Scottish Court of Session Decisions

Mrs Jane White or Kerr, with the consent and concurrence of her husband Samuel Kerr, shoemaker, Sanquhar, brought an action in the Sheriff Court at Dumfries against William Lindsay, shovel finisher, Crawick Bridge, near Sanquhar, concluding for inlying expenses and aliment of a child borne by her upon 5th January 1890, of which she alleged the defender was the father.

The pursuer and her husband were married upon 30th August 1889.

The pursuer averred that she had repeatedly had carnal connection with the defender, and especially on or about the 7th day of April 1889. The defender admitted that he had had connection with the pursuer prior to the month of March 1889. He averred that the pursuer and Kerr had had connection with each other repeatedly during the months of March and April 1889, and that it was in consequence of that connection that the pursuer had become pregnant. This the pursuer denied.

A proof was allowed.

The pursuer repeated her averments upon oath, and further deponed that Kerr offered her marriage upon 12th April; that she accepted him, but said that she would have to see the defender; that three weeks after 7th April she told both her mother and Kerr that she was afraid that she was with child to the defender; that Kerr's family and hers had always been intimate, but that she never walked with him until 10th April; that after she told him of her condition he stopped walking with her, but came to her mother's house; that they renewed their walks about three weeks before their marriage, but had only about two walks then; and that she had never had connection with Kerr until they were married. In cross-examination she stated that she was at a ball upon 29th March; that Kerr was there; that she had several dances with him; that they were in the same party driving home; and that he left her at her mother's door.

Samuel Kerr, her husband, gave corroborative evidence. He also deponed that when he married the pursuer he was forty years of age, a widower with four children, and an elder in the United Presbyterian Church; that he had been called before his kirk-session to explain why the child was born so soon after marriage; and that he had written to the defender the day after the birth of the child to remove it and have it nursed elsewhere.

John Hiddleston, aged twenty-two, deponed that the defender in a conversation upon 17th August said the pursuer was going to have a child to him, and that he had offered to marry her, but she had refused.

The pursuer's mother deponed to seeing the defender pass the window upon the evening of 7th April; that the pursuer was out at that time, and that in the end of April or beginning of May her daughter confessed to her that she was afraid she was going to have a child; that the defender was the cause of that, and that the mischief had happened the night he had been seen passing the window.

The defender denied the accuracy of Hiddleston's statement. He deponed he had only once had connection with the pursuer in the end of February, and had only offered to marry her if the child came to his time.

One witness deponed to having seen the pursuer and Kerr together in March, and another to having seen Kerr walking with his arm round the pursuer's waist in April or the beginning of May.

Upon 21st May 1890 the Sheriff-Substitute ( Hope) granted decree in favour of the pursuer.

“ Note.—The rule Pater est quern nuptiœ demonstrant does not apply to the present case. To enable it to apply the child must have been conceived during the period of wedlock. As Mr Dickson says—‘This presumption applies only where there is such an interval between the marriage and the birth that by the laws of nature the conception can reasonably be believed to have taken place during marriage’—(sec. 134).

“The pursuer's child was born on 5th January last, and her marriage did not take place till 30th August 1889, so that no presumption arises out of the fact of the marriage. The defender's case is rather that there is a presumption that the child is Samuel Kerr's, seeing that he married her although he knew that she was pregnant. I think that is a fair argument to use, but a presumption — especially one which is not the subject of a rule of law—is not proof, and this presumption is not an irresistible one. I have known a good many cases where men have acted in the way in which Samuel Kerr says he has done. It is all a matter of taste. Some men would not marry an unchaste woman; others would, and many do. Very few would marry a woman who was pregnant to another man, but experience shows that some men do. Again, many men—I hope most men if they did so—would rather seek to hide their wife's shame than expose it in a Court. But this again is a matter of taste. To some extent it may be a matter of compulsion with Mr Kerr, because he appears to run the risk of having to stand discipline unless he can show that the child was begotten by another man. I do not think there is any evidence to show that he was ever unduly intimate with the pursuer before marriage, and the trifling circumstances upon which the defender seems to lay stress do not seem to me even to give ground for suspicion that such was the case.

“It was argued for him that the fact that he was an elder in a church raised a presumption in his favour. Left to myself, I would not have so held, but in the case of Martin v. Smith, May 17, 1834, 12 S. 604, this view was entertained by the Court, and it has been acted on since. As regards the defender, the points which tell against him to a certain extent are his admitted connection with the pursuer at a date prior to the conception and her oath. It has been held that the combination of such facts as these with continued opportunity

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are sufficient to prove a pursuer's case. What is to be considered opportunity is a question of circumstances. I have generally held that there was opportunity either when the parties lived in the same house or at the same farm-steading, or (where they lived at different places) when they had been seen together in suspicious circumstances. Here the opportunity is very meagrely established, unless the fact that the parties lived in the same place, as they did, when connection admittedly took place is sufficient. Margaret Kerr, the pursuer's mother, says that on the evening of Sunday, 7th April 1889, she saw him pass her house, that the pursuer had gone out before that, and that she did no come in till between nine and ten. Further, she says that the defender was along with Thomas Mathieson, and Mathieson does not deny it. He says that he has been in the defender's company many a time on Sunday evenings, but can give no date. The defender says he did not walk with the pursuer at all in April, and only once in May, but his examination by the Court brought out a contradiction of this. He must therefore have had an object in minimising his walks with the pursuer. The 7th of April is the date when pursuer says that the child was begotten, and that defender had connection with her that evening. Lastly, when pursuer's mother found out, about three weeks afterwards, that her daughter was pregnant, the latter told her that defender was the cause of it, and that the mischief happened on 7th April.

“On the whole, I am of opinion, though I have arrived at it with hesitation, that opportunity has been proved.

“I also think that the alleged admission of the paternity is proved. From the manner of the witnesses, I believe Hiddleston and Sharp rather than the defender, and M'Millan's evidence did not shake my opinion. I do not see any reason to believe that Hiddleston concocted the story. He told it long before this case was or could be thought of, and he gave his evidence apparently with reluctance.”

The defender appealed to the Court of Session, and argued—There was an almost irresistible presumption of fact that Kerr was the father of this child arising from his having married the pursuer well knowing her condition. That presumption he had failed to rebut. There was also direct evidence at least suggesting undue familiarity about the time this child must have been begotten. The cases of Gardner v. Gardner, May 30, 1876, 3 R. 695— aff. May 17, 1877, 4 R. (H. of L.) 56, and Reid v. Mill, February 8, 1879, 6 R. 659, were directly in point.

Argued for pursuer—There was absolutely no direct evidence of undue familiarity between her and her husband before marriage. The presumption against the husband was only one of fact. The maxim pater est did not apply. The defender admitted connection at an earlier date, and that with subsequent opportunity and the pursuer's oath, as here, entitled the pursuer to decree. There were no grounds for disturbing the Sheriff's judgment.

At advising—