Scottish Court of Session Decisions

Subject_1Parent and Child
Subject_2Bastard
Subject_3Filiation
Subject_4Presumption — Admission by Defender of Intercourse with Pursuer. Headnote:

This was an action of filiation and aliment of a child born in November 1882. The pursuer and defender were fellow servants at a farm from Martinmas 1881 till the summer of 1882, and were the only servants on the farm. The pursuer alleged intercourse with the defender in January, February, and March 1882. The defender admitted intercourse with the pursuer on a single occasion in May 1882, being six months before the birth of the child. There was some evidence of familiarity between the parties in the spring of 1882, and also evidence of familiarity to which the witness who deponed to it could attach no date. The defender led evidence to show that the pursuer and the farmer in whose service the parties were, were on terms of improper intimacy in March 1882. The pursuer did not accuse the defender of the paternity till at least ten days after the birth, though she had an opportunity of seeing him.

The Sheriff-Substitute ( Birnie) assoilzied the defender. On appeal the Sheriff ( Clark) adhered.

The pursuer appealed, and argued that the admitted intercourse in May raised a presumption against the defender, which, taken with the opportunity at the date of conception, was as strong as the presumption arising from admitted intercourse prior to the date of conception, together with opportunity at that date—?‘ Donald v. Glass, 27th October 1883, ante, p. 45, and Milne v. Thomson, 24th October 1883, there cited. There was also strong evidence of familiarity, and the pursuer was entitled to complete the case by her oath.

The defender replied—No doubt the presumption from an admission of intercourse must be regarded as almost equally strong whether the admission applied to a term after or before the date of conception, provided there were opportunity at that date. It was still necessary, however, that the pursuer's should be an “unsuspicious deposition”—Lord Benholme in Boss v. Fraser, 13th May 1863, 1 Macph 783. In this case the pursuer's deposition was not reliable, and the case was therefore not proved.

The Court refused the appeal and affirmed the judgment of the Sheriff.