Scottish Court of Session Decisions

This was an appeal from the Sheriff-Court of Stirlingshire in an action of filiation and aliment. The defender was an apprentice and the pursuer a domestic servant with n Mr M'Callum, a wright, near Gargunnock. The child was born on February 6, 1867, so that the conception must have taken place shortly before the May term 1866. At that term the pursuer quitted Mr M'Callum's service and went home to her parents. She swore that the defender had had connection with her on only two occasions, both within two or three weeks of her leaving. The defender swore that be never had had connection with her at all. The only corroboration of the pursuer's oath was proof of “tousling” on one occasion in spring or summer 1865, the witness being Mr M'Callum himself; and the conduct of the defender after he was charged with the paternity of the child shortly before its birth. The Sheriff-Substitute ( Sconce) decerned in favour of the pursuer; but the Sheriff ( Blackburn) reversed and assoilzied.

The pursuer appealed.

Guthrie for appellant.

Burnet for respondent.

The Court returned to the Sheriff-Substitute's judgment; Lord Benholme dissenting. The majority founded strongly on the fact that when the defender was charged orally by the pursuer's mother, and in writing by herself, with being the father of the child, he had merely denied being the father, and had not also alleged, as was said to be the proper course in such circumstances, that he never had had any connection with the mother. It appeared farther that after denying paternity the defender had written a letter to the pursuer agreeing at her request to meet her. It was thought that if the women's charge against him were not true he must have known it to be concocted, and that it was not a proper answer to such a charge to travel some miles to see the pursuer; that an innocent man in such a case would have at once repudiated the charge as concocted, and would not have dallied and fenced with the question.

The Court observed that in the Sheriff-Court it was an infringement of the statute to adjourn diets of proof, as had been done here, without stating in the interlocutor the special reason of such adjournment; and Lord Cowan said there had been too many instances of such delays having been taken advantage of for the purpose of procuring fresh evidence. Further, it was a reprehensible practice to take down the evidence of the pursuer, the leading witness, merely as concurring with a previous witness (as had been done here in regard to the incident in spring 1865). In such a case as this the precise statement sworn to ought to have been taken down.