matters as to which they speak I take the liberty of saying that I consider myself free to form my own judgment, and my speculations as to the conduct of human beings under those circumstances are those which must govern my mind, and not those which they think fit to put before us, as to matters on which they have no greater knowledge than I have.

To my mind, upon this evidence, it is conclusively proved that this man was impotent, not

Well then, I will just say one word as to the point which was made about her disqualifying herself by her incontinence with some other man. Suppose that she had bona fide believed that Gordon was dead (a thing which has happened), and had married another man and had had a child, that would be no answer in England (I do not know how it would be in Scotland) to an indictment for bigamy. The punishment would be small, but it would be no answer to the indictment, and the child would be a bastard. But there would be no moral guilt. Could it be pretended that in that case she would have disqualified herself? Then what is the difference? The only difference is that in this case there is the guilt of incontinence; there is a moral guilt which would not have existed in the supposed case.

"I say

Now, my Lords, one word as to this question of "sincerity." It is a most remarkable expression, a very curious word, and I am not at all sure that it has not resulted from this, that sincerity is a very important matter in ascertaining whether the spouse complained of is impotent or not, and sincerity has been dwelt upon for that purpose till at last it has been taken as a separate head of ob. jection to the complaining party's proceedings. It seems to me very strange. What the complainant does in a suit of this sort is to come to the appropriate court for a declaration of the truth. that this man is impotent, and was so at the time of the marriage, and I ask you to declare that fact. Well, then, as to this matter of sincerity, I will not read the words, but those are, I think, the very words of the summons, "Declare the truth, that this man was impotent when he married me. The Court say, 'No, we will not," or the argument is that the Court ought to say, "No we will not, we know that it is true, but we will not say So. Why? In my opinion, a man who has inflicted this cruel wrong upon a woman ought not to be heard to object to her complaining when she comes forward with her complaint of this wrong that he has done her, unless in some way or another he can shew that he sustained some injury from the double matter of her not having complained earlier and of her complaining now. such a case I should indeed think that a law might be made (perhaps it exists for aught I know) that in some way or another the declaration of the truth should be accompanied by some compensation to him for the sort of injury which, as I have indicated, might have been done to him.

In

But supposing that there is such a rule (I do

not know how to phrase it), in my opinion this case is not open to the objection of insincerity. This poor creature comes here, driven by the conduct of the appellant, for a reason which is, I think, perfectly intelligible. I do not think that men are altogether good judges in matters of this description. I can mention a very remarkable case which came before me in Monmouthshire, of a man who was indicted upon nineteen separate indictments for rape. In order to make sure that the man was guilty, I was not satisfied with a verdict upon the first case, but I tried three or four, and there was no doubt about it. The man himself practically stood in the dock and acknowledged it. The story is so incredible that I may mention some more of the particulars. It was upon the top of a lofty hill between two valleys in Monmouthshire, over which there was a footpath, and he used to lie in wait on the top of this hill, and when he saw a woman coming he assaulted her with any amount of violence which was necessary to enable him to accomplish his purpose. The reason why I tell the story is this. I was informed on the most trustworthy authority (and I believe it) that there was almost as many cases against him as those upon which true bills had been found, where he had similarly assaulted women, but that they, rather than submit to the indignity of having to come and tell of the outrage and disgrace which had been inflicted upon them, refused to appear against him. And I can very well understand that in a case of this description a woman would be most reluctant to come forward and stand the shocking ordeal of giving evidence. Read the evidence which the respondent had to give in this case, and see how distressing it must have been to her. She puts up, then, with the wrong which has been done to her by the appellant, until she is driven to bring this suit by his calling her an adulteress and seeking a divorce from her, which divorce would be followed by a forfeiture of her property if he chose to insist upon it. I put it to Mr Davey-suppose that after a man and woman had lived together under these circumstances, he being clearly impotent, his regard for her, if he had any (and I suppose he must have had, otherwise I cannot see why he should have married her), had failed, and he had taken to ill-using her, beating her, would it then have been open to the objection of insincerity if the woman had brought a suit for a declaration of nullity? Mr Davey arguing said (and I do not see how he could do otherwise) that it would. So that supposing a woman was ill-used by having this gross injustice done to her, but rather than complain of it put up with it until her life was made intolerable by the misconduct of her husband, she could get no redress of it. I think it is impossible that that can be law, and in my mind that goes a long way towards showing that it is not the law.

