Scottish Court of Session Decisions

This was an action of declarator and putting to silence at the instance of Robert Gardner against Mary Gardner; and the summons concluded for declarator that the defender was not the child of the pursuer, and for decree putting her to silence in asserting or representing directly or indirectly that she was so. The pursuer in his condescendence set forth that in August 1850 he was married to Miss Brodie, with whom he had never previously had any intercourse. The second article of the condescendence was as follows:—“About a month previous to the said marriage Mrs Gardner, then Miss Brodie, informed the pursuer that she feared she was with child, but did not declare at that time to whom. As she was not quite certain as to her condition, it was arranged between the pursuer and her that she should consult the late Dr Thatcher of Edinburgh. This she did in the course of a few days afterwards, and Dr Thatcher confirmed her suspicions. Notwithstanding of this state of matters, it was arranged that the marriage between the pursuer and her should go on, and accordingly it took place, of the date before mentioned, at Cademuir.” On 16th October 1850 Mrs Gardner was delivered of a female child (the defender), and the pursuer arranged with Dr Thatcher, now dead, for the child's removal, and its maintenance at the pursuer's expense. The pursuer averred that about a year after the birth of the defender, Mrs Gardner, when very ill, told him that John Laidlaw was the father of the child, a man who was shepherd to her brother in 1849 and 1850; and further, that “in or about the winter previous to her marriage he had illicit connection with her on two or more occasions, and the defender is the fruit of that intercourse. On one of these occasions the intercourse took place on Cademuir Hill, near Peebles, and on another occasion at the farm of Cademuir.” Finally, the pursuer stated that he had maintained Mary Gardner to avoid scandal and save his wife's character, but that recently the girl's demands had become so extravagant that he had been, in self-defence, obliged to raise this action.

The defender averred that she was the child of Mr and Mrs Gardner, and denied the truth of the confession said to have been made by Mrs Gardner.

The Lord Ordinary appointed a proof, and the following are the more important parts of the evidence:—

The following letters between Mrs Gardner and Laidlaw were put in evidence:—

“Letter, Mrs Gardner to Mr Laidlaw.

Gattonside, Friday night.

Dear Sir,—Mr Gardner has got a threatening letter to-day, and I send you a copy of what I think you should write out, and sign and send it by return of post. The sooner that things are settled—for I think I cannot stand it much longer.—Yours truly,

E. Gardner.

P.S.—By doing this it will be the only thing that will bring it to a settlement soon.”

Copy letter referred to.

Peebles, March /74.

Mrs Gardner,—I acknowledge myself to be the father of the child you had, born in the year Eighteen hundred and fifty.”

“Letter, Mr Laidlaw to Mrs Gardner.

Peebles, March 12th, /74.

Mrs Gardner,—You desired me to write by return of post, but I have got such an astonishment that I scarcely know what I am doing. But I would have thought if you were that way to me you would have told me before you left Cademuir; at least you ought to have done so, for the truth saves one from much trouble afterwards. I cannot deny that we met that day on the hill. But I did not waylay you, for we met by appointment when you were going to Peebles. It was a cold day like this, and we sat down with the plaid about us, but we had better kept walking. So if you sware the child was mine, I will not deny it, tho' I mind neither the month nor year.—I am, your obt. st.

J. L.

P.S.—If my wife hears of it I may take the road; but I did not know, or I would never have had one.”

Mrs Gardner, inter alia, deponed—“Within a short time of the marriage I found it necessary to make a communication to my husband. I thought it my duty to make that communication to him. I don't think it was more than a fortnight from our marriage when I made the communication, but I cannot exactly state the time. The communication was that I had reason to believe that I was in the family way. I was afraid of that, and was in great distress at it. I was in the family way, and this came about through my having met a man—John Laidlaw—who had come to my brother's house on Cademuir Hill seven or eight months before my marriage took place. Improper familiarity took place between him and me once, and another attempt was made in the barn at Cademuir. That attempt was not successful. The first occasion was at Cademuir Hill, where I had connection with him. Previous to my marriage I never had at any time any undue familiarity or connection with my present husband. From the time when Laidlaw had connection with me at Cademuir Hill my usual courses did not come on at all. After I had told Gardner that I was afraid I was in the family way, he agreed to go on with the marriage, which took place as appointed. My family did not come to know anything of the matter. With the exception of Laidlaw, no one had ever connection with me before my marriage.”

