Scottish Court of Session Decisions

But the peculiarity of this case arises from the fact that the pursuer is a married woman. She is the wife of a James Brodie, a labourer, who has for about three years been working in or near Dundee. The pursuer, when examined as a witness in the filiation process, gives a very bad account of herself, for she says—“I have been twice married. I have three illegitimate children by different men, one before I was married and two after. I was married to my present husband (that is James Brodie) four years ago. We never lived together except the first night.”

Now, the question is—Whether, by force of the maxim Pater est quem nuptiœ demonstrant, this child, born on 9th May 1871, is the legitimate son of James Brodie? If he is, then of course the pursuer, notwithstanding the evidence led in this cause, can have no claim against the defender. The maxim that the husband of the mother shall be presumed the father of the child is well settled and most reasonable. It is generally enough for a child alleging legitimacy to prove that he has been born during the marriage. The law will draw for him the inference of legitimacy. But it is now quite settled that the presumption of legitimacy thus created is not absolute. It may be rebutted. The proof of impossibility of access has long been held sufficient to destroy the presumption. At one time it was supposed that access could not be considered impossible unless the sea rolled between the two spouses. But that idea has now passed away. The great changes which have taken place, and the extraordinary increase in the facility of locomotion, have rendered the limitation of impossible access to the case of separation by the sea, quite absurd. Crossing the sea is by no means impossible or difficult. It is now much easier to pass from Calais to Dover than to travel from Wick to Edinburgh or from Kirkcudbright to Aberdeen. The admission of other evidence of impossibility of access than that of separation by the sea is now settled. There are many cases both in England and in Scotland, which were very judiciously presented to us by Mr Jameson, leaving no room to doubt on this point.

But it is necessary to go farther than this, and I do not hesitate to do so. I think it is now recognised as sound law that the fact that access or intercourse was physically possible, is not, of itself, sufficient to fix the status of legitimacy. The cases must be very rare indeed where access or intercourse is proved to have been physically impossible. I do not think that necessary. I do not think it reasonable to expect it. If the result of a careful consideration of all the facts and circumstance proved be, that the Court is satisfied that there actually was not access or intercourse at or about the period when the child must have been procreated, and if the Court are also satisfied that another man had access and had intercourse with the wife at that time, then the presumption from the maxim Pater est quem nuptiœ demonstrant cannot receive effect in the face of such evidence. The presumption is rebutted by such evidence as is sufficient to satisfy the judicial mind that the husband could not be the father of the child. If there be clear evidence to the satisfaction of the Court that de facto a husband had not intercourse with his wife, and could not be the father of his wife's child, that child will be held illegitimate; though the utter impossibility of access be not established by the evidence. It may be physically possible, and yet in the circumstances, and according to the evidence, the possibility may be excluded. Nothing less than complete satisfactory evidence can be sufficient, but if there be such evidence, then, in the face of it, the presumption cannot receive effect. There is plenty of authority for this in the more recent decisions, both in Scotland and in England. It is the opinion of Lord Curriehill, as Lord Ordinary in the case of Mackay v. Mackay, Feb. 24, 1855, 17 D. 494, and that opinion is accepted as correct, and authoritatively approved by Lord President Colonsay, who expressly states it to be “sound law.” Lord Ivory and Lord Deas expressed in that case the same opinion. I could, if it were necessary, quote other authorities to the same effect. It is enough to remind your Lordships of the opinion of Lord Stair (Stair, iii, 3, 42), that “with us absence is not necessarily beyond sea;” and he adds—“with us it will be sufficient that his (the husband's) absence be special and circumstantiate, that there remaineth no doubt that he could not have been present.” Professor Bell (Prin. 1626) states the question as one of general evidence.

Taking this view of the weight and nature of the presumption, I think that in this particular case there is really no doubt that James Brodie, the husband of this pursuer, had, in point of fact, no intercourse with her at or about the time when this child must have been procreated. Her own statement on oath to that effect is quite distinct. If there were any opposing evidence on the subject, then her conduct and her bad character would greatly impair the force of her testimony. But there is no opposing evidence, and the proof subsequently led is entirely to the same effect as her own statement.

I think it would not be incompetent, if it had been necessary, to examine the husband as a witness in this matter. But the evidence which we already have appears to me sufficient, and it is desirable to avoid further expense. The husband's time is accounted for, and the wife's time is accounted for, and, although the space which divided them did not exceed 15 or 16 miles, I think it is satisfactorily proved that they did not meet, and could not have had conjugal intercourse. The presumptions of fact in this case, as well as the testimony of the witnesses, and the uncontradicted oath of the wife herself, are all opposed to the presumption of law that the husband of the mother is the father of the child. I need not enter into the details of the evidence which has satisfied me that the husband and wife had no intercourse at or about the time when a child, born on 9th May

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