Scottish Court of Session Decisions

This was an action of separation and aliment, at the instance of Mrs Mary S. Edmonston or Symington against her husband Andrew James Symington, merchant, Glasgow, on the ground of the alleged adultery of the defender. The parties were married in June 1860, and lived together till January 1871. There were six children of the marriage, the youngest of whom was born in August 1870.

The averments of the pursuer were, that from the commencement of the year 1870, the defender paid very marked attention to a girl, Elizabeth (or Ellie) Heron, a nurserymaid in the service of the parties, and that from the commencement of that year he frequently kissed and was guilty of other familiarities with the said Elizabeth Heron—going into the nursery with the object of practising these familiarities with her. The pursuer further alleged that in or about the month of January 1871 the defender succeeded in seducing the said Elizabeth Heron, and that he carried on an adulterous intercourse with her in his house at Nyeholm during the months of January, February, March, April, May, June, July, August and September 1871. And that in consequence of the said adulterous intercourse with the defender the said Elizabeth Heron became pregnant in or about the month of April 1871, and in the month of October 1871 the defender sent her to a relative of her own in Ireland, where she, on 26th January 1872, gave birth to a child, of which the defender was the father.

The defender denied the charge of adultery, and on his part charged the pursuer with having for some years previous to the raising of the action indulged to excess in narcotics and alcoholic liquors.

In course of the procedure before the Lord Ordinary it was explained for the pursuer that, in the event of her succeeding in obtaining decree of separation on the ground of her husband's adultery, it was her intention, founding upon section ninth of the Conjugal Rights Act, 24 and 25 Victoria, c. 86, to ask the Court, on the final decree in this action, to give ber the custody and maintenance and education of the pupil children of the marriage. To this the defender rejoined, that even assuming it were proved that he had been guilty of adultery as alleged, the pursuer was not a fit person to be entrusted with the care of the children, owing to her indulgence in intemperate habits.

In consequence of this state of matters, the Lord Ordinary allowed a proof embracing the whole charges by the parties against each other. The evidence led was very extensive, including not only oral, but also a mass of documentary evidence, consisting mainly of correspondence between the parties and their relatives.

Among other documents produced and strongly relied on by the defender was a letter written by Elizabeth Heron, the mother of the child, in these terms:—

“October 24.

My Dear Miss Walker,—I know you wish me well, and it is only right to let you know that nobody at Nyeholm had anything to do with my trouble, and I am very sorry for the trouble I have caused you all, but I know that nobody at Nyeholm is to blame.

I am not very well and must stop. Give my love to Mary and Jessie. I am very grateful for your kindness to me.—Yours truly,

Ellie Heron.”

A letter was also produced, dated 15th May 1871, addressed to the pursuer by defender, in which the latter deals at great length with the matter of the alleged habits of the pursuer with reference to stimulants, &c., and her alleged untruthfulness. In this letter the following passage occurs:—“Don't delude yourself with the false hope that the uncertainties of the future will make black white. Truth shall not and cannot be so hid. I shall look carefully to that, and in the event of your persisting in your present evil course, the children, who as yet know nothing of all this, will, as they grow up, have to be told the plain truth concerning you, and be warned against you and your sinful untruthful ways; and painful though the duty be, I shall not have them either misled or contaminated by the neglect of it.”

Throughout the correspendence the defender uniformly adopted a tone of grave reprobation of his wife's alleged immoral conduct, exhibiting a more than ordinarily exhalted strain of religious feeling on his own part. At length, after using great and continued pressure, the latter obtained from his wife a “confession,” in the presence of one of the witnesses, of her intemperate habits. This confession was subsequently embodied in a written agreement, drawn up and signed by the parties for the purpose of regulating the family affairs. The so-called confession, however, it was explained by the pursuer, was emitted solely with the object of enabling her to stay at home with her husband and children—that being made by her husband conditional on the making of such a confession. That confession, she declared, was false, and ultimately, feeling the falsehood a burden on her conscience too heavy to be borne, withdrew it altogether.

