Scottish Court of Session Decisions

This was an action at the instance of Helen Taylor Macpherson, Muir of Turtory, Rothiemay, against James Largue, farm servant, Lochagan, Banff, brought in the Sheriff Court at Banff. The pursuer sought aliment for an illegitimate child of which she alleged that the defender was the father. The defender denied the paternity.

The pursuer, who up to the time when the child was born was a domestic servant and dairymaid, had been at school with the defender, but after going into service, did not see anything of him for several years, until November 1894, when she met him on the road. Shortly after that the defender called for the pursuer on a Sunday at the house where she was in service, and was with her for some little time. He called again for her twice. The child was born on 31st August 1895. So far the facts were not in dispute.

At the proof which was led on 15th January and 5th February 1896, the pursuer deponed that on the first occasion of the defender's visiting her they had a walk in the grounds together, but this was denied by the defender. With regard to the second visit she deponed—He came back again on the first Sunday of December between five and six o'clock. He came to the door, and I went out with him after answering it. He did not come in to the house. I went out with him. We went out past the front door, round about the grounds, and down at the back of the laundry, where we sat down. He had connection with me there. He told me that he loved me, and professed

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affection, and spoke about marrying me. He was scarcely an hour in my company that afternoon, then he left.… We were about half-an-hour together before we sat down.… That was the only occasion on which the defender had connection with me—that first Sunday in December. The connection took place outside on the grass at the back of the laundry. The laundry is not far from the house, on the top of a brae looking down on the water, not far from the kitchen—a pretty steep brae, but not very long down to the water. There are trees on that brae, between the laundry and the water, and between the laundry and the bridge. There are bushes growing besides trees.” With regard to this visit the defender deponed—“I visited her on another occasion at Turtory House, also on a Sunday, about five o'clock in the afternoon. I knocked at the kitchen door, and she was in. I did not go inside; she came out to the door. She did not leave the house, and we stood talking at the door again. I was not ten minutes with her, and the whole time at the door. I did not tell the girl that I loved her on that occasion. I did not take her on my knee or kiss her at that time, nor did I give her a walk through the grounds at that time. I do not know where the laundry is situated at Turtory. I know where the milk-house is. I did not accompany her to the milk-house on that day. I did not sit down on the grass beside her at the laundry door. It was stormy. I never sat down with her there. I never sat down with her outside in the grounds of Turtory House.”

George Greig, a fellow-servant of the pursuer's, deponed—“The next time I saw him near Turtory House was when he was standing about the laundry with the pursuer. That was also on a Sunday, about the 1st December, five or six o'clock in the afternoon. I was upon the road, and I chanced to be on the bridge, and I saw them. They were apparently sitting on a bank at the back of the laundry—the pursuer and defender. I just saw them, but I did not watch them.”

The defender in his defences averred that this witness was the father of the child, but no evidence was led in support of this allegation.

The pursuer did not inform the defender of her condition, but she sent for him on the day on which the child was born. He went, along with James Douglas Largue, his cousin, to her grandfather's house where she was. They saw the pursuer, and she said he was the father. The defender remained a considerable time, his cousin being present, endeavouring to get her to say that the child was not his, but she would not go back upon her first statement.

The Sheriff-Substitute ( Grant) on 11th February 1896 issued the following interlocutor:—“Finds, in fact, that the defender is the father of the child libelled, and in law that he is bound to contribute to its support; Therefore decerns against the defender as prayed for: Finds the pursuer entitled to expenses,” &c.

Note.—“In this action of affiliation and aliment the pursuer rests her whole case on a single act of connection on the first Sunday of December 1894.

The criticisms of both parties at debate were mainly directed to diversities and discrepancies between the dates given in evidence on either side for the few meetings that undoubtedly took place between them.

The exact dates are now matters of unaided memory, and do not strike me as material with regard to credibility merely. It is of course incumbent on the pursuer to prove connection within the period specified on record— i.e., during December 1894 and January 1895.

On consideration of the evidence, I am satisfied of the possibility of access during that period.

The evidence that opportunity was taken advantage of is very meagre. We have the pursuer's oath to start with, of course, but there is no other evidence of indecent familiarity. In the circumstances the defender's actings throw light on the probabilities of the case. In the first place, he makes a most unwarranted imputation on a married fellow-servant of the pursuer, which he is unable to support by any evidence whatever. That appears to me rather as if, having to manufacture a defence, he has fallen into the vulgar error of trying to make it more conclusive than he need.

