Scottish Court of Session Decisions

The pursuer gave birth, on 11th March 1865, to an illegitimate child, of which she alleged that one of the defenders, a lad of about sixteen years of age was the father. In November 1864, having been informed that he was about to emigrate to Australia, she presented a petition to the Sheriff of Forfarshire against him as in meditatione fugæ. In this petition she expressly averred that the intercourse which afterwards resulted in the birth of a child took place “on various occasions between the 8th and 27th days of August 1864.” Under this application he was apprehended, but afterwards liberated on his father, the other defender, granting a bond of presentation for him.

After the birth of the child the pursuer raised this action against the alleged father, and also against his cautioner, founding on the bond of presentation. The intercourse was now alleged to have taken place “on the 11th and subsequent days of July 1864.” The cautioner pleaded that in consequence of this variance he was not liable under the bond, the conception of the child, in regard to which he became bound to present his son, having taken place in August 1864. This plea was repelled by the Lord Ordinary (Kinloch), and the cautioner reclaimed. He argued that he had granted the bond in consequence of the statement in the petition that the child was conceived in August, which he knew could not be true if his son was its father. The variance was therefore material. He founded upon Campbell v. Hamilton, 20th January 1789 (Hume 82), and M'Neill v. Stewart, 18th November 1823 ( 2 S. 439 N. E.). The Court, without calling for a reply, adhered.