Scottish Court of Session Decisions

In this action Mrs Jessie Forbes or Reid and her husband John Reid sued John Mill, for aliment, &c., for a child borne by the female pursuer. The pursuers were married on the 12th February 1878, and the child was born on the 21st May thereafter, little more than three months after the marriage. Mrs Reid averred that the defender had been in the practice of visiting her for several years prior to her marriage, during most of which time she was living alone, and that he had frequently had intercourse with her, which began as far back as 1875. and continued down to within a month of the date of her marriage, and especially on one occasion on the 24th of August 1877. The pursuers averred that they themselves had been on friendly terms at a former period, but that their intimacy had ceased some years before, and was not renewed till October of 1877; further, that no sexual intercourse took place between them till after their marriage. The male pursuer further stated that he did not know that his wife was with child till the child was born. Mrs Reid stated in examination that she feared she was with child at the time of the marriage, but was not sure. She further said that she told no one of the condition she suspected herself to be in till the child was born. The defender denied that he had ever had any connection with the pursuer Mrs Reid, but admitted that he was on friendly terms with her, and used to write to her; he farther averred that the pursuers had been in the habit of meeting and driving about the country together for a considerable period prior to October 1877.

When the child was born the fathers of both pursuers went to the defender and told him that Mrs Reid had named him as the father, and asked him to take the child away; this the defender refused to do, and also refused to pay for the nursing, &c., of the child. The present action was then brought, a proof was then led, and on 18th October 1878 the Sheriff-Substitute ( Barclay) pronounced an interlocutor decerning against the defender. The defender appealed, and on 11th December 1878 the Sheriff ( Lee) pronounced an interlocutor recalling the interlocutor appealed against, and decerning in favour of the defender. The Sheriff added a note, in which the following passages, inter alia, appear, which state the import of the proof upon the points which were held to be decisive of the case:—“According to the statement of the female pursuer, it was in the month of December 1877 that she engaged to marry her present husband. She had been on friendly terms with him (as the proof shows) for a period of years, but the allegation on record is that their intimacy had ceased for two or three years prior to October 1877, when it was resumed. The fact, however, is, that during the whole of 1877 the male and female pursuers met on friendly and familiar terms. He was at an evening party at her house in the month of January. She was at an evening party in his father's house in the month of March. They also met at another party in the early part of that year, at which some not inconsiderable, but possibly harmless, familiarities took place between them, which she does not recollect. They met at a pic-nic in July, and again at the Crieff Games on 25th August. He seems to have joined the party with which she was. In short, the suggestion of estrangement prior to October 1877 is not supported by satisfactory evidence.

“It appears that for three years prior to September 1877 she had been engaged to a young man of the name of Grieve, who was in America, but her correspondence with him then terminated. Her story is not necessarily untrue because it involves the admission that during that engagement she was receiving the embraces of another man. But the statements which she makes concerning her pregnancy and her non-disclosure of it are certainly extraordinary. She says that she was not aware at the time of her engagement to the male pursuer that she was in a state of pregnancy. She feared that she was in that way at the time of her marriage, but was not quite sure of it. The usual consequence of pregnancy had taken effect in the month of September. She understood that the state of matters referred to was a sign of pregnancy, but understood that there were other causes. She consulted no doctor. She did not tell her husband of her condition; she told nobody. She repeatedly saw the defender both before and after the marriage, and letters passed between them. But although the defender is now said to be the father of the child, and the only man with whom the female pursuer had connection prior to marriage, she never told the defender that she was with child. Not only was no communication, such as might have been expected, made to the defender, but even after the marriage the case of the pursuers is that no information was given by the female pursuer to her husband or to any one prior to the birth of the child. Probably this was a necessary part of the pursuers' case. Because if she had informed

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anybody, she must have informed her husband, and as he and she together subsequent to the marriage destroyed the defender's letters, and have brought forward this allegation only after the child was born, it would have been destructive of their credit to admit that he knew anything about the child. In short, the pursuer's story is that she allowed the defender to have carnal intercourse with her during the period of her engagement to Mr Grieve, and also during the period subsequent to her engagement to her husband and prior to her marriage; that she was nearly six months gone with child at the date of her marriage; that she never mentioned the matter to the alleged father; and that she never told her husband of her condition or the cause of it. The case of the pursuers requires that it should be believed that they entered into the married state and continued therein till the birth of the child without any knowledge on the part of the husband that his wife was far advanced in pregnancy.

It appears to the Sheriff that the story as told is scarcely credible. That a woman in such circumstances should go on with a marriage, and should persist so long in an attempt to conceal the truth as to her condition, is in the highest degree improbable. That she should succeed to such an extent in avoiding explanation (supposing she tried to do so) is almost beyond belief. Assuming the female pursuer's account of the matter to have been true, and supposing her to have been a truthful woman, who had merely fallen from virtue, it would have been natural to expect that she should have seized the first opportunity of making a confession. But she appears to have gone over with her husband, after her marriage, the letters of the defender, and to have allowed them to be destroyed without suggesting that there was reason why they should be preserved. As the spouses read them before burning them, it must be presumed that in themselves they contained nothing of any significancy against the defender. Nor was this, according to the male pursuer's statement, the only occasion when she had an opportunity of confession, if there was anything to confess. For he says that his mother drew his attention to his wife's appearance, and that he mentioned the matter to her, and that she ‘said nothing, and made no answer.’ Her statement that he ‘never mentioned the circumstance to me’ is not in agreement with this. But if the husband's statement be correct, it is scarcely conceivable that the allegation now made should not have come out before the child's birth, at least if that allegation contains the truth of the matter.” [The Sheriff then proceeded to examine whether there was corroboration of the pursuer's testomony, and gave his reasons for finding that insufficient.]

The pursuers appealed.

Authorities— Jobson v. Reid, January 19, 1830, 8 S. 343, and May 31, 1832, 10 S. 594;; Brodie v. Dyce, November 29, 1872, 11 M. 142; Gardner v. Gardner, May 30, 1876, 3 R. 695; H. of L. May 17, 1877, 4 R. 56.

At advising—