The pursuer, inter alia, deponed—“About four or five weeks before I was married she made a communication to me. (Q) What was it?—(A) That she was afraid she was in the family way.…That fact caused me great distress. She was also very much distressed; and after considering a little time we agreed that the marriage should take place, and that we should try to smother up the thing as much as possible. Up to the date of our marriage I had had no improper intimacy with her. I did not meet her in any clandestine way at all. I never met her in my life at Cademuir Hill. During that winter, when I stopped at Crookston along with Mr

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Middlemas, I walked along the road with her in company with others. That was when she had been at a party at Crookston in the winter of 1846–47, three years before we were married. I never had carnal intercourse with her previous to our marriage. I took no improper liberties with her, nor did I attempt anything of the kind.… At the time of our marriage my wife had not informed me who was the father of the child. (Q) When did she inform you?—(A) Fully a year after our marriage. (Q) How did she come to inform you?—(A) She was very unwell, and thought she was dying at the time. She gave me the name of the father then—John Laidlaw. (Q) Had you and she spoken on the subject until this time, when she thought she was dying?—(A) We may have spoken on the subject, but she never mentioned the name of the father. She said that she had been waylaid by a blackguard on the hill and abused When John Laidlaw was at Cademuir I knew him to speak to. (Q) Was he on intimate terms—I don't mean improper terms—with Mrs Gardner when he and she were there?—(A) As a shepherd living in the house in which she was the farmer's sister, they were just on ordinary terms, but not on intimate terms by any means so far as I am aware. Mrs Gardner, although the sister of the farmer, did a good deal of housework, and was a good deal thrown amongst the servants in the course of her work.”

John Laidlaw, inter alia, deponed—“I am a flesher in Peebles. I am fifty-eight years of age. I was a shepherd at Cademuir for ten years, from 1846—Mr Brodie being my employer. He was Mrs Gardner's brother. Mrs Gardner was at that time residing with her brother. (Q) Had you ever carnal connection with Mrs Gardner?—(A) No. (Q) Had you carnal connection with Mrs Gardner before she was married—as Miss Brodie?—(A) No; never. I never had anything like connection with her. I never tried to have such connection. I have often spoken to Mrs Gardner. I have often met her and walked with her alone about the house. I have been in the barn with her alone. (Q) What passed on that occasion?—(A) Nothing but just cracking. I have been on Cademuir Hill with her alone—more than once—may be eight or ten times. There has been snow on the ground when I have been with her there. I have sat down with her on the hill. It is likely I would have a plaid with me on some of these occasions. I generally had one. I have received four or five letters from Mrs Gardner within the last few years. I have preserved two of them. I have also written letters to Mrs Gardner, but I cannot say how many. (Shown second letter printed above)—This is written by me. (Letter is read to witness by counsel for pursuer)—It is true that I met Mrs Gardner on Cademuir Hill, and that we met by appointment. (Q) What do you mean by saying to Mrs Gardner that she ought to have told you before, for the truth saves one from much trouble afterwards?—(A) I had no meaning in it at all. (Q) Had you no meaning in the letter generally?—(A) No; none further than that she could not give her oath that it was mine. (Q) What was your purpose in writing the letter?—(A) She sent one before. (Q) What was your purpose in writing this letter?—(A) Oh, just writing it.