I will just add one word more about this matter. I really cannot understand how this appellant can have done otherwise than welcome the suit which the respondent brought for the purpose of making her offence against chastity less grievous than it would have been if she had been his lawful and true wife. I cannot understand how he could have done otherwise than meet her eagerly to have that decree pronounced which she was praying for. It seems to me to

have been a most cruel thing for him to have acted as he did.

One word more. It is now twenty-five years or nearly so since I delivered my judgment in Castleden v. Castleden [1 Swabey and Tristram, at page 616]. I think that I may claim credit for sufficient candour and for sufficient--what shall I say?-self-denial when I say that if I thought that that judgment was wrong now, after twenty-five years, I could afford to say, "Well, I was wrong then, but I know better now.' But I have read it, and I will say that there is not one word which I uttered then, either in law or in reasoning upon the facts, or in feeling, which I would not repeat at the present moment, and it does seem to me that the judgment which was given in the Probate Court and in this House (I say it with very great submission) is a mixture of two things, either of which taken separately comes to nothing.

Lord FitzgeralD-My Lords, the procreation of children being the main object of marriage, the contract contains by implication as an essential term the capacity for consummation. There may be special circumstances in relation to the marriage of a character to deprive the parties, or one of them, of the right to be relieved on the ground of impotence. But there is no such special circumstance in the present case. The pursuer then rests her case on the ordinary rule that she is entitled to be relieved if she can establish by reasonable and reliable evidence that the defender was at the time of the marriage impotent, and has remained so. The defender denies permanent impotence, and that is the real question now to be determined, and apon that question from the beginning I have entertained no doubt whatever. He further relies apon the supposed rule as to the necessity of triennial cohabitation, as to the want of promptness in instituting the suit, and as to insincerity and the presence of a subsidiary motive.

My Lords, I rest content entirely with the judgment of the noble and learned Earl upon the woolsack as to these additional defences which the defender seeks to raise, but I would add, further, that even if the rule as contended for by Mr Wallace existed in the law of Scotland it would be totally inapplicable to the circumstances of the present case, and the special circumstances here would take it out of this rule if it existed at all. I can very well understand all these doctrines coming in aid, and I take them in aid, upon the question of evidence. For instance, it is alleged that there was insincerity in this sense, that this lady had another motive besides a strong desire to be relieved from the tie of this marriage. She has the strongest of all motives, a motive so strong that I should be inclined to regard her evidence, if in its main features it was controverted, not alone with caution but with suspicion. It is not only her eager desire to be relieved from the contamination of this marriage tie, but, further, she has to relieve herself from the charge of adultery; she has to protect her fortune, and to give her child the status of not being an adulterine bastard.

My Lords, when all these circumstances are taken into account they would lead me to consider what has been so much contested in this case, not as indicating rules applicable to the

special case before us, but as laying before us reasons why we should regard with caution the evidence given on behalf of the pursuer. Then the question as I have thought from the beginning, and the only question in the case, is thisIs the evidence sufficient to establish a case of permanent impotency against the defender? There are certain states of fact not controverted but admitted on both sides, and I take it that the Lord Ordinary was correct (although I differ from him in his judgment) in saying that the real facts of the case, the real matters in proof, were not controverted, but there might be a great controversy as to what were the legitimate inferences to be deduced from the facts so proved. The question which we have to consider is really, What is the reasonable inference to be deduced from the facts absolutely established? What are we to deduce, having regard to the ordinary experience of life, and applying common sense to the facts which are before us?

