Scottish Court of Session Decisions

The Sheriff-Substitute by his note shows that he proceeded in rather a curious way in pronouncing decree in favour of the pursuer. He says—“The pursuer's story is a consistent one, and she is not contradicted by any neutral witness.” That is equivalent to saying that unless the defender can disprove the story of the pursuer she must be believed. That is not the way to look at the matter at all. The pursuer's evidence is not enough unless it is corroborated as in any other case.

I think the judgment of the Sheriff-Substitute should be recalled.

Lord Young—I cannot find fault with the view of the Sheriff-Substitute, or with anything he has said in support of it. The facts are known with absolute certainty to the parties themselves. If the woman has told the truth, the defender has perjured himself; and if the man has told the truth, the pursuer has perjured herself, and has charged the wrong man. The pursuer is perfectly distinct in her evidence, and I do not sympathise with your Lordship's remarks upon the Sheriff-Substitute's observations as to her consistency and as to there being no evidence contradicting her story. Such observations are no doubt commonplace, and may hardly be worth making, but they are almost invariably made in these cases. The real question is always whether there is anything to support the pursuer's evidence. If it is clear, consistent, and not contradicted, and if the Sheriff believes it, very little in the way of corroboration will do. It must be very little, unless the parties are detected in doing what they would seek to conceal. Where eyewitnesses of the act have been brought forward, it is generally suggested that they have perjured themselves. Now, are we to say that no case can succeed, however clear and consistent the statement of the woman, unless discreditable familiarities are proved, or at least familiarities whether discreditable or not. An important element is whether the parties have been keeping company, which can only be proved by the general evidence of people who saw them. Here we have the evidence of an uncle (M'Quilkan), who it is not suggested has sought unduly to help the pursuer, and he says they were carrying on together. The man denies all that. That the man has lied does not prove the case, but if he tells a falsehood with regard to circumstances relative to the case, that is a circumstance to be taken into account entitling you to act upon the woman's testimony if you believe it.

As regards the letter, your Lordship seemed to suggest that it was consistent with no undue acquaintance between the writer and the pursuer. I should not have thought it would have occurred to anyone that that was the letter of an innocent man. Would an innocent man who had never been unduly familiar with the pursuer, write—“Dear Jessie,—… If you are with child it is certainly not by me Were I not absolutely certain of it, I would not say that, but I have said it conscientiously, and will stick to it to the bitter end?” I am not saying that that is an admission, such as we should regard as an admission if in an answer to an article in a condescendence, but it does produce in my mind the impression that it was not written by an innocent man, and it does lead me to believe the woman rather than the man who writes thus to a woman who is trumping up a case against him.

I think the Sheriff-Substitute is right, but further, I think that if there is reasonable evidence in support of his view, which there is, his judgment should not be disturbed.

Lord Rutherfurd Clark—The conclusion I have arrived at is that the case for the pursuer has not been proved.

Lord Trayner—I agree in thinking that the pursuer has entirely failed to prove her case; there is no evidence in support of it but her own. The evidence of her grand-uncle does not, in my opinion, afford the slightest corroboration of the pursuer's statement. He speaks to a circumstance which he says excited his suspicion as to the relations existing between the pursuer and defender, but that circumstance occurred three or four years before the child in question was born, and cannot therefore have, in my opinion, any bearing upon the question before us. Besides, this witness's suspicions are not evidence of fact.

I think the Sheriff-Substitute has reached the conclusion given effect to in his judgment upon an erroneous idea of the law applicable to cases like the present. Your Lordship in the chair has already referred to the passage in the Sheriff-Substitute's note where he says—“The pursuer's story is a consistent one, and she is not contradicted by any neutral witness.” Upon that I observe that the pursuer's story, consistent and uncontradicted as it may be, is still the pursuer's story, and nothing more. It is not sufficient to prove the pursuer's case unless it be corroborated. The absence of contradiction does not afford corroboration. But what I more especially allude to is the sentence which follows what I have just quoted. The Sheriff-Substitute adds—“Unless the witnesses named are to be disbelieved, her case is raised by their testimony to a height of probability which with her own evidence satisfies, I think, the rule applied to such cases.” The rule to which the Sheriff-Substitute refers is, I suppose, the old rule which allowed the pursuer of an action of filiation who had adduced a semiplena probatio, to supplement that evidence by her own oath, and thereupon to obtain decree. A semiplena probatio was just such a proof as the Sheriff-Substitute describes, namely, such an amount of evidence as created a strong probability that the pursuer's

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