I had no purpose for it further than denying the child. (Q) Is there a word of truth in the letter from beginning to end?—(A) None but meeting by appointment. It is true that on the occasion to which the letter refers I sat down with Mrs Gardner and the plaid about me. (Q) What do you mean by saying you had better had kept walking?—(A) Better never had conversation with her; because she gave me the slip in the hinder end, and set off. (Q) How was it better that you should have kept walking?—what harm was done by your sitting down?—(A) No harm. (Q) Then what do you mean by saying you had better kept walking?—(A) I had no meaning in it at all. (Q) Then what do you mean by saying immediately after that, ‘If you swear the child is mine I will not deny it’? —(A) I knew she could not swear it was mine. (Q) Do you mean that if she did swear it was yours you would deny it or not?—(A) I would deny it. (Q) Did you intend to deny it by this letter?—(A) I could do no other thing but deny it. (Q) When you wrote this letter was it or was it not a lie to say that you would not deny the paternity of the child if she swore it was yours?—(A) I knew she could not swear it. (Question repeated)—(A) I knew she could not swear it.…(Q) Did you say to Mr Blackwood that you did not think you had had connection beyond twice or thrice?—(A) No, I did not use those words; I said I never had had anything to do with her—no connection with her. (Q) Did you tell him that on one occasion you had had your will of Mrs Gardner?—(A) I said that I might have had if I had “likit.” (Q) What led you to say that?—(A) I cannot put it into right words. (Question repeated.)—(A) I don't mind of saying that to Mr Blackwood. I told him to write what he liked. By the Court—(Q) Then why did you say that you had used those words to Mr Blackwood?—(A) I don't recollect saying it. (Q) Did you or did you not say that you might have had your will of her if you “likit?”—(A) I thought so. (Question repeated,)—(A) I am not certain. Examination continued.—(Q) Did you say any words like those?—(A) May be something to the same import. (Q) Is it true that you might have had your will of her if you had liked?—(A) I never tried, but I think one might have had. I just thought that; but if a woman puts her arm round your neck and kisses you, would you not think it? (Q) When did that happen?—(A) Several times about the fireside in the kitchen at Cademuir; it also sometimes happened outbye on the hill. I have kissed her. (Q) Did you often kiss her?—(A) Oh, gey often, I daresay; I cannot tell how often. I have put my arms round her. (Q) Were you sitting together on any of those occasions?—(A) No. (Q) Were you standing, or what?—(A) Yes, standing or sitting either. I have seen us lying, too, on the hill. (Q) Had you a plaid about you when you were lying on the hill?—(A) Yes. (Q) Was the plaid round both of you?—(A) Yes. (Q) Did you kiss her more than once in that situation, with the plaid round both of you, lying on the hill?—(A) Yes, but I cannot say how often—three or four times, I daresay.… I was courting her for a while. I expected at one time that she would become my wife. She received my advances quite pleasantly. There was no mistake

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about my courting her.…We met one day on the hill—it was the last time we met on the hill. It is true, as the letter says, that we met by appointment. Her purpose in making an appointment was to get a private crack there. The private crack was to be about marriage. The day was a cold one. It is quite true that we sat down. (Q) Did you have the plaid about you?—(A) Yes. We might be sitting together an hour, during which we cracked about different things which I cannot now specify. I had my arms round her neck. (Q) Did you kiss her?—(A) Oh, certainly. No other endearments took place.”

