Scottish Court of Session Decisions

Lord President—In this case the proof was completed on 1st February, and on the 18th of the same month the Sheriff-Substitute pronounced an interlocutor finding that it was not proved that the defender was the father of the child libelled. As the case then stood it was not altogether free from difficulty. I do not sympathise with the view stated by the Sheriff-Substitute in his note “there is something singularly painful in the thought that a son of such tender years should be brought as a witness to his mother's shame.” I cannot see that because the witness is the illegitimate child of his mother that his evidence should be rejected. Nor do I think that the evidence of a child of that age is less reliable than of a person of maturer years. His being brought to speak to his mother's shame does not affect the question. Although the case was therefore a narrow one, on the evidence I am disposed to agree with the Sheriff-Substitute. Against his judgment an appeal was taken to the Sheriff, when the case assumed a different aspect. There was a petition presented to the Sheriff for the examination of an additional witness, and the Sheriff entertained application favourably. Now, the circumstances under which that witness was examined were very peculiar. The witness was a sister of the pursuer, and was called upon to speak to one of the occasions on which the parties were said to have had intercourse together. She was an important witness, and it was impossible that the pursuer or her agent should not have been aware that her evidence was material. They must also have known what she was able to prove. Yet they did not examine her, and closed their proof without her evidence. To admit such a witness now is a very serious proceeding. If it falls under the Act of Sederunt of 1839, which requires very weighty reasons for such a course, I am of opinion that the Sheriff was wrong in granting the application. On the other hand, if it does not fall under the Act of Sederunt, then the Sheriff must have done so in the course of his ordinary discretion, and in this case he was entirely wrong. When the pursuer spoke of a witness as being present on one of the occasions referred to, and that witness is not called, the impression is irresistible that the witness was not disposed to undertake to confirm the pursuer. The probability is that the witness was not prepared to confirm the pursuer's statement originally, but was prevailed upon to do so. Therefore I take the case as it stood before the Sheriff-Substitute, and I am for reversing the Sheriff's interlocutor and returning to that of the Sheriff-Substitute.

Lord Deas concurred.

Lord Ardmillan—In this action of filiation the Sheriff-Substitute has decided for the defender, and assoilzied. The Sheriff-Principal has decided for the pursuer, and decerned for aliment. The question was, however, not presented to the Sheriff-Principal under the same circumstances and on the same proof as to the Sheriff-Substitute, since an additional witness, Elizabeth Welsh, half-sister of the pursuer, was examined after the Sheriff-Substitute had pronounced his decision.

I have, not without some difficulty, arrived at the conclusion that the judgment of the Sheriff-Substitute, on the proof before him, was well-founded. I have hesitated a little on this point, because the pursuer's evidence is distinct, if true, and is not absolutely without corroboration. But I do not feel justified in differing from the opinion which has now been given by your Lordship, and the opinion of the Sheriff-Substitute, who saw and examined the witnesses, is also important, and entitled to some weight. The boy James Laidlaw was only eleven years of age when examined, and must have been little more than ten at the time of the occasion to which he speaks. He is the son of the pursuer, and his testimony—not given on oath, and not bearing directly on the question involved—seems scarcely sufficient to afford the necessary corroboration to the pursuer—a single witness of worse than doubtful character.

But, it is said that the evidence of Elizabeth Welsh, taken on the 19th of April (the Sheriff-Substitute's judgment having been on the 18th of February 1875), affords additional and sufficient confirmation of the pursuer. I am of opinion that, under the circumstances, and having regard to the previous examination of witnesses, the judgment of the Sheriff-Principal of 8th April 1875, allowing the pursuer to adduce the witness Elizabeth Welsh, was not well-founded. I think it was wrong, under the circumstances, to admit that additional witness. It is not correct to speak of it as merely a question of competency. To some extent it is a question of judicial discretion. I do not say that the Sheriff could not have competently allowed the witness to be examined if in the circumstances justice required her examination. But it was not so. No “weighty reason,” such as was required by the Act of Sederunt, explaining why the witness had not been previously adduced, was stated to the Sheriff, or has now been stated to this Court. Both the pursuer and the defender were examined as witnesses for the pursuer, and both of them then mentioned the fact that the pursuer's sister was present at the carting-in of the rakings in the field. The fact of the witness's presence was therefore known, and certainly any evidence she could give as to what occurred when she was present in that field must have been known to be more or less important. If it was important, she should have been adduced. No excuse was made for not calling her. Mrs Welsh, mother of the pursuer and of the witness, was examined, and no circumstance explaining the witness's absence, or accounting for the failure to adduce her, was stated. The pursuer's procurator must have known the nature of this witness's testimony. But he did not think fit to examine her, and he I closed his proof without adducing her; and some time afterwards he proposes to adduce this sister

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