My Lords, before dealing with these facts I will in a very few words advert to one other matter which Mr Wallace brought before us. He relied upon the unwillingness of the pursuer to continue cohabitation. No doubt she did exhibit after a certain period the strongest unwillingness, and I would ask with reference to that argument, how could it be expected to be otherwise? For two months this woman had submitted to what I should call treatment degrading in the highest degree, especially in reference to the later statements which the defender has brought forward as indicating that he thought there was a recommencement of his virile power, and she certainly would not have the feelings of a woman if she had been willing that that disgusting treatment should continue.

Again, it is said that she made no complaint. But is that statement well-founded? Why, from the time of the abandonment of his marital rights by the defender, which he tells us took place in February (I shall have a word. to say as to that presently), her life has been a protest. Not only can it be said that there has been complaint, but through the whole of her married life there has been a protest against the trap into which she had fallen.

Now, let us consider what is the general character of the evidence, and ask ourselves as reasonable men, and applying our experience of the ordinary circumstances of life to the case, Ought there to be a doubt upon this subject? I do not allude to anything in the defender's early life. He certainly was a man of chastity for the thirty-five years that he lived before his marriage and after he left school. His statement is (and I have no doubt of its truth) that he never had intercourse with a woman. That may spring from virtue, it may spring from high principles of chastity, but there is another view to be taken of it, and a doubt may arise whether that continued abstinence from women did not indicate at the earliest period the absence and the continuance of a want of virile power.

My Lords, I called attention to that part of the case early in the argument as one of the important elements or one of the important lights in which we should regard the evidence. This gentleman up to the time of his marriage not only had no sexual knowledge of women, but, according to his statement to Mr M'Fadyen just

66

before his marriage, he did not even understand what his marital duties would be. He asked Mr M'Fadyen was it not expected of a married man that he should do something or another, and he evidently went to his friend Mr M'Fadyen to get information upon the subject. Well, then, when a man of fifty or in the fiftieth year of his life under these special circumstances marries a young woman of twenty, described as handsome, desirable, and one who is likely to create passionate sensation, and lives with her for a period of at least two months, but probably two months and eleven or twelve days, and makes not only one effort but repeated efforts to accomplish the duty of a husband, and in every instance with complete failure, from that the fair inference is the non-existence of marital capacity. But he says, If I have time, and if I have opportunity, and if I have encouragement and assistance, I believe that all will come right in the end." But is that the kind of capacity which a wife seeks for in a husband? One of the doctors speaks of "due encouragement;" nay more, the wife is to submit to the degradation of “assisting;" and he adds, "If you supplement that by a bottle of champagne he may possibly effect his purpose," and we are asked, upon this evidence, upon a statement of that kind, and upon the opinion of a doctor based in part upon what he heard from the defender, to rebut the fair inference arising from the facts incontestibly proved that at the time of the marriage this man was incapable, and that during two months at least, notwithstanding repeated efforts, he proved his incapacity; but we are to go still further and complete the terms of three years' cohabitation, allowing effort upon effort to be made, in the hopes that in the end something may come of it.

Is it

Now, upon the medical evidence it is very curious that the defender himself tells us that in the month of February he gave up once and for all any further attempt. He says that he was induced to that because of the evident dislike which the pursuer shewed to his embraces. One is not surprised at it, but is it accurate? true? Because more than six weeks after he has given up as he alleges once and for all any attempt to have connection with his wife, for sexual purposes we find him consulting Dr Sidney Smith; he consults him as late as the 27th of March. And what is the question which he puts in his conversation with Dr Sidney Smith? In these communications up to the 27th of March his conversation is as to his not being able to consummate the marriage. So that up to the 27th of March, six weeks after he says he desisted from attempts, he was in consultation with Dr Sidney Smith, and he was advising with him as to the means in which he might acquire the strength which would enable him to consummate the marriage. Dr Sidney Smith gave him recipes or supplied him with medicines, I do not know which. He says that he never took those medicines, but that is to me persuasive proof that he felt, when he desisted from having communication with his wife, that he was incapable, and that he hoped to restore his capacity by exciting medicines, but that he failed to continue taking them because he found them to be useless.

