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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Glendinning v A. B. [1835] CA 13_270 (17 January 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0270.html Cite as: [1835] CA 13_270 |
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Page: 270↓
Subject_Proof—Semiplena Probatio—Parent and Child.—
Evidence which held to amount to semiplena probation in an action of filiation of a natural child, so as to admit of the mother's oath in supplement.
The pursuer, Janet Glendinning, having been delivered of a natural child, at Leith, on the 11th of February, 1830, raised an action in 1833 for aliment of it before the Sheriff of Edinburgh against the defender, whom she alleged to be the father. The pursuer, at the date of the birth of the child, was about 40 years of age, and she had previously had a natural child. The defender, on the other hand, was a lad of about 18, residing with his father in the burgh of Lanark. His father's house was partly on two floors, the second floor, on which were four rooms, having a separate entrance. Two of these rooms, both opening into the landing place, were let to Glendinning and a sister, in one of which, used as the sleeping apartment, she alleged that connexion had taken place between her and the defender at various times, particularly in May and June, 1829.
Being judicially examined, the defender admitted that he generally slept in one of the rooms retained by his father, on the same floor with those occupied by the pursuer; that, during the greater part of the year 1829, he had been in the habit of going into the pursuer's rooms; that occasionally in the evenings he was in the room where the pursuer slept, sometimes with others, and at times when she was alone; that he used to go there when he came home, after his own family had gone to bed,
The letter from the pursuer mentioned by the defender was afterwards transmitted by him, and was in these terms:—“Sir,—I'm very much sorprsed at your not calan on me before know.
“I wish to see you as shown as you receive this as I have got some word abowt you from lanark and be shur and come befor I wret to lanark and not have me to wret you agean I m stell in the same plece and houses as when I saw you I hope to see and you can call for me and call me Mis Andreson the popel call me that and I du not hinder them—I expect you.” (Signed) “J. G.”
In addition to the declaration of the defender, the pursuer adduced two witnesses, the surgeon who had delivered her, and his daughter. From their depositions, it appeared that, some months after the delivery, the surgeon, at the request of the pursuer, had called and left his address for the defender, who, in consequence, waited on him at Leith—that, on being asked why he did not give some money to assist in nursing the child, the defender denied that he had any thing to do with it, and that the attempt to father it upon him was an imposition; but that he immediately after enquired where the child was, and expressed a wish to see it, upon which the surgeon's daughter went to the house of the nurse, which was close at hand, and brought it to the defender, who looked at it, remarked that it was a fine child, but did not take it in his arms—that he then asked where the nurse lived, and went along with the surgeon's daughter, when taking back the child, to be shown the nurse's house—that, on the way, he asked the name of the child, and when they came to the foot of the stair where the nurse lived, being asked if he meant to go up and see her, he answered, “No, not just now;” while, in his declaration, with reference to his desire to ascertain where the child lived, he said, “I do not think I had any other object than curiosity.”
This evidence, the pursuer contended, amounted to a semiplena probatio, and she claimed to be allowed her oath in supplement. The Sheriff, however, found, “that the admission by the defender in his declaration, and the proof against him, do not amount to a semiplena probatio,” and, therefore, assoilzied him, whereupon the pursuer brought an advocation, in which Lord M‘Kenzie, Ordinary, advocated the cause, and found “that the evidence in this cause does amount to a semiplena probatio, that the defender is the father of the pursuer's child,” and his Lordship, at the same time, added the subjoined note. *
_________________ Footnote _________________
* “If this were an action for seduction, the Lord Ordinary would think very differently of the proof; but the question regards only the aliment of the child, and the expenses of its birth. It appears, then, that the mother was living and Sleeping in a flat in which the defender was also living and sleeping; and they were frequently the only persons in that flat at night, no other persons being in a situation to form any check upon them. The woman is and was known not to be of chaste character, for the defender tells that she had a bastard before, and he knew it. The defender was a youth of 18. They were on terms of more intimacy than delicacy, for the defender admits that they talked about the pursuer being with child some time before this one was begotten, though she was not really with child then. Then this youth is not only with her in the solitude of the flat, but he is frequently in her bedchamber, both late at night, after his own family are in bed, and early in the morning. He said he was there only for a light or a glass of water, but there is no proof of that qualification of his visits. He admits that he even knocked at her door, and made her open it after she was in bed, but says that he did so only to get a light or glass of water, which he got accordingly by her opening the door for that purpose only; but he does not say she was not in the dress she slept in when she opened the door, nor is there any evidence of the harmless results of those interviews. Then, while these things are going on, the pursuer is got with child, and there is no evidence that any other man had suspicious access to the mother. Then, the defender goes away to Edinburgh, and the pursuer goes to Leith. It is said she formed a plot. But, at that time, the defender seems to have been poor, and he told Mr Cochrane that she knew he could give her nothing; and, in fact, she does not raise action against him for a long time, and which does not look like a plot. The familiarity of the parties, however, does not cease, though the defender enters a department of life which places him in a different rank. She writes him a letter, which he destroys, alleging, however, an apology (in itself not absurd), but not proved. But she sends for him, and he visits her over and over, when he admits he knew she was in concealment on account of her pregnancy, and living under a false name. One of these visits was in consequence of a letter produced, which is a kind of summons, that seems strongly to infer that the parties had business together, and she a right to call on him. Then, after he admits that she laid her child to him, he goes to wait on Mr Cochrane, evidently about this matter. He does not, indeed, admit the paternity, or give her any money, but withal speaks of her knowing he had not the ability; and he sends for the child that he might see it, and goes along with it to its nurse's house, asking its name by the way, which he explains only by saying it was from mere curiosity. The Lord Ordinary cannot help thinking, if he was conscious of being under a false accusation about this child, he would have no inclination to be curious about it. Then, again, there is no evidence that any other man was called upon by the pursuer as the father, or acted in a manner affording the least suspicion that he was this child's father. In these circumstances, the Lord Ordinary thinks the probability that this defender, and no other, was the father, sufficient to warrant the oath in supplement. But he does not wish to give more than the ordinary allowance for the child, because any surplus would probably go into the pocket of the pursuer herself, which the Lord Ordinary does not think proper.”