The defender, inter alia, deponed—“On that occasion my mother told me how long she and Mr Gardner had been courting—for between two and three years before they were married. She told me that she had an appointment with him at one time, and that he had tried to take advantage of her at that appointment. (Q) You mean to take improper familiarities with her? (A) Yes; and she told him if he was a man at all he would let her alone, as she had been unwell. He did let her alone, and she got away from him and went away. She said that no correspondence took place between them for some time after that, but that they drew up again. She also told me that Mr Gardner had met her again by appointment. She had an appointment to meet him one night, and went to the appointed place at the appointed time, the place being Cademuir Hill. When she went there she met a man with a plaid on. She said that the man had never spoken to her, and that he had got the better of her; and that after that he went away, and that she went along the moor a ‘bittie,’ and met Mr Gardner, who asked her what she thought of herself now. Her reply to him was, ‘As much as ever,’ because she said that he (Mr Gardner) was the man, and no other. (Q) The man who had connection with her?—(A) Yes. She also said that he had often said it was not him. I said to her, ‘Do you believe it was Mr Gardner?’ She said ‘Yes.’.…(Q) You told us about the meeting between Mr and Mrs Gardner by appointment on Cademuir Hill, and you told us that Mrs Gardner said she would write and tell you about that?—(A) Yes. She did write me, for I received a letter three weeks afterwards. I burned that letter. It stated the same things that I have told you to-day. (Q) Did Mrs Gardner ever say to you in the presence of anybody else that Mr Gardner was your father?—(A) No. (Q) Did you ever tax her in the presence of anybody else with having admitted that to you?—(A) No; I was anxious to ascertain whether Mr Gardner was my father or not, without having to come into a court of law about it.

Mr Kay, who had been Free Church minister at Loanhead for six or eight years, and had been acquainted with the defender during that period, inter alia, deponed—“I first heard about her parentage about the year 1872. From that time until now I have taken an interest in the inquiry. I have had several meetings with Mr Gardner on the subject, and one or two with Mrs Gardner. I have also seen Laidlaw………Mrs Gardner began to tell the story that she was met on the moor by a gentleman, gentlemanly dressed, and with a plaid about him; that this man muffled up in a plaid came up and forced her; that she had struggled; then rose and went away. That was the substance of what she told me. I at once said—‘There is a contradiction here between Mr Gardner and you, for he said he was a poor man not to be found in this part of the country, and you say he was a gentlemanly man.’ She wished to back out of it, and I appealed to Mary by saying, ‘Mary, were not these your mother's words?’ Then she acquiesced in it. (Q) Did Mr Gardner say anything about his having said he was a poor labouring man? —(A) He did ……… I told Mr Gardner what Mary had said, and amongst other things that Mrs Gardner had said that he had attempted to force her once, and also a second time. To which he returned answer and said, ‘Well, I confess having tried it once.’ (Q) That was that he had endeavoured before marriage once to have connection?—(A) To force her. (Q) To have connection?—(A) Yes. (Q) What was it you understood he had tried to do—to commit a rape, or to have connection with her? —(A) The position I put is this—‘I am told that you had courted Mrs Gardner, and had frequent meetings with her, and that on one occasion you tried to force her, when she said she was unwell, and you did'nt succeed. On a second occasion you had forced her, having trysted her to a different place on the moor, and that you had succeeded only too well the second time.’ He immediately added—‘Well, I confess to having tried it once.’ He didn't confess to having been successful.…… I had gone down and seen Laidlaw, to satisfy my own mind as to whether he was the father or not. That meeting with Laidlaw was also prior to the meeting with Gardner when £1000 was offered. My conversation with Laidlaw took place in a bedroom in his own house. We had a good deal of conversation about the matter, and I remember distinctly that, after talking about a number of things, he looked me broadly in the face, and said, ‘If he took the child home to Traquair Knowe at first, there would be nought of this now.’ He also said he could not take with the paternity of it; that he could not say he was the father. (Q) Did he admit having connection with her?—(A) No; he never admitted having carnal connection with her. That was the kind of way in which he put it. He said he had had nothing more than ‘toozling.’ (Q) Did he deny the paternity?—(A) Yes; I am perfectly certain of that. (Q) In what way did he put the denial?—(A) I put the question to him—‘Do you take with this child and say it is yours?’ He said, ‘No, he he could not say that.’ I then said, ‘Do you repudiate the paternity?’ He said he did repudiate the paternity. I think that is the substance of what was said, and the words.”

