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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Naughton v Glass [1838] CS 16_1103 (2 June 1838)
URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1103.html
Cite as: [1838] CS 16_1103

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SCOTTISH_Court_of_Session_Shaw

Page: 1103↓

016SS1103

M'Naughton

v.

Glass

No. 197

Court of Session

1st Division N

June 2 1838

Ld. Cockburn, Lord Gillies, Lord Mackenzie, Lord President, Lord Corehouse.

Rose M‘Naughton,     Advocator.— Counsel:
E.S. Gordon. William Glass,     Respondent.— Counsel:
M'Neill— A. M'Neill.

Subject_Proof—Filiation—Semiplena Probatio.— Headnote:

The mother of a natural child was found to have established a semiplena probatio against the defender, and was allowed her oath in supplement; the oath bore expressly that the parties had had carnal connexion, and that the defender was the father of the child; but the oath was contradictory of the main facts on which the semiplena probatio was rested: Held, that, to complete the proof, there must be both a semiplena probatio, and also an oath in supplement, corroborative of each other; and that as they were self-contradictory, the defender ought to be assoilzied.


Facts:

Sequel of the case reported ante, p. 614, which see. M'Naughton raised an action of aliment in the Sheriff-Court against Glass, as the alleged father of her natural child. The Sheriff, after a proof, assoilzied; M'Naughton brought an advocation, in which the Lord Ordinary found there was no semiplena probatio, but the Court altered that judgment, and allowed the oath in supplement. On emitting her deposition she deponed expressly that she had carnal connexion with Glass, and that Glass was the father of her child. She also deponed, on cross-examination by Glass, as to the circumstances of her alleged intercourse with him, and in particular that she never had connexion with him before April or May, 1834. On the record she had not only alleged the existence of that carnal connexion to which she deponed in her oath, and which tallied with the birth of the child, but farther, that the carnal intercourse commenced in 1831, and continued through subsequent years. The proof adduced by her, which was found to amount to a semiplena probatio, referred to these allegations on the record; and they were of a nature so important, that, without them, the Court (as afterwards appeared) would not have held there was any semiplena probatio.

Glass now pleaded that the oath was not in supplement of the semiplena probatio, but, on the contrary, was destructive of the chief part of it; that, if the fact had previously been stated on the record, as it should have been, that there was no carnal connexion before 1834, there was nothing in the evidence to amount to a semiplena probatio; and, therefore, although the oath contained a positive statement that he was the father of the child, yet, as that oath was not supported by a semiplena probatio aliunde, the proof of paternity was incomplete, and he should be assoilzied.

M'Naughton, in answer, besides contending that there was no material discrepancy between the statements in the oath and those on the record and in evidence, also pleaded that it was fixed by a final interlocutor that she had adduced a semiplena probatio; that she had been allowed to give, and had given, her oath in supplement, which oath expressly supported the semiplena probatio of paternity, by deponing in positive terms to carnal connexion between Glass and herself, at a period which tallied with the birth of the child, and to the fact that Glass was the father of the child. The connexion deponed to was stated on the record; and though the oath negatived previous connexions which were also alleged on the record, these were immaterial, being prior to the period of conception. There was now, therefore, nothing remaining but to give decree in terms of the libel.

The Lord Ordinary “having heard the counsel for the parties on the pursuer's deposition and the whole case, found it proved that the defender is the father of the pursuer's child; therefore advocated the cause, sustained the reasons of advocation, repelled the defences, and decerned in terms of the libel; and found the pursuer entitled to expenses both in the inferior court and in the Court of Session.” *

Glass reclaimed.

Lord Gillies.—It is now proved by the oath of M'Naughton that there was no carnal connexion between Glass and her before 1834. That statement is not only at variance with the allegations of previous connexion, which were made on the record, but it sweeps away the main grounds on which the seraiplena probatio formerly rested. It was alleged on the record that carnal connexion between the parties began as early as 1831, and continued through subsequent years, till it resulted in the birth of the child in question. The proof adduced by M'Naughton was brought to bear on that alleged state of the facts; and those presumptions and probabilities, out of which the semiplena probatio was reared up, were all estimated in reference to that hypothesis. It was a very material circumstance, the date at which the connexion began; for, if it was once proved to have had a beginning, though far beyond the period of conception, yet if the parties were so situated, towards each other, as to afford opportunity for the continuance of the intercourse, much slighter grounds would infer its continuance than would suffice to prove its commencement. But now that the fact is before the Court, that there was no carnal connexion at all before 1834, the weight of the previous proof is most materially affected by it; and, although I feel very considerable difficulty in disposing of the case, I am inclined to think that this is not truly an oath in supplement of the previous proof, or an oath duly supported by a semiplena probatio aliunde, and, therefore, we ought to alter the interlocutor, and remit simpliciter to the Sheriff. There was a semiplena probatio before the oath in supplement was taken; but that oath has contradicted the previous evidence in material particulars, and in place of supporting the seraiplena probatio, has destroyed it.