Further details, as brought out in the course of the proof, must be inferred from the analysis of the

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evidence by the Lord Ordinary and by the Court at advising.

On 27th August 1873 the Lord Ordinary pronounced the following interlocutor:—“The Lord Ordinary having considered the cause, Finds that it has not been proved that the defender has been guilty of adultery with Elizabeth Heron, sometime nurserymaid in his family, as alleged on record: Therefore sustains the defences and assoilzies the defender from the conclusions of the action, except in regard to expenses, and decerns: Finds the pursuer entitled to expenses, of which allows an account to be given in, and remits the same when lodged to the Auditor to tax and to report.

Note.—.… He (the Lord Ordinary) does not hesitate to say that he feels it a relief that the judgment at which he has arrived, on the question of the defender's guilt of adultery, has rendered it unnecessary for him to form a judgment on the farther question raised as to the pursuer's habits, for there is a great conflict of testimony on that subject, and undoubtedly it is one which, on the evidence, is attended with great difficulty. This difficulty has been a good deal enhanced by the pursuer's confessions, made as she states to gain a temporary end, and her retractations of these confessions. Should the Court be of opinion with the Lord Ordinary, in the event of the present judgment being taken to review, that the charge of adultery has not been proved, it will be found unnecessary to consider the true inference to be drawn from the very distressing and lengthened correspondence between the parties and some of their relatives which has been produced, and which refers almost exclusively to the defender's averments in regard to his wife's habits. This correspondence but too plainly shows the extent to which domestic unhappiness and bitterness has unhappily arisen between parties who had for a number of years been remarkable for the affection and tenderness which they entertained and exhibited towards each other.

Coming to the charge of adultery, with which the Lord Ordinary has dealt by the preceding interlocutor, the pursuer's statement is that the defender during the year 1870 paid very marked attentions to a girl named Elizabeth Heron, who had come to be under-nurse in the family about the year 1868; that he frequently kissed her, and was guilty of other familiarities towards her, and that he afterwards carried on an adulterous intercourse with her from January to September 1871, in consequence of which she became pregnant and was delivered of a child in January 1872, of which he was the father. This girl, Elizabeth—or, as she was called, Ellie—Heron, was received into the defender's house when about fourteen years of age, and continued to reside there till October 1871, when she went or was taken to the house of her grandmother in Ireland, where she gave birth to her child, which died about nine days afterwards. She was examined as a witness for the pursuer, and stated that she was then about nineteen years of age, which makes her age about seventeen at the time when the adulterous connection is alleged to have gone on. The circumstances, as alleged and maintained by the pursuer to be proved, make the charge against the defender one of a peculiarly aggravated nature, for it is alleged not only that the defender used the influence which he had as a master, and which he acquired by kindly attentions, to enable him to seduce his servant in his own house, but that the intercourse between them took place while the girl was in bed with one or more of his young children, of whom she had charge.

The Lord Ordinary has approached the consideration of the proof in such a case with a strong conviction that the evidence must be very carefully weighed, and that in order to such a charge being held to be established, particularly against a man of hitherto unblemished character, the evidence of the girl, who is necessarily the principal witness in the case, must be found to be consistent, and not contradicted in any material particulars, and must be corroborated by some reliable evidence of familiarities or otherwise, to support her statements. If the statements of a witness so important be inconsistent, or be contradicted in any material point by other testimony on which reliance can be placed, her evidence as a whole cannot safely be made the ground of judgment; and if there be an absence of corroborative evidence bearing on the conduct of the defender, it would be unsafe to pronounce judgment against him which would substantially rest on the statements of the girl contradicted by him. It is a matter of obvious remark that there are perhaps no circumstances in which the proof must be more scrupulously weighed than in reference to a charge like the present, for it must happen in the nature of things that opportunities for intercourse will occur between a master and servant living for years together in the same house, and the servant may frequently be able with some show of reason to charge her master with the paternity of her illegitimate child, particularly where, as in the present case, she has not been known or seen to associate with men as visitors or acquaintances. Even in such circumstances the denial of alleged intercourse must be taken to outweigh the statement of a servant who has become the mother of an illegitimate child, and no real weight can be attached to such opportunities of intercourse as have naturally arisen from the relations between the parties. In the present case the Lord Ordinary is satisfied that, however little real love or affection has been latterly entertained by the defender towards his wife, he has been much attached to his young children, and found pleasure in frequently visiting them at all hours of the day when he was at home, in their nursery or sleeping place, where the girl Elizabeth Heron was in the discharge of her duty, and he thinks it would not be reasonable towards the defender to attribute frequent visits to the nursery to anything but his love of his children, and his desire to be with them.

