Scottish Court of Session Decisions

In this action of filiation and aliment the pursuer averred on record that in January and February 1879, when she was in the service of a Mrs Harrow, at Wemyss, the defender, who was a carter in Wemyss, had sexual intercourse with her in the kitchen and in a court belonging to her mistress, the result of which was that she gave birth to a male child on the 5th October 1879, that after the birth of the child the defender frequently called at the pursuer's house, and in December 1882 called and paid a sum of 3s. to account of her inlying expenses, but had made no further payments. The defender denied these averments. The action was raised in August 1883.

A proof was led, in which the pursuer deponed to the truth of her averment of connection in January and February 1879. This the defender denied. There was some slight evidence to corroborate the pursuer, which is not material to be here narrated.

The pursuer also led evidence of a visit to the house in which she lived in 1881, and of familiarities and several acts of sexual intercourse with the defender in 1882, of none of which was there notice on record. She herself deponed to them, and was corroborated in her deposition on this point by several witnesses. The defender denied them.

The Sheriff-Substitute ( Gillespie) found in fact that the pursuer gave birth to an illegitimate male child on 5th October 1879, and that the defender was the father thereof; found in law that he was liable in inlying expenses and aliment as craved.

Note. — This is in some respects a narrow case. The delay in bringing the action is a circumstance unfavourable to the pursuer, and while, on the whole, her statements, when they can be tested by neutral evidence, are fairly supported, there are some discrepancies.

[After examining the evidence, and referring to that part of it on which he held that the defender's denial of any familiarity in 1882 was disproved

Reference may be made to the often-cited case of M'Bayne v. Davidson, February 10, 1860, 22 D. 739, not as a precedent, because every filiation case is so eminently one of circumstances that it is hardly possible that one case should be on all fours with another, but as an illustration that when the defender is discredited no great amount of corroboration may be required to establish the pursuer's case. The opinions of the Judges are instructive, as showing the radical changes which the Evidence Act made in the way in which filiation cases must be dealt with, and some of their Lordships' observations are very applicable to the present case.

“The Sheriff-Substitute wishes to observe that it would have been more in accordance with correct and fair pleading if the pursuer had given notice in the record that she was to prove acts of connection in 1882. The correct rule humbly appears to him to be, that while evidence may be given of familiarities as part of the proof without notice on record, the pursuer ought to set forth concisely in her condescendence the place, and, as near as possible, the date of each act of connection on which she is to lead specific evidence, even though some of these acts of connection may have taken place long before or long after the time that the child must have been conceived. Where this is not done the defender may justly object to the evidence being led of such acts of connection on the ground of surprise. In the present case, however, it would not affect the Sheriff-Substitute's opinion on the case if the passages in the evidence to the effect that the defender had connection with the pursuer in 1882 were thrown out of consideration.”

On appeal the Sheriff ( Criohton) (after allowing an additional witness to be examined, who gave evidence tending to corroborate the pursuer as to her relations with defender in 1879) adhered.

“ Note.—This is very narrow case, but on consideration of the evidence the Sheriff has come to agree with the Sheriff-Substitute that it is sufficient to entitle the pursuer to decree.”

The defender appealed, and argued—There was no sufficient evidence of familiarities and intercourse during the period of conception to prove that he was the father of the pursuer's child. The only other evidence adduced was evidence of such acts of intercourse from October 1882 and onwards, which was a period long after the date of the conception of the child. Now, this evidence was incompetent, as no notice of it had been given on record. Such notice should have been given, according to the rules of pleading.

Page: 352↓

The evidenee, then, ought not to be entertained either as proving the defender's relations with the pursuer at the time of conception, or as shaking his credit in consequence of his denial of proved facts.

At advising—