Scottish Court of Session Decisions

This was an advocation from the Sheriff Court of Roxburghshire. The pursuer (advocator) sued the defender for the aliment of twins, of which she alleged he was the father. A proof was led in the course of which the pursuer swore that the defender was the father of her children, and the defender denied that he had ever had connection with her. There was no corroboration of the pursuer's testimony, and no evidence of familiarities. The defender produced with his defences a letter, which he said he had received from the pursuer in answer to one which he had written to her in consequence of rumours which had reached him that she was with child to him. The letter was dated six weeks before the birth of the children, and was as follows:—

“Sunlaws Mill, April 16.

“Dear Thomas,—It is with grief that I have to write to you, but I have to do it. You know as well as me I can't keep people from saying; but I never said it was yours, for I know different. My father was down, and he told me he would not let me home, so you need to believe what no one says; for I never said no such thing. I am to lodge in Heiton or Roxburgh, and my way will be paid without you; so you have nothing to do with me and my affairs.—Yours truly,

“ Mary Scott.”

The pursuer denied that she had written this letter, and alleged that it was a forgery.

The Sheriff-Substitute (Russell), chiefly on the ground that he was satisfied that the above letter was not written by the pursuer, found her case proved.

The Sheriff (Rutherford) recalled this interlocutor, and assoilzied the defender.

On advocation, the Lord Ordinary (Ormidale) adhered to the Sheriffs judgment, and explained his reasons in the following

Note.—Whatever may be thought of this case otherwise, and whatever doubt may be supposed to attend it, certain it is, at least, that one or other of the parties must have sworn falsely—unfortunately a too common feature of such cases as

Page: 87↓

the present. Without positively deciding where the truth lies, the Lord Ordinary is very clear that the pursuer has failed to establish her case. There is not only no corroboration in regard to any important matter, of her own testimony, but that testimony is in some material respects self-contradictory. Although the pursuer says that the defender very frequently visited her at her master's house during the period of upwards of six months, remaining for hours at a time, no person besides herself has spoken to any such visits, or appears to have been cognisant of them; and this is all the more remarkable, when the circumstances and manner in which the visits are said by the pursuer to have taken place are considered. It is all but incredible that none of her master's household. which consisted at least of himself, the mistress, their son, and servant man, should ever have had occasion to know of or suspect such visits. At any rate, if they did, there is no proof or attempt at proof of it. In regard to the pursuer's self-contradiction, the Lord Ordinary refers to in particular, her statement, clear and distinct in itself, in answer to a question by the Court at her first examination, that “she had connection with no person other than the defender, prior to the birth of the children,” while afterwards, at her second examination, she admitted that she had previously given birth to an illegitimate child. Her explanation of this apparent contradiction is not satisfactory. The Lord Ordinary does not think it necessary to determine whether the letter which appears to have chiefly influenced the Sheriff-Substitute in deciding against the defender is or is not a forgery. He thinks it would be very unsafe to determine that matter on the evidence in process. The Sheriff seems to have relied very mnch on the circumstance of the pursuer's name Mary being commenced with a small “m” in the letter referred to, in place of a capital “M” as in the pursuer's signature at the end of her deposition. But he has, it is presumed, omitted to notice that in her letter to her father, the genuineness of which can scarcely be disputed, it having been produced by him, the pursuer subscribes “M. Scott,” in place of “Mary Scott,” as to her depositions. The Lord Ordinary could not, therefore, allow himself to be influenced in this case, one way or the other, by a comparatio literarum, which is seldom, if ever, much to be relied on, and certainly not where the individual whose handwriting is in dispute happens to be in the same station of life as the pursuer, and little practised in subscribing her name, or in writing of any kind. R. M'F.

The pursuer reclaimed.