Even taking up the case, however, from this general point of view, the Lord Ordinary has not found the decision to be free from difficulty. There are circumstances in the conduct of the defender in relation to this charge—just as there exist the circumstances to which the Lord Ordinary has already alluded in the conduct of the pursuer in reference to the charges made against her—which create suspicion and difficulty. In particular, the circumstances attending the obtaining of a letter from Elizabeth Heron, in which she stated that nobody at Nyeholm had anything to do with her trouble, and that nobody at Nyeholm was to blame, has weighed strongly with the Lord Ordinary, and occasioned a difficulty in the case which otherwise would not have existed. He has, however, after full consideration, come to the conclusion that the obtaining of this letter, however injudicious, has been explained so as to deprive it of the

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force which it otherwise might have had; and that, on the whole, the evidence is not such as to warrant the Court in holding that the adultery alleged has been proved.

The main evidence in support of the charge is of course the testimony of Elizabeth Heron, of whom the Lord Ordinary may say that she was a girl of modest appearance, who gave her testimony generally with an air of truthfulness, although at one part of it, to which reference will afterwards be made, she appeared to hesitate somewhat. Her statement is, that during 1870 the defender was in the habit of paying her attention and kissing her, and of going to the nursery for that purpose. In January 1871, the estrangement on the defender's part, arising, as he alleges, from his wife's habits, had reached such a point that the pursuer, by his desire, left the house to reside with her brother for some time. Some time after this, according to Elizabeth Heron's statement, the defender came to her bedside during the night, whilst she was asleep with one of the children in the bedroom of the house which the pursuer had occupied, and she then allowed him to come into bed and have connection with her. Acts of connection, she states, were repeated three or four times at night in the same room, at intervals of several days, and again upon two or three occasions in the inner nursery of the house, between May and August 1871, in which latter month she went to Troon. Her sister, Mary Heron, was, as she states, asleep in the nursery on one or two occasions when the defender came to her there at night, and on all the occasions of his visits to her she stated that he was in his night dress.