With regard to the remaining medical evidence, some of it I do not value much, but there is one pregnant sentence in the evidence of Dr Angus

Mar. 5, 1885.

He

Macdonald which is extremely suggestive. says "I think it is hardly in human nature to imagine that he was capable of performing the marital act when he did not do so while they lived together. In some cases there is a temporary incapacity." He then alluded to transactions of newly married people, and proceeds to say "In the present case the opportunities recorded in the evidence were far too numerous to account for it without a distinct defect of virile power." Then he enters into details such as the defender communicated to him or he has heard in his evidence. He adds-"And these (that is, the conditions which the defender himself had described) “are just the conditions in which we find the worst cases of impotency in the male." According to that medical evidence he had in his statements indicated the worst features of permanent incapacity, and yet we are asked to act upon his own belief founded only upon the possibility that if time and opportunity were given to him, and if the adjuncts which I have already described were supplied to him, he might in the end find means of consummating his marriage.

My Lords, the inference which I draw is the very opposite. From the defender's history, from his two months of abortive attempts, from his one year and six months of lying beside this desirable young woman without even making an attempt to exercise his rights, I come to the conclusion, clear and plain to my mind, not alone that he was incapable as to her, but that he was impotent at the time of the marriage, and that that impotency was permanent and still continues.

It is said that the pursuer ought sooner to have instituted the suit. I ventured to observe in the course of the case, and I repeat it now, that there is not one of us who cannot recall to his memory the experience of some case in which a woman submitted to the worst of treatment-treatment degrading and humiliating-and allowed it to continue, rather than permit her name to become the subject of a public scandal. And when we add to this that the lady in question had two sisters young and unmarried who would necessarily be implicated in any disclosure as to her character, that would greatly strengthen her motives for silence, and probably she would have submitted to much more if she had not been driven to her present course by the institution of the action for divorce.

Upon these grounds, my Lords, I entirely concur in your Lordships' judgment.

Interlocutors appealed from affirmed, and appeal dismissed with costs.

Counsel for Pursuer (Respondent)-Sol.-Gen. Sir F. Herschell, Q.C.. Jameson. AgentsStibbard, Gibson & Co. - Boyd, Jameson, & Kelly, W.S.

Counsel for Defender (Appellant)—Davey, Q. C. -Robert Wallace-R. L. Wallace. AgentsAndrew Beveridge-Beveridge, Sutherland, & Smith, S.S. C.

de

COURT OF SESSION.

Tuesday, May 13, 1884.

OUTER HOUSE.

[Lord Fraser. LADY WILLOUGHBY DE ERESBY V. WOOD AND MACMILLAN.

Property-Riparian Proprietor-Water-courseMills-Regulation by the Court of Right of Upper Heritor to Use Mill-dams.

An upper heritor is entitled to dam up and detain for the purposes of a mill on his lands the water of a stream flowing through them, although such detention may render irregular the supply of water to a mill on the lands of an inferior heritor, provided that such detention is not unreasonable, and where no unreasonable detention has been proved the Court will not interfere to regulate his use of his mill-dam.

The pursuer of this action, Lady Willoughby de Eresby, was institute of entail in possession of the lands of Stobhall, forming part of the estate of Drummond. On her property were the lands and saw and turning mill at Den of Brunty known as Brunty Mill. The defender, E. W. Wood, was proprietor of the lands of Keithick, including the meal mill of Keithick, of which Macmillan, the other defender, was tenant. The Brunty Mill and Keithick Mill were both on, and were both driven by, the Keithick Burn, the former being a quarter of a mile below the latter.

Brunty Mill had no mill-dam. For time immemorial before 1875 Keithick Mill had a mill-dam in which water was gathered and stored for the purposes of the mill.