There, again, we have the consistent action of the pursuer in immediately sending for the defender on the birth of her child. He came, but instead of accepting or denying the paternity outright, he remains by her bedside for about an hour, striving to obtain an admission from the pursuer favourable to himself. I need hardly say that the admissions of a woman only a few hours delivered would not in any case have told hardly against her; but it appears to me, from the defender's own evidence, she told him not what he wanted certainly, but all he was entitled to, when she said that she had no-one else to put the child to.…

On the whole, therefore, I think the pursuer has proved her case.”

The defender appealed to the Sheriff ( Crawford), who, by interlocutor dated 16th March 1896, affirmed the interlocutor appealed against, adding the following note.

Note.—“This is a somewhat narrow case, but in my opinion the pursuer is entitled to succeed. Mere opportunity would not by itself supply sufficient corroboration, but there was what may be described as a flirtation between the parties. They renewed an old friendship dating from childhood. The pursuer was knitting a pair of socks for the defender, and he began to pay her visits. It cannot well be believed that these were so short as he represents. The parties were on a footing which might be innocent enough, but it implied a certain degree of intimacy and of mutual attraction, and when it is followed by the birth of a child, and the pursuer's oath as to its paternity, it must be taken into account. The pursuer has fixed a particular day as

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the date of the sole act of connection, and the defender was entitled to argue that it does not tally with the evidence as to the dates of their previous meetings. I do not see that there is any inconsistency in the pursuer's own evidence, and with regard to that of the other witnesses, I agree with the Sheriff-Substitute's remarks on the subject, and I do not discover any material contradiction. It may be said that Greig, after the accusation made by the defender against him, which it would be natural for him to resent, cannot be taken as an impartial witness. If he were, his evidence affords exceedingly strong corroboration of that of the pursuer—probably conclusive in the face of the defender's denial. The Sheriff-Substitute has said nothing against his credibility. .…

On the supposition of the defender's innocence, his conduct in old Macpherson's house after the birth of the child is not easy to account for. His being sent for at all was of course notice that the girl charged him with the paternity. It is not easy to see what his motive was in torturing her with questions for more than an hour in the condition she was in. It looks as if he hoped to extract from her a withdrawal of the charge. But it appears to me rather to point to some unknown circumstance, such as a promise by the girl not to father the child upon him but upon someone else. It does not, in my view, point to the defender's innocence, but the contrary. Further, it is difficult to disbelieve the evidence that he falsely stated on that occasion that he had not met the pursuer till the previous Whitsunday.

The circumstance in the case which is most unfavourable to the pursuer is that there is no evidence, and it is not alleged that she acquainted the defender with her condition and his responsibility till the birth of the child, but taken along with the other evidence, that is not sufficient to turn the scale against her.”

The defender appealed to the Court of Session, and argued—There was no corroboration of the pursuer's statement. The pursuer did not accuse the defender till after the birth. The only evidence in corroboration was that one witness said he saw them together behind the laundry. There was no corroboration whatever as to the essential fact of connection. Proof that they were seen sitting together on a bank was not proof that connection took place on that occasion. There was nothing in that inconsistent with an innocent flirtation. There was no evidence of indecent familiarities or of any familiarities at all. In cases where connection could only be inferred, such evidence had always been held necessary— Scott v. Dawson, February 2, 1884, 11 R. 518. The defender's denial of a fact held to be proved was not corroboration of anything— M'Kinven v. M'Millan, January 13, 1892, 19 R. 369, and Young v. Nicol, June 8, 1893, 20 R. 768.

Argued for the pursuer—A certain amount of familiarities and flirtation was proved. The pursuer's conduct after the birth was not consistent with innocence. The pursuer's evidence as to the interview at which she alleged the connection took place was believed by the judge who saw the witnesses, and her statement was corroborated by the witness Greig as to material facts and circumstances. These facts and circumstances were denied by the pursuer, and if proved, his denial gave a clandestine character to the interview. This led to the inference that he had something to conceal, and that the pursuer's statement as to the essential fact was true— M'Bayne v. Davidson, February 10, 1860, 22 D. 738, was a narrower case than the present.