The other regular inmates of the house (besides the defender and his young children), all of whom have been examined, were Elizabeth Heron's sister, Mary, younger than herself, who was housemaid, Jessie M'Clymont, who was cook, and Miss Walker, who came in 1870 to be governess to the children, and ultimately took charge of the housekeeping for a time before the pursuer left the house. In addition to these witnesses, there were two persons who occasionally worked in the house, and remained there a few days at a time, who were also examined as witnesses, viz., Mary M'Kinnon, who used to wash and do house work, and Jessie Harkness, who first went to the house in August 1870 as a nurse, for eight days, when the pursuer had her youngest child, and was afterwards repeatedly back engaged in sewing. Of these persons, Mary Heron and Mary M'Kinnon were examined for the pursuer, while Miss Walker, Jessie M'Clymont, and Jessie Harkness were examined for the defender. The defender's witnesses negative all appearance of familiarity on the defender's part towards Elizabeth Heron; and it is to be observed that Jessie M'Clymont has for some time been away from the defender's service. The pursuer's witnesses, again, do not speak to acts of apparent familiarity to which, in the opinion of the Lord Ordinary, any importance can be attached. Mary Heron corroborates her sister in the statement that the defender repeatedly called her sister from the kitchen, after it became dark in the evening, to shut the shutters in the outer nursery, and that he followed her into the room, but this is one of those circumstances which might quite naturally occur without any improper motive on the defender's part. She further speaks to one occasion on which she heard Miss Walker make an exclamation, implying that she had seen some familiarity between the defender and her sister, but Miss Walker denies that anything of the kind occurred, and Elizabeth was not examined on the subject. The only other direct evidence of familiarity, or of suspicious acting on the defender's part, is given by Mary M'Kinnon, who states she was called to take away the infant on one occasion, on a Sunday, after it had been crying a good deal, and that she then left Elizabeth and the defender alone in the nursery. But, again, it would be attaching too much importance to this circumstance, as to which also Elizabeth Heron was not examined, to accept it as an opportunity made for indulging in familiarities. The pursuer further referred to a statement of M'Clymont, to the effect that she had observed the defender and Elizabeth Heron going out on several occasions, apparently about the same time, when the family were at the coast, but the Lord Ordinary is really unable to make anything intelligible of this evidence, and it rather appears, taking M'Clymont's statements on the subject as a whole, that this matter was mentioned only after Elizabeth had been removed from the house in a pregnant state, and when, owing to her determined silence about the paternity of the child, the parties were conversing and speculating as to who the father could be, and when, owing to the circumstance that Elizabeth had no male associates known to her fellow-servants, or coming about her, every circumstance connected with her relations towards the defender would naturally be brought up and discussed. The witness Mary M'Kinnon was examined in replication, to prove a statement made by Jessie M'Clymont on one occasion when she was at work and staying at Nyeholm, apparently some time before July 1871, for she says that she ceased to go to Nyeholm to wash after the Glasgow Fair two years ago, that is, after July 1871. This statement was to the effect that she had on one occasion seen the defender put his hand around Ellie and kiss her. and if this had been sworn to as a fact by M'Clymont it would have been corroboration of a material kind, much more in point than any of the evidence to which the Lord Ordinary has alluded. Whether it might have been sufficient, with the other proof, to have established the case it is unnecessary to consider, for M'Clymont distinctly denies that she made any such statement, and, at the best, the evidence can only be used to throw discredit on her testimony, and not as proof of the fact that such familiarity occured. At the same time, the Lord Ordinary thinks it right to add that he saw no reason to come to the conclusion that M'Clymont was untruthful, and he cannot regard it as proved that she made such a statement. She appears to have no particular personal interest in either of the parties, while Mary M'Kinnon has apparently received such kindness from the pursuer as may have created a bias in her mind. There is an absence of corroboration in regard to the use of familiarities, and the observation of the defender's counsel is not without weight, that if the defender was going through the house in the middle of the night in his night dress, and at times into the room in which not only Elizabeth, but her sister slept, there was a probability that this would have been noticed by Mary Heron, or some of the other inmates of the house, while there is no evidence to that effect. On the proof, accordingly, which the Lord Ordinary has considered up to this point, he is satisfied that

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the case has not been made out. A more important piece of evidence, however, is to be found in what occurred in regard to the letter of October 24, written by Elizabeth Heron, above referred to, and the correspondence which took place between Miss Walker, with the defender's knowledge, and the girl's aunt, Mrs Heron, in Ireland. It appears that Miss Walker, who was in charge of the household, had occasion to notice, in the course of the summer of 1871, that Elizabeth was not in her usual state, and repeatedly spoke to her on the subject, but always with the same result, viz., a denial that anything particular had occurred to account for it. In October, however, Miss Walker requested that she should be examined by Dr Stark, who was in the house, a request to which, she states, the defender at once acceded, and after that examination he stated his opinion that she was pregnant. Miss Walker and the other female inmates of the house then besought her to state who was the father of her child, but she denied that she was pregnant at all, and asserted that she had never had to do with any man. On her way to Ireland, to which she was accompanied by Miss Walker, as explained in the proof, she gave Miss Walker the letter or declaration, in which she stated that no one at Nyeholm was to blame for the condition in which she was, and down to the time when she parted with Miss Walker, and was left with her friends in Ireland, she seems to have continued to assert that her state must be the result of disease or illness, as she had never had to do with any man.