In 1875, however, the defenders removed their then dam and made a new one a little lower down the burn nearer Keithick Mill, and near a quarryhole belonging to a disused quarry, establishing a cut from the quarry-hole to the new dam. The defender Macmillan was in use to shut the sluices at night and also during the day in order to store and regulate the supply of water for Keithick Mill.

The pursuer alleged that these operations were prejudicial to her by preventing Brunty Mill, for which she alleged the natural flow of the burn sufficed, from having that natural flow, and she raised this action to have it declared that she was entitled to the full, free, and uninterrupted enjoyment of the water of the burn for all uses for which a heritor may lawfully enjoy the water of a stream which runs through his lands, and particularly for the use of Brunty Mill, according to use and wont; that the defenders had no right to make or use any reservoir or other opus manufactum for the purpose of diverting or detaining the stream, and keeping it dammed up, thereby preventing it flowing in its accustomed course through her property; she also sought to have the defenders ordained to demolish their works already made, and to have decree of interdict against the making of similar works. Alternatively, and in any event, she sought declarator that the defenders were not entitled at their

own pleasure to raise, lower, use, work, or in any way interfere with, the sluices in the existing new dam, but that she was entitled to have them regulated so as to protect her just rights as an inferior heritor, and those of her tenant in Brunty Mill.

The defenders pleaded, inter alia—“(3) The defenders are entitled to absolvitor-1st, in respect that the existing arrangements do not innovate upon immemorial possession; 2d, that the same are not injurious to the pursuer ;

....

4th, that the existing arrangements are necessary to the fair and reasonable use by the defender of the water of the said burn, and are within the defender's (Wood's) rights as a riparian proprietor."

After a proof, the Lord Ordinary (FRASER) pronounced this interlocutor:-"Finds that the defender Mr Wood is proprietor of the corn or barley mill of Keithick, and that the other defender Alexander Macmillan is tenant thereof: Finds that the motive power by which the said mill is wrought is the Keithick Burn, which runs past said mill through the grounds of the defender Mr Wood: Finds that from time immemorial the proprietor and tenant of the mill of Keithick have had a mill-dam for storing the water of the burn for the purposes of the mill, and that the water in said mill-dam has been stored or gathered, and has been let out therefrom by the Keithick miller according as the water was necessary for the use of the mill, and that such storing and letting out of the water was always done without any interference from the lower heritors who had mills upon the burn: Finds that in the year 1875 the defender removed his mill-dam to a place nearer the Keithick Mill, at which place he formed a new dam, and opened a communication between this dam and an exhausted quarry: Finds that this new dam, with the water in the quarry-hole, has been in use by the defenders since the year 1875, and that the former mill-dams have been thereby superseded : Finds that the junction between the dam and the water in the quarry-hole was of great service in enabling a larger quantity to be stored than could have been effected by means of the dam itself: Finds that the pursuer is the proprietor of Brunty Sawmill, situated a quarter of a mile below Keithick Mill, and which mill is driven by the water of the burn which is sent down from Keithick Mill: Finds that the pursuer has good and undoubted right and title to the full, free, and uninterrupted benefit and enjoyment of the Keithick Burn for all uses to which a heritor may lawfully employ the water of a stream which runs through his lands, and particularly for the use of the mill at Brunty: Finds that Brunty Mill has no mill-dam by which water can be stored for its use, but is dependent entirely upon the flow as it comes down from Keithick Mill, and which, if not utilised as it descends, passes by Brunty Mill onwards: Finds that the Keithick miller, by shutting the sluice of his mill-dam, for the purpose of storing the water, thereby detains it, and prevents the Brunty Mill from working when the water is so detained: Finds in law that it is within the right of the Keithick miller to detain the water in his mill-dam for the purpose of obtaining a sufficient head for the working of his mill, and that unless such detention be for an unreasonable time the miller at Brunty is not