The minute of a Kirk session, bearing that the defender had acknowledged himself the father of a child, though not signed by him, but supported by the oaths of two members of Session, found sufficient to subject him to maintain the child.
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The pursuer alleged, That the defender was the father of a natural child brought forth by her, and pursued him for the expenses of the child-birth, and for the aliment of the child.
In proof of the fact, the pursuer produced the minutes of the kirk-session, bearing, that the defender being interrogated, If he was guilty with the said Helen Miller, and father of her child? acknowledged he was; and the oaths of the Session-clerk, and another member of the Session, deposing to the verity of the said minute.
The defender set forth, That all he had acknowledged before the Kirk-Session, was, “That he had carnal knowledge of the pursuer only five months preceding her delivery.” And he pleaded, That the minutes of the Kirk-session are not legal proof against him. They are not properly records, and are not sustained to prove the time of the birth, and baptism of a child inserted in them; much less ought they to bear faith in a matter deemed criminal.
2do, Supposing the record of the Kirk-session to bear faith, the defender's acknowledgment, therein mentioned, cannot miligate against him, because not read to him, nor signed by him. In a case, decided 20th November 1679, Mackie against Miln, No 419. p. 12533. a decreet before an inferior Court, bearing, the defender's confession of his fault, not subscribed by him, was found not probative. To the same effect are the cases of the 13th February 1663, Linlithgow against Unfreemen of Borrowstounness, No 412. p. 12530., 19th July 1665, Gun against Mackewen, No 414. p. 12532.; 20th November 1672, Carrin against Wilson, No 416. p. 12532. This, therefore, being an established point, there is no reason for giving greater faith to the minutes of a Kirk-session, than to proper and legal, courts of record.
With regard to the deposititions of the two witnesses concurring in support of the verity of the minute, that the law is extremely cautious of allowing a proof by witnesses of nuda emissio verborum, because of the danger of words being mistaken; for this reason, promises are only probable by oath of party; and the like has been found, as to expressions in other cases, Div. I, Sec. 8 & 9, h. t.; this evidence, therefore, must be set aside. In which case, argued, 2do, That as his carnal knowledge of the pursuer was only five months preceding the delivery, and the child come to maturity, he could not be the father; and it lay upon the pursuer to prove his dealings with her earlier than the time mentioned.
3tio, He alleged the pursuer was a common prostitute, whose offspring is, in law, called vulgo quæsitus, and is presumed to have no particular father.
Answered to the first and second, That, in a matter of this kind, the minutes of the session, supported by the oaths of two of the members, added to his own limited acknowledgment, were convincing evidence.
To the third, That it was not relevant: he might pursue for relief against his partners.
“The Lords found the defender liable in expenses of child-birth, and for aliment to the child.”
Act. Millar.Alt. Pringle.Clerk, Forbes.
Fol. Dic. v. 4. p. 165. Fac. Col. No. 145. p. 216.
