Scottish Court of Session Decisions

The bearing of this fact is matter of serious controversy between the parties. I do not think it can be maintained that menstruation cannot occur during pregnancy. In my opinion it is clearly proved that it may. But, on the other hand, in the vast majority of cases menstruation does not occur after conception. One of the witnesses for the defence put the percentage of cases where it occurs as 1 2 per cent., and I think they may quite correctly be spoken of as rare. In ordinary life the occurrence of menstruation is accepted as excluding the existence of pregnancy, but that cannot be accepted as universally true.

The defender maintains that complete connection did not take place between him and the pursuer while he was living in her parents' house in December 1916. He admits, however, acts of great sexual familiarity, which he speaks of as “indiscretions,” and while it may be probable that he thought he had prevented these “indiscretions” from going so far as to account for the pursuer's pregnancy, I think he came to be of opinion that by “mistake” or “accident” he had failed in this respect. I quite appreciate the significance of the fact that the defender was engaged to be married to the pursuer, that he was evidently very fond of her, intended to marry her, and believed her to be in every way deserving of his affection and worthy to be his wife. But still I cannot, with all these considerations in view, find that we are entitled to reverse the finding of the Sheriff-Substitute and to hold that the pursuer has not proved that she and the defender had connection sufficient to account for the pregnancy and the birth of the child.

Assuming then that the pursuer had connection with two men—Baxter in November, and the defender in December (for I think the pursuer must be held as practically admitting that she had the double connection)—and that the dates of connection are such that, so far as the period of gestation is concerned, either of these men might have been the father of the pursuer's child, what is the result?

I do not doubt in any way the soundness of the decision in the case of Butter v. M'Laren, 1909 S.C. 786. But I do not think that the existence of such a state of facts as I have set out in the immediately preceding paragraph in itself necessarily prevents the woman from obtaining a decree establishing the paternity of the child against either of the men. The double connection is a relevant and material circumstance to which due weight must be given, but it is not in my opinion in and by itself conclusive of the question. It may even give rise to doubts, but as has been more than once said in affiliation cases the Court has often to give a judgment which it is constrained to give and which yet may not be in accordance with the real facts. But I do not think that the fact that doubts may exist as to a question of fact, even if the doubts are due to the pursuer's own conduct, is sufficient to compel us to find the case she seeks to establish has not been proved. There are many cases in the books where the conduct of the pursuer in an action of affiliation has given rise to doubt and difficulty, and where the Court has yet found itself entitled on the evidence to pronounce decree in her favour. In this case, taking the evidence as a whole, and especially having regard to the evidence as to menstruation, I am of opinion that the pursuer has sufficiently instructed that the defender is the father of her child, and that she is therefore entitled to the decree she asks for.

Lord Dundas—The proof in my judgment discloses the pursuer to be an utterly unreliable witness and a wanton and worthless woman. She is constrained to admit that during the absence of the defender, to whom she was engaged to be married, and with whom she professes to have been in love, she had sexual intercourse with a Canadian named Baxter. Within a short period thereafter she voluntarily entered the defender's bed and permitted indecent familiarities, which both the learned Sheriffs consider were such as might result in the conception of a child. She afterwards gave birth to a child, “at a date”—to quote the Sheriff-Substitute's words, with which the Sheriff agrees—“which might quite correspond with either Baxter or the defender being the father of it.”

Prima facie, therefore, the pursuer's conduct would, in my judgment, result in such uncertainty as to the child's paternity as would debar her from fixing it upon either of the two men. This result would be in entire accordance with opinions expressed in this Division in Butter v. M'Laren, 1909 S.C. 786. The exact point here ( ex hypothesi) raised was not present in that case, for the woman there did not admit connection with the third party, Mann; but the judgments to which I refer, though in a sense obiter, were very carefully considered by the Judges of the Division as it was then constituted, of whom as it happens I am now the sole survivor. I adhere to but refrain from quoting the opinion I expressed in Butter's case (at pp. 801 ft., 802) which had not only the authority of Lord Bankton but also the cordial support of the then Lord Justice-Clerk, and I think the concurrence of Lord Low. The Lord Justice-Clerk, dealing with the view that if a woman (as he puts it at p. 803) “indulges her passions with several men she can choose the most satisfactory one from the aliment-paying point of view”—and I cannot help observing that in the case before us while Rankin is available as defender, the Canadian appears to have departed beyond the pursuer's ken—says “that idea is intelligible, but it is not justice. The opposite doctrine is expressed distinctly by Bankton, when he says that ‘the woman by her own viciousness has rendered the father uncertain.’ That seems to me to be sound commonsense.”

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