Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Aberdeen, in an action of filiation and aliment. The summons alleged that the child was the result of intercourse which took place “in or about the month of April 1868.” The defence was a simple minute of denial; and on the record so framed parties went to proof. The proof having been closed and been debated, but no judgment pronounced, the defender presented a petition for additional proof, setting forth that, owing to the vagueness of the pursuer's summons, he had not been prepared to meet the evidence which she had led, and that he was now in a position to meet it with an alibi, the details of which were specified in the petition. The Sheriff-Substitute ( Comrie Thomson) granted this petition. He added the following note:—“The proof was taken and closed on Saturday the 8th. A debate followed, and in consequence of a doubt, arising from the date of birth having been proved to be different from that set forth on record, the Sheriff-Substitute, at the request of the pursuer, stated that he would not write his judgment till Monday, in order that any authority to be found on the point might be brought under his notice. On Monday the defender made the application now embodied in the petition. The course followed is very unusual, but seems justified by the provision of the 83d section of the Act of Sederunt of 1839.” The Sheriff recalled, and refused the prayer of the petition, holding that no “weighty” reason had been shown in terms of the Act of Sederunt of 1839. In his note the Sheriff observed:—“The pursuer's evidence was of the kind usual in such cases, the ground of surprise; and that the defender was anxious and confused might be stated in any case of this description; and to allow the defender to aprove an alibi after the proof was closed and parties heard, would be of very pernicious consequence in actions of filiation. The Act of Sederunt requires very weighty reasons to be shown to justify further proof.”The Sheriff-Substitute then advised the case upon the proof as led, and decided in favour of the pursuer. The defender thereupon brought the present appeal.

J. A. Reid, for him, contended (1) that the pursuer's case was not made out as the evidence stood; (2) that even if it were, he should be allowed an opportunity of rebutting it by the additional evidence which he had tendered.

Buntine in answer.

The Court recalled the Sheriff-Substitute's interlocutor, and held that, even taking the case as it stood, the pursuer had failed to make out her case. The corroboration relied upon by the pursuer was totally insufficient. That consisted mainly of the testimony of a girl thirteen years of age, her niece, who spoke to circumstances of so scandalous a character as to make them almost incredible. Their Lordships, more-ever, indicated the opinion that, looking to the vagueness of the summons, the defender might very well have been taken by surprise at the proof, and was, therefore, fairly entitled to ask for an opportunity of supplementing his evidence. The Act of Sederunt of 1839 no doubt required “weighty” reasons for an allowance of additional proof, but that only applied when there had been a judgment, as well as a closing of the proof.