Scottish Court of Session Decisions

Marjory Harper, a domestic servant, raised in the Sheriff Court at Alloa an action of filiation and aliment against John Paterson, fish merchant, Alva.

A proof was led. The facts of the case are fully set forth in the note to the Sheriff's interlocutor.

On 9th March 1896 the Sheriff-Substitute ( Johnstone) pronounced the following interlocutor—“Finds that on or about the 7th day of August last, 1895, the pursuer was

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delivered of an illegitimate female child: Finds that she has failed to prove that the defender is the father of said child: Assoilzies the defender accordingly from the conclusions of the petition.

Note.—“This is in some respects a peculiar case. The pursuer is a domestic servant of thirty years of age, and the defender is a widower of fifty-six. The pursuer does not appear to have accepted the attentions of the defender very willingly. She was ashamed, apparently, to be keeping company with a man so much older than herself. The disparity in age operates, I think, in favour of the truth of the pursuer's story. She would have a natural repugnance to exhibit herself as the paramour of a man of the defender's age had there not been improper relations between them, or had there been anyone nearer her own age with whom she had been intimate, and against whom she could have proceeded. She has not, however, in my opinion, made out her case. Neither she nor the defender were satisfactory witnesses, and both gave evidence which is obviously much exaggerated. All that the pursuer has proved is that she was keeping company with the defender during the summer and autumn of 1894, and that they were occasionally or frequently seen together in the streets of Alva, or on the public roads in the neighbourhood. It is not proved that they were seen together under circumstances which could fairly give rise to suspicion of impropriety. Any other evidence rests on the unsupported testimony of the pursuer. The letter referred to in the evidence, and said to have been written by the defender to the pursuer, has been destroyed by the pursuer herself. What its contents were can only be guessed. It is said to have referred to love and marriage. Even if it is correctly described, such a letter would not necessarily help the pursuer in an action like the present.

“The defender's evidence, except in so far as it is a denial of the paternity, might have been dispensed with. He attempts to account for his whole time during the summer and autumn of 1894 with the view of excluding the possibility of opportunity. I attribute no importance to this evidence. In my opinion it is grossly exaggerated. If so disposed, and if the pursuer consented, it can hardly be doubted that he could have found opportunity for improper intimacy with the pursuer. The pursuer does not appear to have been keeping company with any other man about the time spoken to. She swears positively that she had intercourse with the defender on two occasions in November 1894, and on the whole I think it is probable that her story is true, and that the defender is really the father of her child. Looking, however, to the character of the evidence led, and to the opinion of the Court in the case of M'Inven v. M'Millan, January 13, 1892, 19 R. 869, I do not feel that I have sufficient grounds for holding the paternity proved.”

The pursuer appealed to the Sheriff ( Lees), who on 3rd April 1896 pronounced the following interlocutor—“Kecals the interlocutor of the Sheriff-Substitute of 9th March complained of, and finds that the evidence adduced is relevant to infer that the defender is the father of the illegitimate female child borne by the pursuer on 7th August 1895: Therefore repels the defences, and decerns against the defender in terms af the prayer of the petition,” &c.

Note.—“The pursuer says that in January 1894 the defender, whom she had known for some years, began to keep company with her, and walked with her regularly on Thursday evenings till the end of that year. She further says that he frequently attempted to take liberties with her, but never succeeded till 7th November 1894, when he had intercourse with her in a field, and again on 9th November 1894 in the kitchen of her employer's house, and that he thus became the father of the child which she bore on 7th August 1895. She also says that the defender sought to marry her, and that in August 1894 he wrote her a letter speaking of love and marriage. She states that on 3rd December of that year the defender came to her master's house early in the morning and wanted her to let him in, and that she was so disgusted that she quarrelled with him. Shortly afterwards she found herself pregnant, and she says she wrote to the defender twice on the subject, and as he took no notice she sent a letter to him by Annie Hunter. The defender denies that Annie Hunter ever was at his house. She says that she went twice to his house and succeeded in seeing him the second time, and offered to give him the letter. She adds that the defender asked whom the letter was from, and on learning it was from the pursuer, declined to receive it, as he had had enough of her, and wanted no more of her dirty messages. Now, as he swears that he never received the letters which the pursuer says she posted to him, if this be true, there is no explanation of how the pursuer conveyed any dirty messages to him. Neither is there any explanation from the defender of how he came to be on bad terms with the pursuer in December 1894, for he denies that he went to the house of the pursuer's master and asked the pursuer to let him in, and he also denies that she told him that month that she was pregnant. He says she told him in September 1894 that people were blaming him for her condition; and at one moment he says she blamed him too, and at another that she did not. Now, as the first act of connection between the parties is said to have occurred in November 1894, the defender's statement is, on the face of it, untrue, and I am at a loss to conceive any other object in it than to imply that the pursuer (who had had a child ten years ago) was living a loose life. But in the evidence there is no room for any suggestion of this kind, or for ascribing the paternity of the pursuer's child of 7th August 1895 to anyone but the defender. From the first she attributed it to him. Annie Hunter says the pursuer told her early in December. In February 1895 the

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pursuer's master attacked the defender on the subject, and in March the pursuer herself spoke to him on the point.

