Scottish Court of Session Decisions

Lord President—In this case I have come to the conclusion that the interlocutor of the Sheriff-Substitute is right. There is no question as to the fact of connection between the pursuer and the defender; the proof of that is so overwhelming that it cannot be controverted, and both Sheriffs have taken that view of it. The only difficulty arises from the circumstance that it is necessary to hold that an unusually long period of gestation elapsed if the birth of the child is to be referred to the last proved act of connection. That period is one of 306 days.

There is only one witness examined in the case upon this matter—Dr M'Kenna—and I think the result of his evidence fairly comes to this, that he is unable to say that the period is so long as to make the paternity of the defender an impossibility. On a matter like this I think it would be unfortunate if we were to consider ourselves bound by the evidence of one witness in a case in which it was quite natural that there should not be a large amount of expert testimony led. I have therefore not felt myself to be restricted to the evidence of Dr M'Kenna, but have thought myself entitled to consider the matter in the light of what has been said by learned judges in other cases, and of what one knows to be the opinion of experts as disclosed in medical books.

It is absolutely clear that neither in law nor in medical science is it possible to fix an actual number of days as the extreme period of gestation. In certain systems of law the matter has been dealt with by statute, and a limit has been arbitrarily fixed, but in our system there is no such limit. That does not lead to the conclusion that a period might not be submitted to the consideration of the Court of such length that the Court would refuse to hold that the parentage had been proved. The Court is left free to deal with each case as it occurs. In the present case, although the period is unusually long, there is nothing that has led me to think that it would be beyond the province of the Court to hold that it is not impossibly long, Then we have the undoubted fact of connection, the birth of the child, and the absence of suggestion of any other man as the father. The result seems to me to be inevitable.

I am therefore of opinion that your Lordships should allow the appeal, recal the interlocutor of the Sheriff, and restore the interlocutor of the Sheriff-Substitute.

Lord Kinnear—I concur.

Lord Mackenzie—I am entirely of the same opinion. The learned Sheriff in his note puts the matter thus—“The question therefore is whether a woman of her character, according to her own account, is more likely to have had connection with some other man subsequently, or that the period of gestation of her child was so prolonged, as it must have been if her story is true? I think the first alternative is the more probable.” Since the hearing I have gone through the evidence, and also through the letters which are produced, and I will content myself with simply saying that I cannot take the view which the Sheriff has taken. I am of opinion that the case for the pursuer is entirely proved.

Lord Johnston did not hear the case.