Scottish Court of Session Decisions

On the whole, as has already been said, the Sheriff has found the case one far from being free of difficulty, but, on the whole, the evidence does not fully support the pursuer's case of the child born in November 1882.”

On appeal the Sheriff ( Macdonald) adhered.

The pursuer appealed, and argued—In a case of filiation and aliment decided in the Second Division October 24, 1883, but unreported ( Milne v. Thomson), the defender, while admitting connection four months before the birth of the child, adduced a witness who admitted connection nine months previous to birth; the Court notwithstanding gave decree for the pursuer. In the present case the defence was much weaker; the defender admitted connection though within four months of the birth of the child. He had had the same opportunity of it both before and after the date of conception, and the admission, coupled with the oath of the pursuer, were sufficient to prove the case.

Argued for the defender—The pursuer had failed to prove her case. The admission of the defender of intercourse at a time which could not have been that at which the child was begotten was in his favour. It was not an admission extorted in examination by the pursuer, but one voluntarily made, though he was not bound to make it. The case was one such as was pointed out by Lord Neaves in Ross v. Fraser, May 13, 1863, 1 Macph. 783, where a pursuer, after she knew herself to be pregnant, desired for reasons of her own to establish terms of intimacy with a man in the defender's position whom it would seem easy and natural to charge with the paternity.

At advising—

Lord Justice-Clerk—I have no doubt whatever about this case. The Sheriff-Substitute calls attention to the fact, and it is not immaterial, that the admission on which so much is founded was not on record. The defender denies there entirely any connection with the pursuer, and there is no qualification of it. When examined he not only admits the connection, but founds on a long conversation as to the period when the connection took place.

Now, where a man admits connection, even though it is during the period of pregnancy, and when he has had the same opportunity of connection before as after it, that, coupled with the evidence of the girl, may be sufficient to lead the Court to a conclusion of the paternity adverse to the defender. What Lord Neaves said in the case of Ross is not applicable in circumstances other than those which he suggests in the passage from his judgment which was referred to. The circumstances he there supposes do not exist here. Here the defender never set up that defence when first charged, and the conversation between him and the mother is entirely inconsistent with that view. It is true the mother may be speaking falsely, but it is difficult to believe she could have forgotten what had been said so recently.

On the whole, I am satisfied on the proof that the Sheriffs’ judgments are wrong.

Lord Young—I am of the same opinion, and so clearly that I should not feel it necessary to add a single word were it not that we are altering the judgments of the Sheriffs; but I agree that the evidence here does not in any reasonable view support the conclusions at which they have arrived. The pursuer gives distinct evidence that the defender and none other had had connection with her, and that he was the father of her child. That statement is now admitted to evidence by the law of Scotland, and we consider what it is worth according to the credit which we give to the witnesses. She was a servant in the defender's father's house, and only seventeen years of age when he paid his addresses to her, and she felt with child and gave birth to it in November 1882. Now, what is the defence? He says that he did take up with her, but he confines it to this, that a month or so before she told him, in August, that she was with child, he had had connection with her. Now, credit is taken, and perhaps reasonably, for his being a truthful witness in admitting what could not otherwise be proved; this, however, is not evident to me. But the Sheriff-Substitute says in his note—“It is not unusual for a defender in this class of cases, probably because of some mental operation of casuistry or force of conscience, to admit sexual connection, but guardedly to place it anterior or posterior to the time of conception so as to avoid the consequences of paternity.” However, we next take it as proved that he had had intercourse with her in his father's house, and though he says it was in July she says it was in February. Which are we to believe? I am inclined to believe the girl. Again, the Sheriff-Substitute further on in his note says—“There is an obvious distinction between an admission of conception anterior and one posterior to the time of conception. Where there was the same opportunity of continued intercourse subsequent to the date of the admitted connection it is very difficult to get rid of the presumption of renewed connection corresponding to the date of conception. But where the admission of connection is posterior to the date of conception of the child born subsequently, there must be very clear proof that at the time of conception of the child there was such intimacy that could have fixed the paternity on the defender independent of the admission of connection.” Now, I take the liberty of saying that there may be such a distinction, but it is not always necessarily so. Where you have connection anterior to the date of conception admitted or proved, it is so likely to have been continued, that if the woman swears to it, and the child is born at a period conform to it, it disposes me to believe her story. But that is all that can be said. But where you have connection posterior to it, it may have exactly the same effect, for if it is not likely that the anterior connection was the end of

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