Scottish Court of Session Decisions

In this action of filiation and aliment the defender admitted frequent connection with the pursuer, who was a young girl in service at Banff, during the months of May, June, and July 1864. He left Banff for Inverness in July 1864, and his allegation was that he did not return until the 10th January 1865; and he admitted renewed intercourse thereafter up to May 1865, when he left Scotland, and did not return until 1868. The child was born on 26th August 1865, and there was evidence of its being rather premature.

The Sheriff-Substitute ( Gordon) assoilzied the defender.

The Sheriff-Depute ( Bell), on appeal, altered and decerned against the defender. He added the following note to his judgment:—“Frequent, habitual, long continued intercourse is admitted by the defender, and there is no indication of the pursuer having had intercourse with any other man.

“After continuing for months in 1864, the defender admits that this connection was renewed early in January 1865 at a period quite capable of resulting in the birth of a viable and healthy child. And it is proved that opportunity of renewed connection occurred a week or two earlier than its renewal was admitted.

“In order to obtain absolvitor in such a case it would be necessary to prove not merely that the child is living, and like to live, which frequently happens with children born in the eighth month; but farther, that the child was in point, not of conjecture but of actual fact, born after the usual period of gestation.

“In the general case there may be some slight presumption in favour of a party so alleging; but it is extremely uncertain, and quite insufficient to overturn the conclusions which must otherwise be admitted in the circumstances of the present case.

“And as to the proof of maturity, the Sheriff cannot hold that there is any sufficient evidence, more especially when it is considered that the child which surprised the mother in the harvest field was evidently unexpected, ‘was a sober weakly looking child,’ and ‘had scarcely any nails on its fingers and toes.’ ”

The defender appealed.

R. V. Campbell for him.

Buntine in answer.

The Court were of opinion that it did not appear that the child might not be the fruit of intercourse upon the 26th of December. There was no evidence that the defender was not in Banff at that time. In that case the child was born in the beginning of the ninth month, consequently there would not be strong physical appearances of immaturity. The circumstance of the mother having been working in the fields on the day of the birth, and that the child was small and weakly, were in support of this theory. The defender admitted continued intercourse before and after December, but averred that it was impossible for him to be the father of the child. It was incumbent on him to substantiate the fact of his absence, and he had failed to do so. It was not alleged that the woman had been intimate with any other man, her character seemed unexceptionable, and consequently the appeal must be dismissed.