The defender having reclaimed, the Court, of consent, recalled the Lord Ordinary's interlocutor in hoc statu, and remitted to allow a further proof. The additional proof, led by the pursuer, consisted mainly of two persons, who had lodged with the pursuer while she had the rooms belonging to the defender's father. The one was a young woman, who had lodged with the pursuer during the month of April, and part of the month
On advising the case with this additional proof, Lord Moncreiff, before whom it had now come to depend, on Lord M'Kenzie's removal to the Inner House, found, “that the evidence in process does not amount to semiplena probatio, so as to entitle the advocator to give her oath in supplement,” and remitted simpliciter to the Sheriff, adding the subjoined note. *
_________________ Footnote _________________
* “As the Lord Ordinary differs from the views of this case taken by Lord Mackenzie, he would, from respect to that opinion, have reported it, but for the serious expense which that would lay on the parties. He therefore thinks it his duty to give his own judgment, and to state his views fully.
“The doctrine of semiplena probatio, as sufficient in certain known cases to admit of an oath of party in supplement, though perhaps deeply founded in the principles of human nature, and in strong expediency, is in itself so very vague and undefined, that it must always give rise to much doubt in particular cases, where they run near on the confines of proof and no proof. The assumption in every such case is, that the material fact is not so proved that a verdict or judgment, as on a thing proved, could be given; and the difficulty is to say, what shall be taken as a sufficient half proof agreed by the law, on considerations of necessity and expediency, to be taken as effectual for admitting the oath of the one party to complete the evidence, instead of leaving it, as in other cases, to the party making the claim to prove an unproved case by the oath of the adversary.
“For clearing so arbitrary a question, something like a rule is given in the opinion of the Lord President (Blair), in the case of Craig v. Creighton, June 14, 1809, ‘That a semiplena probatio does not mean merely a suspicion: That suspicion depends merely on the turn of mind of the person who suspects, some persons suspecting merely where there is possibility; but that a semiplena probatio must amount to such evidence as induces a reasonable belief, though not complete evidence.’ The Lord Ordinary thinks this just and reasonable. Mere suspicion depends on the imagination, and habits, and ways of thinking of the individual who is to judge; and on the other hand, some persons are so hard of belief, that nothing but direct evidence of the fact will satisfy them. The difficulty is to draw the line in a question as to insufficient proof.
“When the Lord Ordinary first read the proof in this case, and even during the debate, his impression was very strong that it was a case of reasonable proof, to be left to the oath of the pursuer. But a very careful consideration of the evidence has brought him to a different result. He thinks that there is really no proof of the essential point, when due regard is paid to all the circumstances which attend the inconclusive facts relied on.
“He must observe, in the first place, that the testimony of the new witness, Mrs Nimmo (whose testimony was objected to as that of a near relation of the pursuer, but has since been admitted), appears to the Lord Ordinary to give no aid at all to the pursuer's case, but rather to make against it. For, with reference to the only point in her evidence relied on, it is to be observed, that the pursuer, in the record, makes no averment of any sexual connexion between her and the defender, except a connexion said to have taken place at various times, particularly in May and June 1829, ‘in said sleeping apartment occupied by the petitioner.’—(See Record, Art. 6. p. 16.) The supposition, therefore, of any connexion of this kind, in a different place in the beginning of June (too late, by the way, for the birth of the child, on the 11th February), is not within the condescendence, and cannot be credited, on any doubtful surmise, against the pursuer's own statement. Though the ground of inference were stronger than it is, it could only be material as a reason for presuming something previous. But not being averred at all, but, on the contrary, excluded by the form of the averment, the evidence cannot be taken from the pursuer as even admitting of such an inference, seeing that she must know the truth, and has not averred any such fact. And then the effect of Mrs Nimmo's evidence is, that she slept constantly in the same room with the pursuer from the 16th May downwards,—was there every night at or before ten o'clock,—saw the defender often there,—never saw any improper familiarity,—never suspected any thing,—and was in the room all the time on the only occasion when the defender was there late at night while the pursuer was in bed. Indeed, her whole statement, of what occurred on that occasion, militates very strongly against the probability of any criminality being involved in the defender's visits to the pursuer's room. As to the time, therefore, posterior to the 16th May, the pursuer seems, by this witness, and her own averment, to have actually provided a watch, which almost excludes the suspicion of the defender having intercourse with her after that date. Possibilities are left, but no more.