The account which Elizabeth Heron gives of the granting of this letter is, that the defender first asked for it, and suggested the terms in which she should write, which are worthy of notice, viz., that he, the defender, had nothing to do with the state in which she was, and that no one in Nyeholm had to do with her state—but that she refused to give the letter—that he subsequently pressed her to do so, and that Miss Walker having also asked for such a letter, she agreed to write it, but was afterwards told by the defender that she ought not to write it in the house, but after she was away. Elizabeth Heron does not say that the terms of the letter were dictated or suggested to her by Miss Walker in Ireland, but that she wrote it from her recollection of the terms suggested by the defender. It will be noticed, however, that the letter as written does not refer to the defender personally, as she states he requested it should do, but refers to persons at Nyeholm generally, being the terms which Miss Walker states she had suggested. Miss Walker's evidence is to the effect that she suggested that the letter should be obtained, and asked for it, but that Elizabeth refused repeated requests to give it, and afterwards voluntarily proposed to give, and gave it, on her way to her destination in Ireland. Jessie M'Clymont also states that she asked Elizabeth two or three times to write the letter, but she said there was no use in doing so.

For the pursuer it is maintained that even taking Miss Walker's account to be correct, the taking of the letter at all is a most material and suspicious circumstance, sufficient with the other evidence in the case to establish the charge against the defender. It is said that the defender was thus preparing his defence before he was accused, in the full knowledge that there was too good ground for the charge. On the other hand, it is said for the defender that the proposal origi nated with Miss Walker, and was made on her part in consequence of a passage occurring in Mr Biot Edmontson's letter to the defender's brother, Mr J. S. Symington, of 21st July 1871, in which he refers to a statement which had been made to him as having come from some servant at Nyeholm, implicating the defender as being ‘in the way of practising certain familiarities with one of his servants.’ Miss Walker states that she regarded this not only as a charge against the defender, but as a slur upon herself in the management of the house, and that she desired to have the letter in the belief that a further charge would be made, and in order to meet it. It is material to observe, that the letter which was asked for, and obtained, does not contain any statement which the girl had not herself again and again made, and, injudicious as it was to take such a letter in the circumstances, the Lord Ordinary is of opinion that there is enough to account for this being done without assuming the defender's guilt, or even taking it as a circumstance of sufficient weight, along with the other evidence, to establish the charge against him. There had been charges and recrimination, angry interviews between the pursuer and her brother on the one hand, and the defender on the other, and charges and discussions in presence of Mr Leckie, and the explanation of the obtaining of this letter is not an unnatural one in the light of all this, and of the statement which Mr Biot Edmonston had made, and when the state of mind into which the parties had got is considered.

The correspondence between Miss Walker and Elizabeth Heron, founded on by both parties, is peculiar. The pursuer's counsel maintains that there runs through it a suggestion that Elizabeth should be induced at all hazards to assign the paternity of the child to some one so as to free the defender, and as an inducement to this that pecuniary help could only be given when this was done. For the defender, it is pleaded that the terms of the correspondence do not justify this observation, and that Miss Walker's reiterated, and almost imploring entreaties that the girl would speak the truth, show how far she was from thinking that the defender had been guilty of the charge now made against him, or that there was any idea of such a charge being made by the girl. Unfortunately, there appears to the Lord Ordinary to be expressions in the letters which admit of either view being maintained, but on the whole he thinks the pursuer's view is not justified. It necessarily involves Miss Walker as acting in concert with defender to avert a charge which she believed or strongly suspected to be true, and as being anxious to get a false account, if possible, from the girl, to be used by the defender. If this had been the fact, the Lord Ordinary thinks there would have been some evidence of an attempt on the part of Miss Walker or the defender, at some time in conversation with the girl, to get her induced to assign the paternity to some known or unknown person, but nothing of the kind seems to have occurred, and it is strongly against the pursuer's view, and in favour of that maintained by the defender, that Miss Walker, not only in the correspondence pressed to have the name of the father of the child disclosed, and begs-above all she will tell the truth, but that from the time when pregnancy was announced, and on the journey to Ireland, she constantly begged the girl

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to say who was the father. On this part of the case the Lord Ordinary may in passing remark, that it is a point in favour of the defender that although he must have had reason to know or strongly suspect the state in which the girl was, if the evidence be true, long before October, he did not attempt to have her quietly removed from the house, and avert the scandal which her state was certain to produce.

