Scottish Court of Session Decisions

This was an advocation from the Sheriff Court of Renfrewshire of an action of filiation and aliment, at the instance of Poor Mary Munn, residing in Greenock, against William Shaw, jun., cabinetmaker there. The Sheriff — Substitute (Tennent) assoilzied the defender, holding the pursuer to have failed in establishing her case, there being little evidence in support of it, except her own deposition; while, on the other hand, she had ascribed the paternity to another person. The Sheriff (Fraser) adhered to this judgment, and pronounced the following interlocutor and note, from which the main facts and arguments relied upon sufficiently appear:—

“ Edinburgh, 7 th June 1865.—The Sheriff having considered the reclaiming petition for the pursuer, No. 17 of process, closed record, proof, and whole process, refuses the prayer of the said reclaiming petition, dismisses the appeal for the pursuer, and adheres to the interlocutor of the Sheriff-Substitute appealed against, and decerns.

(Signed) Patrick Fraser.

“ Note.—When a master repeatedly kisses his female servant under twenty years of age, and she becomes pregnant, the reasonable inference is that he is the father. The defender—a licentiate of the U. P. Church—did several times kiss the pursuer, his servant, according to his own confession, and it is proved that he had abundant opportunities of having carnal connection with her.

Had the matter stood there, the Sheriff would have had no doubt whatever that the defender must be found liable in the aliment of the pursuer's child. But, fortunately for him, he admits the fact that he kissed her several times; and secondly, there is the fact which cannot be got over, that she charged another man with being the father of

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the child. There have been cases in which paternity has been found established against a man, although the woman has charged another with being the father. But in these cases there was corroborative evidence of the pursuer's statement against the defender. In this case there is nothing whatever proved except the fact that the defender several times kissed the pursuer, although it must be conceded that the defender does not say that he kissed her while he was elevated after dinner, or under any unusual excitement. He kisses her in his normal condition; and if the pursuer had not accused Phillips of being the father of her child, this would have been conclusive against any ordinary man, and certainly against a U. P. licentiate. The pursuer says that the accusation against Phillips was in joke. The Court cannot accept this explanation. Charges like these are very serious, and must be seriously considered. There is no evidence but the pursuer's own, that the defender asked her to attribute the paternity to another than himself. If the pursuer is right in her assertion that the defender is the father, she has failed to obtain a legal recognition of that right through her own folly. Whatever may be one's suspicions as to the paternity of the child in question, it is enough here to say, that there is not that sufficient legal evidence upon which the defender can be made liable.

The Sheriff-Substitute has found expenses due to the defender according to the usual rule, and as the Sheriff has adhered to the interlocutor, he has not interfered with this finding. At the same time he may state that he hopes that this decree will not be enforced against the unfortunate girl. If the Sheriff-Substitute had not found expenses due, the Sheriff certainly would have considered this a case for finding none, and no expenses have been found due since the appeal.”

The pursuer advocated.

Mackintosh (with him A. Moncrieff) was heard in support of the note of advocation.

Gifford and R. V. Campbell, for the respondent, were not called upon.

At advising,