The Lord Ordinary pronounced this interlocutor:—

“Finds, as matters of fact, (1) that the pursuer was married to Mrs Eliza Brodie or Gardner in August 1850; that about six weeks after the marriage Mrs Gardner gave birth to a child, and that the child to which she then gave birth is the defender in the present action; and (2) that the defender never had carnal intercourse with his wife prior to their marriage, and consequently that the defender is not, and could not be, the child of the pursuer:.… Finds, as

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matter of law, that the facts being as above set forth, the defender is not entitled to assert or otherwise represent that she is the child of the pursuer: Therefore repels the defences, and finds, declares, and decerns in terms of the conclusions of the summons: Finds in the circumstances no expenses due, and decerns.

Note.—This is a remarkable case, and affords a new illustration of the old saying, that ‘truth is sometimes stranger than fiction.’

The pursuer here seeks for a decree finding and declaring ‘that the defender is not the child of the pursuer,’ and decerning and ordaining the defender ‘to desist and cease in all time to come from asserting or otherwise representing, directly or indirectly, that she is the child of the pursuer.’ The defender resists such a decree upon the ground that she is, or at least in the circumstances must be held to be, the child of the pursuer.

In the outset it may be premised that there is no doubt whatever that the defender was born after the pursuer's marriage, and that she is the child of the wife of the pursuer. The defender was taken away the day, or the next day but one, after her birth; and for more than twenty years the child was not seen by the mother, nor the mother by the defender. But the identity of the defender with the infant to which Mrs Gardner gave birth, in the circumstances to be immediately explained, is abundantly proved, and indeed has never been disputed. The question, and the only question, on which issue has been joined is—‘Whether that child is not also the child of the pursuer, the husband of Mrs Gardner.’

Similar questions have often been raised, and almost as often decided. There is authority touching such cases as old as any that can be adduced in any department of the law; and whatever may be said of individual decisions, or the dicta of individual judges, it is the fact that the law upon this subject has remained unchanged. The birth of a child in wedlock has always been presumed to be a lawful child—in other words, to be a child of the husband of the mother. But in Scotland there never was a time when this presumption might not be overcome, provided the proof was sufficient. Each case, therefore, as it arose was a case of circumstances; and the result depended on the strength or weakness of the facts which were established.

The strength of the presumption, it may be added, is itself affected by circumstances. There are expressions in some of the authorities which seem to imply that the presumption of paternity resulting from marriage with the mother previous to the birth of the child arises only when the marriage existed at the date when the child must have been begotten. But this, the Lord Ordinary thinks, is an erroneous view of the matter. Presumption there is when the child is born in wedlock, however soon the birth may have supervened. And, obviously, there is reason in this rule. Take the present case by way of illustration. The pursuer was married in August 1850. The defender was born in the ensuing October; the pursuer knew before the marriage that his wife was pregnant; and the fact that he married the mother of the defender, knowing at the time that she was with child, seems, according to every reasonable consideration, to suggest a presumption almost, if not altogether, as strong as would have existed if the pursuer had happened to be the husband of the defender's mother at the time of the defender's conception. No doubt the reasons for the presumption are not the same in the two cases. In the present case a moral element is the source from which the presumption is elicited. Can it be otherwise than presumed that a man who marries a woman knowing that she is pregnant, is the father of the child? We are so constituted that we cannot help concluding that he is, unless the contrary be indubitably established. In the other case the presumption results from that which is taken for granted, the intercourse following upon marriage. But it is really almost, if not altogether, as conceivable that the intercourse to which the conception is to be ascribed is not intercourse with the husband, as that a man who knew his wife was pregnant when he married her should not have had intercourse with her before marriage. The Lord Ordinary, therefore, regards the present case as one within the operation of the ordinary rule, that a child born in wedlock is to be presumed the child of the husband of its mother. The defender was born in wedlock; and so she must be held to be the child of the pursuer, unless the contrary shall be proved to the satisfaction of the Court. Has the contrary been so established?

