Scottish Court of Session Decisions

Jane Young, daughter of Andrew Young, miner, Denend, with consent of her father, brought this action of affiliation and aliment against Andrew Nicol, Lochgelly. The pursuer alleged that she was in the habit of going to her work past the railway station at Cardenden, where the defender was engaged as a porter. About the New Year 1892 the defender had connection with her within the station premises, and about the same time of year he had connection with her on four other occasions. As the result of this intercourse a child was born on 5th September 1892. The result of the proof was to show that on several occasions the pursuer and defender had been seen talking together, by various persons, on different occasions, and in suspicious

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attitudes, at night, after the time at which the pursuer averred connection had taken place. The defender denied that he met or talked to the pursuer on these occasions. The pursuer's mother deponed that on pursuer's information she charged the defender with being the father of the child, and that he admitted the paternity. This the defender denied.

The defender swore that about New Year 1892 he, one morning, within the station premises, saw the pursuer having connection with one of the railway company's employees. The employee deponed that this statement was true. The pursuer denied it.

Upon 16th October 1892 the Sheriff-Substitute ( Gillespie) found that the defender was the father of the pursuer's child, and gave decree for aliment, &c., in the usual terms.

“ Note.—… The defender's agent said that if all that the witnesses, other than the pursuer, said were held as proved, it would not amount to suspicious circumstances. Perhaps not, though it must be kept in view that what would not amount to suspicious circumstances in the case of a person of average capacity, assume a somewhat different aspect where the girl is more or less weak in mind. The question naturally suggests itself, why should the defender have been seeking the pursuer's company at all. It could hardly have been on account of the attractions of her conversation. But the really important question is not whether the defender might perhaps have safely admitted all that is proved, but whether by his denial of material circumstances which did take place, and which he could not well have forgotten, his testimony has been seriously discredited.

There is sufficient evidence, in the Sheriff-Substitute's opinion, to warrant the conclusion that contrary to the defender's statement he was often, about the period to which this inquiry relates, in the pursuer's company alone, not only in the one place where he admits standing with her, but in other places; that he came to her house one night and tapped at the window for her to come out; and lastly, that after the pursuer became pregnant he had the conversation with her mother to the effect stated by that witness, in which he promised to come to the house to settle.

There remains the remarkable evidence for the defence given by George Doig. The pursuer's agent said what is unquestionably correct, that if the defender had connection with the pursuer at a time corresponding to the birth of the child, she would be entitled to decree against him even though Doig had connection with her about the same time. But if it were certain that Doig had connection with her, her denial of this would discredit her so fatally that her statements in regard to the defender could not be depended on. A story like that told by Doig and the defender is difficult to disprove, but the Sheriff-Substitute is sceptical about its truth. The story is obviously open to a good deal of observation. …

On the whole, therefore, the Sheriff-Substitute thinks that the pursuer is entitled to decree.”

Upon appeal the Sheriff ( Mackay) adhered.

“ Note.—The opinion of the late Lord President, when Lord Justice-Clerk, which formed the ground of the decision in M'Bayne v. Davidson, 22 D. 738, states the rules which have been generally applied in Sheriff Courts as to the evidence necessary for the pursuer's success in filiation cases. It is constantly referred to, and frequently partially quoted, but I think it worth while to quote it fully, for I shall follow it until it is altered by a decision of greater authority. ‘The evidence is to be dealt with as in other cases. The parties are the principal witnesses; they know the facts which lie at the bottom of the case, and what the Court has to consider is, on the whole evidence, on which side is the balance of credibility. Where the parties contradict each other, the Court are put in the position of a jury to decide on which side is the balance of credibility. Still, however, the defender is entitled to say that the pursuer must prove her case.’ I was pressed in this case, as I and doubtless other Sheriffs have been in other cases of the same kind, with certain dicta of the present Lord Justice-Clerk and Lord Trayner, and an apparent conflict, at least on the face of the reports, between their opinions and that of Lord Young as to what corroboration of the pursuer is necessary. In M'Kinven v. M'Millan, June 13, 1892, 19 R. 369, the Lord Justice-Clerk is reported to have said, ‘A pursuer of such an action must prove her case like any other pursuer, and she does not prove it unless she brings evidence truly corroborative of her evidence, such as would be held sufficient corroboration of the evidence of a party interested in the issue in any ordinary case;’ and Lord Trayner, ‘The rule applicable to filiation cases is now the same as that which applies to any other kind of case which depends on the ascertainment of disputed fact. The pursuer must prove her averments in an action of filiation just as she would require to prove her averments in an action on a contract where the alleged contract or alleged breach of contract, or other allegation on which the action is founded, is disputed.’ Lord Young, on the other hand, who dissented from the judgment in favour of the defender, observed, ‘In the present state of the law we take the whole evidence together, and if we think the woman's story true, we give decree. We require some corroboration. But little will do. If we think that he ( i.e., the defender) lies, that is a circumstance that we are entitled to act upon. It is not that his lie proves the case, but that his falsehood is a thing we are entitled to take account of in considering whether we may safely act upon the women's statement if we believe it.’ In the more recent case of Costley v. Little, November 18, 1892, 30 S.L.R. 87, in which both Sheriffs and the Court decided in favour of the pursuer, holding a letter,

