Scottish Court of Session Decisions

Jane Barr, with consent and concurrence of her father William Barr, farmer, Carnwath, raised in the Sheriff Court at Edinburgh, an action against Peter Horn Bain, insurance

Page: 781↓

clerk, Edinburgh, for (1) £2, 2s. for inlying expenses; (2) £7 per annum for fourteen years from 7th December 1895, for aliment for a female child borne by pursuer on that date, of which she averred the defender was the father; and (3) £200 as damages for breach of promise of marriage and seduction.

The pursuer averred that on 20th July 1894 the defender offered to marry her and she consented to be his wife, that on Sunday 10th March 1895 she, yielding to his importunities, and relying on his promise of marriage, permitted him to have connection with her, and that in consequence of this connection she gave birth to a daughter on 7th December 1895.

The defender in his defences denied the averments of the pursuer, and further averred—“The defender Peter Horn Bain believes and avers that about 1894 and 1895 the female pursuer was indulging in sexual intercourse with several young men living in her own neighbourhood, among them being Adam M'Kendrick, James M'Kendrick, and George Miller, and that one of them is the father of her child.”

The case went to proof before the Sheriff-Substitute ( Hamilton). At the proof the pursuer, in answer to questions during her cross-examination, admitted that Adam M'Kendrick had walked home with her once from the choir singing in 1893, but denied that he had connection with her on that night or on any other occasion. She admitted also that she met George Miller at a social gathering on 17th May 1895, but denied that he had connection with her. Adam M'Kendrick and George Miller were both examined for the defender. Adam M'Kendrick spoke to four meetings he had had in the evening with the pursuer, the first about the end of 1893, the second in July 1894, the third on 17th February 1895, and the fourth in August 1895. When speaking to each of these meetings he was asked by his agent—“Had you connection with the pursuer that night?” These questions were objected to by the pursuer's agent, and the objection was sustained. George Miller spoke to a meeting he had with pursuer on the evening of 17th May 1895. He was asked—“Had you connection with her that night?” The question was objected to by the pursuer's agent, and the objection was sustained.

On 8th June 1896 the Sheriff-Substitute pronounced the following interlocutor—“Finds it proved that the defender is the father of the illegitimate child in question, but finds that the pursuer has failed to prove that the defender promised to marry her, or that she was seduced by him; decerns against the defender for payment of the inlying expenses and aliment sued for; quoad ultra dismisses the action and decerns.”

The defender appealed, and argued in the first place, that the Sheriff-Substitute had erred in sustaining the pursuer's objections to his questions to his witnesses.

Argued for the pursuer—The evidence objected to was totally incompetent. Where charges of this kind were made against a pursuer, the time and place must be the least approximately tabled on record. No time and place were stated in the defender's averment, and thus no opportunity had been given to the pursuer to get evidence to rebut the averments. It was incompetent to prove particular acts without notice being given— Macfarlane v. Young, May 15, 1824, 3 Murray's Reports p. 412.