In dealing with this question the Lord Ordinary observes in the outset that there is the oath of the pursuer, and there is also the oath of his wife, the mother of the defender, that there never was sexual intercourse between them until after their marriage. Mrs Gardner further swears that a man named Laidlaw, who is now a flesher in Peebles, but who, at the time when the defender was begotten, was a shepherd in Cademuir, in her brother's family, where she resided, is the father of the defender; and she describes the place where, and the date at which, the one act of copulation which produced her pregnancy occurred. Laidlaw was called as a witness for the pursuer; and if he, upon oath, had corroborated Mrs Gardner's testimony, there would have been in the present case all the proof which, even in the days when the rule pater est, &c., was most stringently applied, seemingly was required. But Laidlaw denied that there had been sexual intercourse between him and the mother of the defender; and consequently what has in the circumstances to be considered is, Whether, without his evidence, or to put the thing more strongly, despite of his evidence, the case of the pursuer has been established? Laid-law's denial, the Lord Ordinary thinks, cannot be regarded as conclusive. Indeed, nothing said by Laidlaw can, in the opinion of the Lord Ordinary, be taken as true, because he so swears. His deposition abounds with contradictions as well as with palpable falsehoods, and is in most important particulars a flagrant example of wilful prevarication. His letters to Mrs Gardner, which were put before him, and upon which he was examined, are not of themselves evidence that the statements they contain, and the inevitable inferences these statements suggest, are true; but they prove—and in this way they are by the general tenor of his deposition amply corroborated—that he is a witness whose sworn testimony is not to be believed. The consequence is, as the Lord Ordinary conceives, that Laidlaw's evidence must in effect be disregarded.

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Corroboration of Mrs Gardner's testimony it certainly is not, and as a contradiction, which probably it was intended to be, it is self-condemned. All this, however, is subject to the observation that Laidlaw's conduct when first informed of the defender's claim to be recognised as the child of the pursuer, and appealed to for an acknowledgment that he was the father, is something like real evidence of at least the probability of the story told by Mrs Gardner. She and Laidlaw had not met since her marriage to the pursuer in 1850, and there had, neither directly nor indirectly, been any communication between them till the first of Mrs Gardner's letters relative to the defender's pretensions was sent to him, less than two years ago. That the appeal which was then made should have been ventured upon if he could not have been the father of the defender is very unlikely, and it is far more unlikely that on such a supposition he could or would have answered that appeal in the way he did. He in effect admitted—for his letters will bear no other interpretation—that there had been intercourse; but he refused, without further assurance, to admit that the defender was his child. The position he took up was simply this—‘Intercourse there was, but it does not follow that the defender was my child. Satisfy me that she is, and the paternity will be admitted.’ Strange it would be—very strange indeed—that a man should be selected, and a man, too, who on his own showing had been in former days a lover—who, when asked to declare that the defender was his child, should meet in such a way such a request—if, at the time the defender must have been begotten, that had not occurred between him and Mrs Gardner to which conception might be ascribed. Therefore—though the words of Laidlaw upon oath are not—the real evidence of his conduct is, the Lord Ordinary thinks, a corroboration, at least to some extent, of what has been sworn to by Mrs Gardner.

Nevertheless, there is not his oath in corroboration, and so the consequence of the want of that must next be considered. The want is not necessarily a defect fatal to the case of the pursuer. Every such case, as has already been observed, is a case of circumstances; and if the evidence presented to the Court satisfactorily proves that the defender is not the child of the pursuer, judgment to that effect not only may, but must, be pronounced., Bearing in mind, then, that there are the oaths of the pursuer and of Mrs Gardner, it remains to be seen whether, in addition to the element of corroboration afforded by Laidlaw's conduct which has already been mentioned, there is not something more, and that something of the most conclusive kind, by which the case of the pursuer is supported.