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which the defender denied having written, but which was proved to be his, sufficient corroboration of the pursuer's oath, Lord Young made the following remarks—‘I do not think the falsehood of either party to the case is ever altogether unimportant; it may be of more or less importance, according to circumstances. The proof of any number of falsehoods on the part of the defender unconnected with the case would not support the case of the pursuer; it would only discredit the testimony of the defender. But where the falsehood is on matters connected with the case, it may be of great importance, and, indeed, may be conclusive, taken in connection with other evidence which would not have been sufficient without it.’ Lord Trayner, on the other hand, said—‘If a defender in his evidence denies the pursuer's statement, that cannot, in any view of it, be regarded as a corroboration of the pursuer. For if the defender's denial is true, it is a contradiction of the pursuer; if it is false, or is believed to be false, it is not evidence to any effect, it is simply discarded as false. A false statement cannot afford any corroboration; it is not believed.’“It is of considerable importance for the future guidance of the Sheriff Courts to ascertain which of these apparently conflicting views as to the evidence necessary in filiation cases ought to prevail, and I have found it necessary to consider this point in the present case. The two recent cases afford no light as precedents, for they merely show what was in the former case considered insufficient, and in the latter sufficient corroboration of the pursuer's oath, as it happened in each case, a letter by the defender. The solution of the difficulty, and the safest rule, is, I think, to found in the opinion of the late Lord President in M'Bayne v. Davidson. The question is a jury question or issue of fact, but of fact of which the two parties (unless in some quite exceptional case) alone have knowledge. If, when they contradict each other as to the fact (as they do in every contested case), there is notwithstanding an admission by either of acts, writings, or conduct which render the evidence of that party on the main issue unworthy of credit, or there is a denial by either of facts material to the case otherwise clearly proved by third parties, which (in like manner) render the evidence of that party unworthy of credit, while the evidence of the other party is not open to any observation against its credibility, and is supported by the circumstances of the case, such as the open relations of the parties, the terms of their written correspondence (if any), and their conduct towards each other, both before and after the birth of the child, the Court, as a jury, is entitled to act upon the testimony it believes. It appears to be this view of the matter which has led Lord Rutherfurd Clark and other Judges frequently to confine their judgments in such cases to a verdict of ‘proven,’ when that is, in their opinion, the result of the evidence as a whole, or of ‘not proven’ when the evidence leaves the case doubtful. A false statement cannot, of course, as Lord Trayner says, ‘afford in itself any corroboration; it is not believed.’ But when it is not believed only the opposite statement remains, which is believed, and is sufficient, if not by itself, at all events with the kind of corroboration which exists in nine out of ten filiation cases. I assume, of course, that the falsehood or falsehoods satisfy the Court that the party is not telling the truth on the main issue. Still, as the late Lord President expressed it, ‘the pursuer must prove her case.’ He does not add, like any ordinary case of contract, or breach of contract, and it is thought rightly, because filiation cases differ from such cases, not only because the two principal witnesses must be the parties (for this may happen in other cases), but also because the cardinal fact is concealed, so that there is almost invariably an absence of direct testimony, except as to circumstances and incidents from which inferences may be drawn, but by which the main fact cannot be proved. I do not think the Lord Justice-Clerk or Lord Trayner really intended to differ from the late Lord President. Their judgment in M'Kinven's case was given because they thought the Sheriff-Substitute had gone too far in holding the pursuer's consistent story sufficient proof without other corroboration, which they held (contrary to Lord Young's view) the defender's letter did not amount to. Lord Trayner, no doubt, criticises Lord Benholme's language in M'Bayne v. Davidson, that ‘the defender, by giving a false account of the matter, has afforded that corroboration which would be otherwise awanting,’ and it is perhaps not quite accurate language, but what Lord Benholme meant, and what that case decides, is that the contradiction of the defender by a third party on a material point which leads the Court to disbelieve his evidence on the cardinal fact, leaves the pursuer's evidence (if unimpeachable) uncontradicted, and entitles the Court, if it believes her statement on the evidence as a whole, to decide in her favour. Applying therefore the rule applied in M'Bayne v. Davidson to the present case, I find that the Sheriff-Substitute, who saw the witnesses, believed the pursuer, and disbelieved the defender, both at first and after reconsideration of the proof. This is not conclusive, for if it were, appeal would be an idle form, but the impression of the Sheriff-Substitute as to the credibility of the witnesses is not a circumstance which the Sheriff can leave out of account.

Applying to the evidence as a whole the test suggested in M'Bayne's case, the balance of credibility appears to be decidedly on the side of the pursuer, and I concur with the Sheriff-Substitute that she has proved her case according to the rules which have generally applied in such cases.”

The defender appealed.

At advising—