Before adverting particularly to the matters on which Elizabeth Heron has been contradicted by other witnesses, and which to a material extent have influenced the mind of the Lord Ordinary in the decision at which he has arrived, he may notice, as the only other matter which has appeared to him of importance in the proof against the defender, the circumstance that on two occasions before Elizabeth Heron's pregnancy had been made known, or at least had come to the knowledge of the pursuer, allusion had been made to intimacy or familiarity between him and one of his servants. The first of these allusions is contained in Mr Biot Edmonston's letter in July 1871, just referred to. The second was at the interview between the pursuer and defender with Mr Leckie on 31st October, when the remarkable agreement between them, which has been produced, was entered into and signed. These two references to familiarities, before the prgnancy was declared, or at least known to the pursuer, tend to the inference that some conduct on the defender's part had been observed which gave rise to suspicion against him. The Lord Ordinary has, however, felt in regard to this subject that he is not entitled to proceed on such indirect evidence, and all the more so that there is nothing to show with any degree of distinctness what the familiarities referred to were. The statements thus made cannot of course be regarded as proving that familiarities occurred. Mr Biot Edmonston refers to some third party as his informant. It does not appear whether Elizabeth Heron was the servant referred to. Mr Edmonston's informant was not the witness M'Kinnon, for she states that she did not speak of what M'Clymont had said to her until quite recently, and Mr Edmonston, when examined as a witness, was not asked to give any explanation of the matter referred to. Then, although the pursuer spoke specially of Ellie in her remark made in presence of Mr Leckie, the particular incident which gave rise to it is not explained, and she expressed herself satisfied with her husband's explanation. The pursuer's counsel adverted to Mr Leckie's statement, as showing that he had not been quite satisfied with the defender's manner of denial when this subject was spoken of; but the Lord Ordinary cannot say that, in a question of this kind, the evidence of Mr Leckie, who would not say that the defender really did hesitate in his denial, can be regarded as at all material. The same observation applies to the circumstance that neither Mr Leckie nor Mrs Slimon was at once informed of the cause of Elizabeth Heron's leaving Nyeholm. It would have been better that the truth had at once been told; but it was not unnatural, in the circumstances, that this should be kept back. This evidence, like that of the fact that the letter was taken from Elizabeth Heron, is fitted to create some suspicion, but does not supply such material corroboration of the pursuer's case as in the opinion of the Lord Ordinary is necessary in order to make out the grave charge made against the defender.