The pursuer was married to Mrs Gardner in August 1850. His home was then at Traquair Knowe, but the defender, who was born six weeks after the marriage, was not born there. Nor .was this an accident. It was prearranged. Mrs Gardner came to Milne's Temperance Hotel in Edinburgh, and there she gave birth to her child. The day after, or the next day but one, the infant was taken away. Everything connected with the event was, to use the words of Mr Milne, the hotel-keeper, ‘shrouded in mystery.’ And so Well was this mystery maintained, that for more than twenty years neither the defender, nor the nurse who took her away, knew or suspected where either parent was to be found. Mother, indeed, as well as father, remained to the defender, to her nurse, to those among whom she lived, to every one who took an interest in her, utterly unknown. Board for the defender was paid quarterly by Dr Thatcher, the money being provided by the pursuer till the defender was fourteen years old. Then she was left to provide for herself, which she did for more than six years by working in one of the mills near Loanhead. Such is the defender's history. On the question whether this treatment was right or wrong, opinions may differ; but the Lord Ordinary thinks opinions cannot differ as to the difficulty, if not the impossibility, of reconciling it with the idea that the defender is the child of the pursuer, or that there had been intercourse between the pursuer and the mother of the child in which its conception might have originated. Acts are often as strong evidence as words; and, in the opinion of the Lord Ordinary, the conduct of the pursuer testifies as strongly as his oath that the defender is not, and could not be, his child.

If the pursuer and Mrs Gardner are to be believed, the case of the pursuer is complete; but there are circumstances, on the strength of which the counsel for the defender contended, in the course of an argument remarkable for its ability, that even allowing for such elements of real or supposed corroboration as exist, the testimony of the pursuer and Mrs Gardner on the cardinal point is not to be trusted. As regards the pursuer, it was said that the idea of his marriage in the knowledge that Mrs Gardner was with child is so inherently incredible that, whatever be the confirmatory evidence, it must be rejected. Improbable it is, certainly, but not necessarily incredible. In affairs of love it has often been said—and the saying has often been verified—‘there is nothing too strange to be true.’ The pursuer had long courted the woman who is now his wife; he was deeply in love; and though he was shocked by the announcement that she was with child to another man, his attachment remained unbroken; and this proved stronger than his self-respect. He acted under a double impulse. His affections could not be extinguished; and, moreover, he both desired and hoped that if he married his sweetheart things could be so arranged that her shame, which otherwise must inevitably have been divulged, and his own weakness, would remain concealed. The fact is, that for twenty years both were concealed. Not a relative, not a neighbour, not one interested in the pursuer or in Mrs Gardner, knew or imagined what has now been revealed to the world. This expectation, therefore, was not unreasonable; and, consequently, it cannot be unreasonable to conclude that it might be entertained.

The payments made by the pursuer for the support of the defender during the first fourteen years of her life, and the offer of a large sum provided her claim to be considered his child were withdrawn, were also, in the argument of the defender's counsel, alleged to be virtual confessions of paternity. The Lord Ordinary, however, cannot so regard them. If the birth was to be concealed, plain it is that the cost of the child's living must, at least in its early years, be

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provided; and the end to be served was held so important that the pecuniary cost was held as of comparatively no consideration. Besides, a refusal to pay aliment would not have secured immunity from liability. Mrs Gardner, at any rate, would have been liable for the support of her child; and from her husband, it might have turned out, her debt could be exacted. With reference, again, to the sum offered by the pursuers for an abandonment of the defender's claim, the view of the Lord Ordinary is that it is not a confession, but a protest against the reality of the defender's pretension. What he was willing to give for her disavowal was far more than she could now or afterwards extort as his child; and the knowledge that she is not and could not be his affords the only reasonable explanation of this part of the pursuer's conduct.