“If the intercourse alleged took place, the Lord Ordinary believes that it must have been before the 16th May, and during the time when the witness Swan lived in the house, who says the was there in April and the beginning of May. Here, again, the witness constantly slept with the pursuer. Great intimacy with the defender is proved: But that is very equivocal, and in one view tends to remove grounds of suspicion which would otherwise be strong. The question is, whether, regarding the condition of the parties, there is any proof of improper intimacy.
“In the case of Craig, and in the very late case of Martin, May 17, 1834, it was observed, that all the circumstances must be considered, and that the character and situation of the person accused must be taken into account. So all circumstances must be considered here. The defender was a lad of seventeen;—the pursuer a woman of forty, who had had a child before. She might be very likely to seduce the young man; but fully as likely to have other connexions which she might wish to suppress. On the other hand, it is surely not very improbable that the defender, meaning nothing, and suspecting nothing, should never think of the situations in which he might be placed with her. Where such habits, in the presence of others, are proved, without indecent familiarity, nothing can be inferred from mere opportunities, which are in consistency with such habits.
“In short, it appears to the Lord Ordinary, that, on the facts which occurred at Lanark, so far as they appear, it is no case,—and certainly nothing approaching to the case of Martin, last referred to.
“The facts proved to have occurred in Edinburgh and Leith are, at first sight, calculated to make a strong impression. They did not, however, satisfy the Court formerly; and they have received little additional strength; and, on fair consideration, the very proof of close intimacy, for years before, which the pursuer has brought, with a due regard to the relative ages and circumstances of the parties, goes very far to explain these matters. That the defender should have visited the pursuer in such circumstances—staid with her alone for an hour at a time, and afterwards taken some interest about the child, may, abstractly, and without explanation, appear very strange; but many such appearances may exist where the conclusion would be quite fallacious. The Lord Ordinary has known such cases; and in this instance the fact on all the evidence is, that the defender denied, from the first and to the last, that he had any concern with the child, or that there was any ground for charging him as the father. There is nothing here half so strong as the fact proved in the case of Martin.
“In such cases the conduct of the woman is always of importance. But the conduct of the pursuer gives little probability to her accusation. According to the defender's declaration, on which she founds, she did not at all impute the paternity to him at first, but when he asked who was the father, said he had nothing to do with that; the destruction of the first letter is unfortunate. But it was before the birth of the child. The o her letter again admits of different meanings. Then it was not till many months after her delivery that she instructed Dr Cochrane to enquire after the defender. He was not consulted about the baptism of the child, nor its nursing, &c. There could be no difficulty in finding him when he was always to be heard of at Miss M'Donald's; and as soon as Dr Cochrane left his address, the defender communicated with him. He entirely denied the charge when made; but it is perhaps not very wonderful that so young a lad, when urged to give money to the pursuer, under a knowledge of the equivocal circumstances into which she had drawn him, should say that he had no money to give, or that he should desire to see that there was a child, and where it was? But the end is, that from that time (October, 1830), the date of the first known accusation, which was eight months after the birth of the child, the pursuer took no step till the date of the petition to the Sheriff on the 3d April, 1833. These things give little strength to the pursuer's case, but make much against it.
“What may be the reality, the Lord Ordinary cannot tell. The pursuer clearly wished to conceal every thing from her friends at Lanark, and that may account for the mystery about the father of the child. She has herself to blame for much of this mystery. The Lord Ordinary only thinks that the evidence, as it stands, is not such as to induce a reasonable belief that the defender is the father of the child. He may be wrong in this impression; but cannot help it. There is, however, yet a plain alternative: The pursuer does not say that she has proved her case. She wishes to prove it by her own oath. The Lord Ordinary thinks that this cannot be admitted. But the oath of the defender is open. All pertinent questions may be asked before the general question; and the result is, that there being no proof otherwise, the defender's oath, and not the pursuer's, must be taken. The Lord Ordinary is of opinion, that in such circumstances there is less danger in the one than in the other.”
The pursuer reclaimed.
The Court accordingly altered and remitted, to allow the pursuer's oath in supplement.
Solicitors: M'Kenzie and M'Farlane, W. S.— John Dymock, W. S.—Agents.
