Scottish Court of Session Decisions

The Lord President, who delivered the judgment of the Court, said—This is a very peculiar case. It appears that the parties were married in 1842. In 1858 they separated. They had been living in Dundee, where the husband was a shoemaker. While they lived together they had eight children. After the separation, the wife appears to have lived first in Clarence Street, Edinburgh, then in Hellisfield Cottage, Leith, and latterly in Springfield Place, Leith Walk. In all these places she lived under the name of Mrs Lamb, which was her maiden name. There does not seem to have been any intercourse or communication of any kind betwixt the pursuer and defender after 1858. In November 1863 this action was raised. The case has some remarkable features. The pursuer's case substantially is this: The co-defender, who is an auctioneer, and apparently an itinerant one, had lodged in the pursuer's house in Dundee before the separation. After the separation, he is found living in the same house as the defender, in Clarence Street, Hellisfield Cottage, and Springfield Place. It is said by the pursuer that they went by the names of Mr and Mrs Lamb. Further, the pursuer says the defender gave birth to a child after the separation. Some witnesses say that this child was called Emma White (being the co-defender's name); others say she was called Emma Lamb, but she was never called Emma Bathie. There is produced an extract from the register of births to the effect that on 4th April 1859 a child was bom named Emma Grace White Lamb; that this child was illegitimate; that the mother's name was “ Grace Lamb Lady,” and the birth is said to have been registered on 8th April by the mother, who signed the register “Grace Lamb.” Then the alleged paramour is called as a witness, and he avails himself of his privilege of declining answering questions. This declinature is not positive evidence either one way or the other. But it may have more or less significance in such cases as this according to circumstances. If the party is a friend of the pursuer of the divorce, I could not regard it as proving guilt on the part of the defender. If, on the other hand, he is a friend of the defender, the circumstance is suggestive, and may be one of those circumstances the aggregate of which constitutes circumstantial evidence. It was said in the debate that circumstantial evidence was always only suspicion. I don't agree with that. Circumstantial evidence is a series of suspicious circumstances which when woven together produce conviction. The defender has led no evidence, but says the pursuer has not proved his case. She says she did not separate voluntarily, but that the pursuer became drunken and ill-treated her, and that she had to fly from hint. The pursuer, on the other hand, says that she deserted him. Neither party has led evidence as to this matter; but there are circumstances tending to support the defender's version. All the children seem to have gone with the mother. Then she says she had to keep lodgers to support them, and there is evidence that she did so. She had a larger house than was necessary for herself and children alone. She went by the name of Lamb, dropping the pursuer's name because, as she says, she did not wish to be persecuted by him or his creditors. It was not denied in argument that the child was born after the separation. How is that explained? In regard to the extract from the register, I do not feel inclined to give much weight to it. The statute no doubt makes an extract evidence, but that only means that it renders unnecessary the production of the register. Why was there no evidence that the defender made the entry in the register and signed it? I attach, therefore, no weight to the extract. Assuming, then, that a child was born in April 1859, it is said the child must be the co-defender's, as he was living in the house with the defender. We cannot hold that this child was not the pursuer's. The presumption of law is that the child was conceived before the separation. We must therefore hold the child to be the pursuer's. Then it is alleged that they lived as Mr and Mrs Lamb, but this is not sufficiently proved. The servants in the house, who had the best opportunity of observation did not regard them as husband and wife. Then there is no evidence of familiarities indicating impropriety except on one occasion, which is spoken to by only one witness, who is uncorroborated by anyone else. The child seems to have called the codefender “papa,” and he called her his little daughter, and so forth. I don't attach much importance to this circumstance. It only acquires importance if you assume the paternity. But if you suppose that the co-defender was a lodger who had befriended the defender and her children, it is not extraordinary; and one of the defender's sons deponed that the co-defender had acted as a father to them all. It is very strange that although the parties lived so long in the same houses there is no direct evidence of adultery. There is no evidence of their sleeping together. On the contrary, there is evidence that up to January last the defender slept with her eldest daughter. On the whole, therefore, whatever suspicions may attach, there is no sufficient proof to warrant our altering the Lord Ordinary's interlocutor.