With reference to Mrs Gardner, the strongest observation made upon her evidence was, that it was not consistent with what she said in childbed when the infant was about to be taken away by the nurse. ‘Wrap it up in its father's plaid,’ are the words imputed to Mrs Gardner; and assuming that she used them, the argument is that they overthrow everything which subsequently was said or done inconsistent with the idea that the defender is the child of the pursuer. Upon this point the Lord Ordinary has to say, first, that the evidence as to the use of the words in question is not all one way. Mrs Gardner repudiated the expression imputed to her; and in some things the evidence of Mrs Hutchison, on whom the defender so much relies, is open to unfavourable criticism. But, secondly, even if the Lord Ordinary were to take for truth all that has been said by Mrs Hutchison, he would not think the use of the words in question such a circumstance as overcomes all the other facts in the case. There is an explanation which seems satisfactory. Mrs Gardner, in the hotel where the child was born, was not spoken of by any one or regarded by any one as anything but a married woman; but everything, excepting the name she bore, was a mystery. Neither the people in the hotel, nor the monthly nurse, nor the nurse who took away the child, were told or otherwise knew or had the slightest suspicion of who or what Mr Gardner was, or where he lived; and so Mrs Gardner may have thought that the words in question contained no revelation. Looking at them in the light in which they may now be read, the Lord Ordinary's opinion is that they leave unshaken the proof by which the cardinal point in the case is, he thinks, established.

Unfavourable comments were made upon other parts of the evidence given by Mr and Mrs Gardner. Their statements in particular points were contrasted with those of the defender, and the defender's friend and adviser, the Rev. Mr Kay. Well, there is a discrepancy. Everything said by all four cannot be reconciled. But it does not follow from this that Mr and Mrs Gardner are the witnesses who, in this conflict of testimony, are on the points in question to be disbelieved. The evidence of the defender is, in many particulars, weakened by contradictions, not merely of others, but of her own; and the least that can be said is, that it would be a strong thing to hold her in the right, and Mr and Mrs Gardner in the wrong, upon all or even upon any of the matters as to which there is contrariety of testimony. Mr Kay, again, has made himself as much a party in the case as if he were personally interested in the result; and on the question of comparative credibility the Lord Ordinary sees nothing in the evidence, and he saw nothing in the demeanour, of Mr and Mrs Gardner calculated to suggest, or warranting, upon a dispassionate view, the suggestion that they in anything they said were consciously giving what they knew was testimony inconsistent with the truth.

As to the law of the case, parties may be said to be agreed, and therefore the Lord Ordinary thinks it unnecessary to comment upon, or even to mention, all the authorities which were cited for his information. All, and more than all, which have been brought forward on this occasion will be found collected in Brodie v. Dyce, Nov. 29, 1872, 11 Macph. 142, the latest of the eases in which a question any way analogous to the present was decided by the Court.

The Lord Ordinary has now explained his views of the case. These have been formed after anxious consideration. He is sensible of its importance, but he has no misgivings as to the way in which it ought to be decided. He hopes that in coming to this conclusion he has not been unconsciously biassed by a circumstance to which he has not hitherto alluded, and indeed to which no allusion was made by counsel upon either side of the bar. That circumstance is the resemblance existing, as the Lord Ordinary thinks, between the defender and the witness Laidlaw. Of the reality of this likeness the Lord Ordinary is persuaded, but whether it can be regarded by others as more than a fancy, seeing that it was not even hinted at directly or indirectly by the counsel for the pursuer, is a question more easily asked than answered. Be this as it may, the Lord Ordinary has not made his impression a ground of judgment; and he has explained what he has set forth in this paragraph of his note because it is possible, though he regards it as improbable, that his views of the case may to some extent have been unconsciously influenced by a consideration for which, as things are, the only warrant is his own observation.

The Lord Ordinary has only to add in conclusion, though he considers the case unfounded, he thinks it was only natural and reasonable in the circumstances that it should be submitted for judgment of the Court. This is the reason for which expenses have not been awarded.”

The defender reclaimed.

Authorities cited—Lothian's Consistorial Law, p. 236; Stair, iii. 3, 42, and iv. 45, 20; Erskine Instit., i. 6, 47, Pr. i, 7, 36; Fraser on the Domestic Relations, vol. ii. pp. 16, 18; Webster, 24 Feb. 1855, 17 D. 494, and Lord Deas there, at p. 506; Brodie v. Dyce, 29 Nov. 1872, 11 Macph. 142; King v. Luffe, 8 East. 207, and Lord Ellenborough there; Carruthers, May 1812, F.C.; Dickson on Evidence, vol. ii.; Craig, ii. 18, 17, 20.

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