Scottish Court of Session Decisions

This was an action of filiation and aliment brought up on appeal from the Sheriff Court of Forfarshire. The pursuer, who was formerly a domestic servant at Gask, and afterwards resided at Craichie, in the parish of Dunnichen, Forfarshire, averred in her summons that she was delivered of an illegitimate female child on the 19th August 1879, of which the defender was the father. In her condescendence she stated that the defender had sexual intercourse with her in the kitchen of the farm-house of Gask, and also in the byre of the farm-steading thereof, in the months of September, October, and November 1878, and that in consequence of the said intercourse she gave birth to the said illegitimate child on 19th August 1879. She further stated that the defender had admitted the paternity of the child at a meeting of the kirksession of the parish of Dunnichen which they had both attended.

The defender denied the pursuer's allegations.

The Sheriff-Substitute (RosEarsoN) found in fact that the pursuer had failed to prove that the defender was the father of her illegitimate child; and found in law that he was not liable for the inlying expenses and aliment sued for; and therefore assoilzied the defender from the conclusions of the summons.

The Sheriff-Principal ( Maitland Heriot) recalled the Sheriff-Substitute's interlocutor, and appended the following note, in which the import of the proof held in the case will sufficiently appear:—

“ Note.—This, no doubt, is a narrow case, but on the whole it seems to the Sheriff that the balance is against the defender. David Rattray (the defender) and Edmund Kettles went to visit Mary Cook (the pursuer) and her fellow-servant Elizabeth Millar. These men arrived late at night. The two women say they arrived about eleven and remained till about twelve. Kettles says it was ‘fully’ ten when they arrived, and that they left before twelve,’ while Rattray says they arrived about ten’ and left ‘about eleven.’ However this may be, it was a late hour before they left, keeping in view that they had two or three miles to go and be up early to their work next morning. When the men arrived the young women were in bed. The men knocked for them, and they rose to entertain their visitors. The four, however, did not it together and talk. They separated into two parties. Kettles and Millar went together into the kitchen, and Rattray and Cook retired into the byre. It was then quite dark, and yet they remained an hour together in the dark— solus cum soda. What were they doing all this time? It must be held that connection then took place. The Sheriff is at a loss to discover what other reason the defender had for his visit, and as to that part of the case there seems to be little or no difficulty.

Any peculiarity there is in the case is as to the length of time that is said to have elapsed between the conception and the birth. There is no doubt some difference as to the exact date of the above visit. Kettles would place it so early as six weeks and two days' before Martinmas. Cook names it as ‘five weeks’ before Martinmas, Millar as ‘four or five weeks’ before Martinmas, and Rattray as shortly before the term of Martinmas.’ There is no precise agreement between any of the parties as to this date. The Sheriff is inclined to think that Kettles is stretching a point in favour of his friend. If it were five weeks before Martinmas, it would be 305 days after conception; if four weeks 298 days; and if only shortly after Martinmas, it might be 287 days. Had it been even quite fixed that 305 days was the right period of gestation, the Sheriff is doubtful if he would have been entitled to go further than the Court of Session did in the case of Boyd, June 17, 1843, 5 D. 1213. But as it is not fixed that an interval of 305 days must have intervened, and which interval may have as few as 287 to 290 days, the Sheriff is of opinion that in the circumstances the pursuer is entitled to prevail.”

The defender appealed, and argued—It was doubtful on the evidence when the act of intercourse exactly took place. The pursuer herself fixed it at a period which protracted the period of gestation beyond its legal limit. The true date, however, was that given by Kettles, the defender's companion, on the occasion of the alleged visit, viz., “six weeks and two days” before the term of Martinmas of 1878—a date which protracted the period of gestation to the impossible period of 313 days.

Argued for respondent—The pursuer had deponed on oath to the fact that her intercourse with the defender took place “five weeks” before Martinmas, and that the child born 305 days after was the fruit of that intercourse. Assuming that her oath was believed, then the onus lay with the defender of fixing a date which made it impossible that he could be the father of the child.

Authorities— Boyd v. Kerr, June 17, 1843, 5 D. 1213; Gibson v. M'Fagan, March 20, 1874, 1 R. 853; Henderson v. Somers, July 7, 1876, 3 R. 997.