The defender's line is to deny most of the statements the pursuer has made; but he not only contradicts himself, but his evidence is in direct conflict with the statements of witnesses on material and suggestive points. He contradicts or corrects himself as to what the pursuer said to him in September. He will admit only one walk with her, and that in September, but he afterwards speaks to walking about with her on another occasion in Alloa for an hour and a half, though eventually he places the occurrence of this walk in summer, and before September. He denies that this meeting occurred by arrangement; but two sentences later he practically admits that it did, and the evidence of the pursuer and Mrs Addison puts the matter beyond doubt. In August he admits he fave the pursuer her fairing at Alva fair, ut denies taking her into the grocer's to get it, or that at parting he asked her to remember what he had said. Annie Hunter speaks to the visit to the grocer's (an immaterial fact) and to the request to the pursuer to remember. The pursuer explains that what she was to remember was to meet the defender to go to Stirling, and Annie Hunter speaks to the pursuer telling her the explanation subsequently; but the defender denies everything about the matter.

The defender admits the prevalence of the rumour that he was keeping company with the pursuer, but denies that there was any foundation for it, either in the way of public or clandestine meetings. Annie Hunter speaks to various meetings between the pursuer and the defender; but these seem generally to have occurred in the evening, owing mainly to the great disparity of the ages of the parties having tickled the humorous sensibilities of the Alva people. In August she saw them riding together on a switchback railway at Alva. Later on the same day she saw them still together. In the end of the following month the pursuer dismissed her from her company as she was going to meet someone. Miss Hunter, however, yielding to the curiosity of her sex, remained long enough to see the defender join the pursuer, and the two go away together. The following month she saw them again together at the same place. Later in the month she saw them together at the close mouth. She says she saw them meet on other occasions, but always on Thursday evenings. Jessie Hunter speaks to a meeting between the parties in the beginning of 1894. This occurred about ten at night, and Paterson had obviously been waiting for the pursuer. Mrs Addison speaks to the arrival of Paterson for the meeting in Alloa, and to the pursuer telling her that it was her sweetheart she was going to meet. The witness saw Paterson arrive; and thereon pursuer put on her things and went away with him. She and Jessie Hunter also speak to the pursuer showing them a letter signed ‘J. Paterson,’ which spoke about love and marriage. The pursuer says ‘J. Paterson’ was the defender. He denies he ever wrote to the pursuer, and tries to prove that the various secret meetings with the pursuer could not have occurred, by the evidence of his brother and his daughter and his time-book. I agree with the Sheriff-Substitute in thinking that he does not disprove the meetings, and that they could occur well enough consistently with the time-book.

I am unable to conceive of any reason for the tissue of falsehoods the defender has told, except his knowledge that the pursuer's story is the true version of matters. It appears to me to be beyond dispute that the defender's evidence is not able to be trusted, and I think there is sufficient corroboration of the pursuer's evidence to be found in the statements of the two Hunters and of Mrs Addison to warrant a judgment in her favour, apart from any consideration of what may be implied from the defender's falsehoods on suggestive details. I notice that the Sheriff-Substitute, who had the advantage of seeing the witnesses, states that on the whole he thinks it is probable that the pursuer's story is true, and that the defender is really the father of her child, but that he feels he has not sufficient grounds for holding the paternity proved. I take this to mean, that as a juryman he would have given his vote for the pursuer, but that as judge he hesitates to say the preponderance of the evidence is that way. I am perhaps more rash, but I think that, even taking the defender's evidence into consideration, the preponderance of the evidence is distinctly with the pursuer. While, if the defender's statements are unable to be trusted, and I think they cannot, then the pursuer's story, in the light of the corroboration it receives, must be sustained.”

Against this interlocutor the defender appealed, and argued—In an action of filiation the pursuer must prove her case in the same manner as if the action was one of alleged breach of contract, and the evidence must be dealt with as in any other case which depended on the ascertainment of disputed facts— M'Inven v. M'Millan, January 13, 1892, 19 R. 369; Young v. Nicol, June 8, 1893, 20 R. 768, Lord Trayner's opinion p. 770. Here there was no sufficient corroboration of the pursuer's evidence.

At advising—