Scottish Court of Session Decisions

Margaret Allan, formerly domestic servant at the Douglas Hotel, Aberdeen, raised an action in the Sheriff Court at Aberdeen against John Stott, a son of the hotel-keeper, for aliment for her twin illegitimate children, of whom she averred that the defender was the father. The children were born on 27th July 1892.

The defender lodged defences denying the paternity, and averring that the father of the pursuer's children was D. Carr, who had gone to America.

A proof was led before the Sheriff-Substitute ( Duncan Robertson) on 28th February 1893.

After the proof was closed the defender presented a petition to the Sheriff-Substitute “to open up the proof, and to allow the defender to adduce Helen Johnston, domestic servant, Saltoun Arms Hotel, Fraserburgh, as a witness in the cause, in order to prove that on a Sunday evening in or about the month of April 1892, in the servants' bedroom within the Douglas Hotel, Aberdeen, the pursuer Margaret Allan stated to the witness that she did not believe she would ever see the father of her child again, and that she would have to bring it up herself; that the father of the child was D. Carr, who had gone or was going to America; and that the pursuer corresponded with D. Carr, receiving letters from him every fortnight or three weeks while she was in the Douglas Hotel.”

In his condescendence the defender averred—“(1) The proposed witness Helen Johnston was a housemaid in the Douglas Hotel, Aberdeen, from May 1891 to November 1892, and occupied the same bedroom with the pursuer Margaret Allan and the witnesses Ligertwood and Simpson. (2) The defender's agent examined her before the proof, but failed to get from her the information which she has now volunteered to give. (3) On 28th February, the day of the proof, Jessie Stott, the sister of the defender John Stott, wrote to the proposed witness the letter herewith produced, making inquiry as to articles of clothing which had been missed from the hotel, and in reply received from her the letter dated 1st March, also herewith produced.” This letter contained the following—“I don't think I told the lawyer of Maggie Allan saying to me that she did not believe she would ever see the father of her child again, and that she would have to bring it up herself. If it is of any use now I am ready to swear to it. I quite forgot about it at the time I saw him.—Yours, Helen Johnston.”

The defender pleaded—“The defender having now discovered (which he was unable to do before) that the proposed witness Helen Johnston can give important testimony in the case, and her statements being material to the issue of the cause, the defender ought to be allowed to lead the further proof craved by him.”

On 4th March 1893 the Sheriff-Substitute refused the prayer of the petition.

“ Note.—I must say I think this is a very clear point. The proof has been closed, parties heard, and the case is at avizandum. The defender now asks to be allowed to examine another witness. The defender cannot say that this witness has come to his knowledge since the proof. On the contrary, he states that his agent precognosced her, no doubt upon this very point upon which he now says she is prepared to speak, but when precognosced apparently she could say nothing in favour of defender's case. To allow her now to be examined would, in my view, be a most dangerous proceeding, and one certainly not borne out or supported by any of the reported cases— Brown v. Gordon, January 27, 1870, 8 Macph. 432; Mabon v. Cairns, October 29, 1875, 3 R. 47.”

The defender appealed to the Sheriff ( Guthrie Smith), who on 22nd March dismissed the appeal and affirmed the interlocutor appealed against.

On 8th April 1893 the Sheriff-Substitute found that the defender was the father of the pursuer's children, and gave decree against him. In his note the Sheriff-Substitute stated that the case was unquestionably a narrow one.

The defender appealed to the Second Division of the Court of Session.

When the appeal was called the defender renewed his motion that he should be allowed to adduce Helen Johnston as a witness in the cause, and also to examine as a witness another person who had been precognosced before the trial but had not been examined at the proof, in order to prove that the pursuer and D. Carr had been seen in Aberdeen together in October, November, and December 1891, and that on one occasion they had gone into a stable together and remained there twenty minutes.

Argued for the defender—The additional evidence should be allowed. The Sheriff-Substitute

Page: 729↓

had stated that the case was a narrow one, and it was always in the discretion of the Court to allow additional proof in special circumstances where justice would be done thereby to the parties to the cause—Mackay's Manual of Practice of the Court of Session, p. 335; Act of Sederunt July 10, 1839, section 83; Brown v. Gordon, January 27, 1870, 8 Macph. 432; Mackie v. Pratt, February 18, 1870, 42 Scot. Jur. 273.

Argued for the pursuer—The defender's motion ought to be refused. The Act of Sederunt said that “very weighty reasons” must be shown. No such reasons had been shown here. Both of the proposed witnesses had been precognosced and might have given evidence at the trial, and no case had been cited showing that the evidence of a person in this position had been allowed after the trial was ended.

At advising—