Scottish Court of Session Decisions

That evidence is incompetent evidence and I attach no importance to it.

Accordingly there is really no oral testimony substantiating the allegation in the summons that the defender and M'Cormack committed adultery with one another. But then the averment which the pursuer makes in the summons is this—“That the defender frequently committed adultery with M'Cormack, and in particular on 4th January 1910 the said Joanna M'Cormack gave birth to an illegitimate female child, of which the defender is the father.”

Now the summons containing that averment was served personally on the defender, and I attach the greatest importance to that fact. Indeed, had it not been that there had been personal service on the defender, I should have been unable to give the decree which is sought, but I regard it as a vital part of the proof that personal service was made on the defender. He was thereby certiorated that these averments were to be adjudicated upon in this Court, and he has stated no defence to the action.

Further, it is proved that he had intimation given by the Edinburgh agent that this case would be determined by me on this date, and he has not appeared here. Furthermore, the woman Joanna M'Cormack had intimation made in the ordinary way that this charge was made against her, and she had an opportunity of appearing here and repudiating it if it were not true. She has not appeared here and stated any defence to the action, and on being cited through the post to come here and give evidence on the matter she returned the citation to the agent, marking it “refused.” She was then personally cited to appear as a witness by messenger-at-arms, and had tendered to her the amount of her expenses and railway fare, and refused to come.

The other evidence in the case is documentary evidence, but it seems to me that it connects the defender John Mathieson with the birth of the illegitimate child which undoubtedly M'Cormack bore on 4th January 1910, the date libelled in the summons.

No. 7 of process is an extract of the birth certificate of that child, a female child born on 4th January 1910, of which Joanna M'Cormack is said to be the mother. There is nothing on the face of this certificate connecting Mathieson with the child, but it appears from an extract of a decree of the Sheriff Court of Forfarshire, which is No. 12 of process, that this woman Joanna M'Cormack raised an action of affiliation and aliment against a defender who is described as John Mathieson, broker, 52 West Port, Dundee.

Now that is undoubtedly the address of John Mathieson as stated in the summons in this case, and the only difference is that he is described in this summons as a commission agent carrying on business at that address and not as a broker; but the solicitor from Dundee explained that Mathieson had been a broker but had recently started in business as a commission agent.

I have therefore no difficulty in holding that the defender against whom the Sheriff at Dundee pronounced the decree in the action of affiliation and aliment at the instance of Joanna M'Cormack in respect of this illegitimate child borne by her on 4th January 1910 was the defender in this action, John Mathieson, the husband of the pursuer.

On the Sheriff reaching the conclusion in that affiliation action at which he arrived, it is the duty of the Sheriff Clerk under the statute which regulates registration of births to send a notice to the registrar, and on that being done the registrar's duty is to make certain alterations on the register and to put on the extract certificate of birth a docquet, which has been done and which is now before me. That docquet states—“In the fourth column of entry No. 50 in the register book of births for the year 1910, before the name of the child's mother insert John Mathieson, broker, on the authority of a certificate in the form of Schedule (F) to the following effect.”

Then he quotes the said certificate, which is that of the Sheriff Clerk, and which in effect sets forth the history of the affiliation action and the fact that a decree was arrived at by the Sheriff finding that the defender in this consistorial action was the father of the illegitimate child. Accordingly I hold that the documentary evidence connects conclusively the defender Mathieson with this woman M'Cormack, and establishes the fact that he was the father of that illegitimate child. When I give effect to the documentary evidence and take into account the circumstance that the defender and M'Cormack are charged with committing adultery with one another, and although they had ample notice of these proceedings they refused to appear, I think have sufficient evidence on which to hold the case proved, and I shall accordingly grant decree, with expenses.