Accordingly, even if there had been no material contradiction of the evidence of Elizabeth Heron, the Lord Ordinary would have held that sufficient proof in support of the charge to warrant the decree asked had not been adduced. He is however farther of opinion that there has been contradiction of Elizabeth Heron sufficient to throw doubt on her testimony, and to make it unsafe to place implicit reliance on her statements: The point to which the Lord Ordinary particularly refers is her absence from Nyeholm on the evening of the first Monday of May 1871. It is unnecessary here to go in detail into the proof. Mrs Harkness, Miss Walker, and Jessie M'Clymont state quite distinctly that on that evening she remained out beyond her usual time of about seven o'clock for several hours; and it appears from the evidence of the two latter that she gave different and unsatisfactory accounts of the reason of her absence. This occurrence is one which she could not have forgotten, and in answering the questions on this subject her manner was not apparently so candid as throughout her examination otherwise. The Lord Ordinary is satisfied that the occurrence took place, and, besides being somewhat suspicious in itself, her denial of it and failure to give any explanation are calculated to throw doubt on her entire truthfulness, and to make it unsafe to proceed on her evidence without at least a much greater amount of corroboration than is to be found in the case. Along with this, and as a part apparently of the same incident, her denial of having had any mark upon her dress which attracted notice, and of which she was anxious to get rid, are also important, and calculated to shake confidence in her evidence as a whole. She is also contradicted by Jessie M'Clymont in regard to a conversation between them in regard to a joiner who was working about the house. The counsel for the defender farther founded on the evidence of Bridget Heron as showing that Elizabeth had made different statements in Ireland from those given in evidence as to the alleged intercourse between her and the defender; for it appears from Bridget Heron's testimony that Elizabeth had stated that the defender had first had connection with her while she was making a bed in a room upstairs, and had spoken of the defender as a person who seldom was free from drink. But while such statements are not to be altogether thrown out of view, the Lord Ordinary does not attach the same importance to them as to the other matters above alluded to, because Bridget Heron, although apparently a decent, kindly woman, did not seem to be a person of much accuracy, or on whose recollection of particular expressions reliance could be placed.

On the whole, therefore, the result at which the Lord Ordinary has arrived is, that the evidence of Elizabeth Heron cannot be relied on as establishing the charge against the defender, and that, even if she were uncontradicted, and her testimony could be accepted, if sufficiently corroborated, sufficient corroborative evidence has not been adduced, though there are circumstances sufficient to create suspicion against the defender.

Having come to the conclusion that the charge of adultery has not been established, the Lord Ordinary has refrained from even forming an opinion, from the evidence and correspondence in the case, as to the truth or falsehood of the charges made by the defender in reference to the pursuer's habits.

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The Lord Ordinary has found the pursuer entitled to expenses, because she would have been open to the plea of condonation if she had renewed her intercourse with the defender in the knowledge of the circumstances which had transpired, and because he thinks the circumstances justified her in having the judicial investigation which has taken place, if she desired to do so.

At the close of the argument for the defender it was stated he would be quite willing that a decree of separation should be pronounced of consent, if that could competently be done, he being at the same time acquitted of the charge made against him. It is obvious, however, that the Court has no such power, at least in the present action. The Lord Ordinary regrets that he has not the power to grant a decree of final separation, and at the same time to secure to the pursuer reasonable access to her children, and association with them. It is impossible to read the proof and the correspondence without coming to the conclusion that the parties cannot again live together in harmony. The pursuer was treated during her later residence at Nyeholm more like a prisoner in solitary confinement than a wife in her own house, and this treatment, coupled with the defender's persistent refusal to allow the pursuer that access to her children to which she is entitled, are sufficient, in the view of the Lord Ordinary, to show that the pursuer cannot again live happily with him; and at the same time, even on the assumption of the truth of the defender's charges against the pursuer, take away a good deal from the weight of the evidence given to the character of the defender as a man of high or good feeling.”

The pursuer reclaimed to the First Division of the Court.

In point of law, the main question in the case, and indeed the issue on which the parties agreed the real interest turned, was the question of the custody of the children in the event of a separation.

On this point the pursuer cited the cases of Ketchen, 8 Macph. 952; Nicolson, 7 Macph. 818; Harvey, 22 D. 1198; Lang, 7 Macph. 445; and argued that the rule recognised in these cases was applicable to the present case, and that the defender should be refused the custody of his children.

The defender argued—(1) that the effect of the cases cited by the pursuer (so far as applicable to the present case) was, that unless there was reason to fear cruelty or immoral training, the Court will not interfere with the natural guardianship of the father. The case of Stuart, 8 Macph. 821, (Lord Deas opinion, p. 830), confirmed the rule adopted in Lang ( ut sup.). With reference to the case of Ketchen ( ut sup.) it was argued that there the case was one of aggravated adultery, and was therefore quite special; (2) that in this case the father was a model father, and any sin he might be found to have been guilty of was secret and not persisted in.

At advising—