Lord Mackenzie.—I feel a good deal of difficulty in this case, but I incline to be of the same opinion. We formerly held, on considering the record and the evidence adduced, that there was a semiplena probatio. And if those statements on the record, and that relative evidence, had remained uninjured by the oath in

_________________ Footnote _________________

* “ Note.—If the Lord Ordinary were entitled to act on his former and his present impression of the original proof, he would he of opinion that the pursuer had not established her case, because, 1. There is what he would humbly think a fatal discrepancy between her deposition and her condescendence as to the commencement of her intercourse with the defender. She swears expressly that her first lapse with him was in April or May, 1834; but her condescendence avers a connexion years before, so that the whole story sworn to, is repugnant to the statement on record. 2. There are several persons named in the record who might have been called by her to prove important circumstances, but who have not been called. 3. Her deposition is contradicted in some important points by the witnesses examined.

“But though these be the Lord Ordinary's own views, the two first of them rest on his notion of the import of the former evidence, which it is now fixed was wrong; and it is decided that the evidence formerly adduced, amounted to a semiplena probatio. Taking this as its result, or in other words, giving effect to the feeling of the Court upon the proof, the deposition, which is express upon the main fact, makes out the pursuer's case.”
supplement, and had been supported by that oath, as to the paternity of Glass, the case would have been fully proved against Glass. But matters have turned out differently. The record averred the existence of carnal connexion on various occasions in 1831, and the subsequent years. The evidence bore on these averments. But the oath in supplement demolishes the greater part of the semiplena probatio, by proving that there was no carnal connexion before 1834. In these circumstances, ought we not to look back to the record, and read it as consists with the fact, that there was no carnal connexion before 1834; and, if so, could we have held that there ever was a semiplena probatio in the case? I think we could not. And as I am of opinion that where an oath in supplement begins by demolishing the whole semiplena probatio already led, there cannot be decree pronounced for the party deponing; so also, wherever the oath demolishes the substance of the semiplena probatio, so that, if the facts, appearing on the oath, had been known before taking the oath, and would have shown that there was no semiplena probatio at all, then the party deponing has failed to prove the case, and the defender should be assoilzied. Suppose the evidence raised a presumption, amounting to semiplena probatio of intimacy with A, and the Court allowed an oath in supplement; but the oath deponed that it was not A, but B, with whom the intimacy had occurred, that would just be an instance of an oath in supplement demolishing a semiplena probatio. And although that is an extreme and hypothetical case, the principle seems to be the same wherever the oath substantially demolishes the semiplena probatio. There must be both a semiplena probatio, and an oath in supplement, corroborative of each other. I do not think that these co-exist in the present instance, and, therefore, I think the defender, Gluss, should be assoilzied.

Lord President.—I think the case is attended with difficulty. After a semi-plena probatio was found to be established, the object of the oath in supplement was not to corroborate the mere details on which the semiplena probatio rested, nor the special fact of Glass having become the father of the child at the times of suspicious intimacy, previously appearing on the proof. It was to have the main fact supported by the woman's oath that there was carnal connexion between the defender and herself, and that the defender is the father of the child. The oath distinctly depones to this; and, though there are strange contradictions between it and the statement on the record, there is much difficulty in denying effect to the oath in supplement.

His Lordship was understood, however, ultimately, to concur in the result at which Lord Gillies and Lord Mackenzie had arrived.

Lord Corehouse was not present.

The Court pronounced this interlocutor:—“In respect that the oath of the pursuer, instead of supporting and confirming the plea of semiplena probatio, directly controverts that plea, recal the interlocutor reclaimed against; repel the reasons of advocation, &c., and find no expenses due to either party,” &c.
Facts:

A minute of reference to the defender's oath was at the same time allowed.

Solicitors: Ritchie and Hill., W.S.— J. Brodie. S.S.C.—Agents.

 SS 16 SS 1103 1838

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URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1103.html