Scottish Court of Session Decisions

Elizabeth Byres was delivered of a natural child on the 7th February, 1833, and, in December following, raised an action for aliment of the child, before the Sheriff of Ayrshire, against James Shankland, whom she averred to be the father. Shankland having denied the paternity of the child, the sheriff-substitute allowed a proof. At the time the connexion was alleged to have taken place, the pursuer was a servant in the house of the defender's father at Aldinna, a few miles from Barr.

George M'Crone, who had been Byres’ fellow-servant there, deponed—“That one morning while the deponent was in his service, the defender called on the deponent about four o'clock, and the deponent went into the kitchen, and found the defender eating a piece at the side of the dresser, and the pursuer was standing at the side of her bed with her clothes on; and when the deponent went into the kitchen, the pursuer ran out of it; and at this time it was before Whitsunday, and ‘gloaming wise:’ That the family were not up, and no person was in the kitchen but themselves; That the defender and deponent slept in the same bed, in an apartment above the kitchen, and when the defender rose out of bed on the above morning, the deponent was asleep: That the deponent never missed the defender out of bed on other occasions, except when he was going to the smiddy, whither he was going that morning: That he does not recollect to have seen the defender rise so early as four o'clock, either when going to the smiddy, or any where else: That, after the deponent was called out of bed by the defender, he received some instructions from the defender about the farm, and then returned to his bed, leaving the defender in the kitchen; and the deponent fell asleep, and does not know when the pursuer came back to the kitchen: That, when the defender went away, he gave the deponent a cry, while he was half sleeping; but he does not know how long this was after the deponent had gone to bed; That no person slept with the pursuer in the kitchen at the above time, and the deponent was the only man-servant about the house: That the usual time for the pursuer to rise to her work was about six o'clock in the morning: That the deponent never saw the parties together by themselves in the kitchen in the morning, except on the above occasion: That the deponent never saw the parties by themselves in the out-houses. Depones, That, after the deponent left Aldinna, he went to be a servant with Mr Tennant of Creoch, near Ochiltree; and, after the parties were before the session, the deponent was at Cumnock Fair, when the defender mentioned to him that he was to appear the Sabbath following before the session at Barr, and wished the deponent to give him a letter that he knew nothing of his being the father of the child; and the deponent was taken before Archibald M'Cowan, messenger in Cumnock, and the defender told him what to write in the letter, which the deponent signed: That the letter was addressed to the minister of Barr, and was delivered to the defender: That M'Cowan charged 2s. 6d. for the letter, which the defender was to pay. Interrogated for the defender, depones, That the defender mentioned to the deponent that the kirk-officer of Barr told him, that he should get such a letter, and which would save the deponent the trouble of going to Barr: That, while the deponent was serving at Aldinna, he never saw any familiarities between the parties. Depones, That the pursuer was the only female servant in the house.”

Archibald M'Cowan, messenger-at-arms in Cumnock, deponed,”That, on the 31st of October, 1832, the defender called upon the deponent, and stated, that a woman, who had been servant about the house, had accused the defender of being with child to him: That the object of the defender calling was to get the deponent to write a letter for a man of the name of M'Crone (who had also been servant at Aldinna), to the kirk-session of Barr, as the defender had either been summoned, or was to be summoned, to the kirk-session: That the deponent accordingly wrote the letter, at the defender's desire, as he had mentioned that the minister of Barr had said, that a letter from M'Crone would save him the trouble of attending at the kirk-session: That the deponent wrote the letter from the instructions of the defender, and before he had seen M'Crone; but when he came into the office, the deponent read over the letter, and he, M'Crone, approved of it, and signed it: That after receiving instructions from the defender to write the letter, he, the defender, went away to seek M'Crone, to bring him to sign it: That the deponent addressed the letter to the minister of Barr, and the defender took it away with him: That the deponent charged the defender in his day-book for writing the above letter, which has not yet been paid, but he has no claim upon M'Crone,”

John M'Kinnon, kirk-officer in Barr, deponed, “That he remembers of the pursuer being before the session of Barr: That there was some conversation as to one M'Crone being a witness; and, as he lived at a distance, the deponent said, that a letter from him would probably satisfy the session, and the defender was very anxious to get the letter, and brought it to the session before he was desired.”

The letter from M'Crone referred to by the witnesses was as follows:—

“To the Rev. Mr Wallace, Barr. Sir,—In consequence of Elizabeth Byres having referred to me, when in the kirk-session of Barr, that I was a witness in her favour in the claim against James Shankland, I hereby declare that I never saw any improper familiarity between the parties, or in the private company of each other, nor did I ever understand them to be so; and, therefore, the woman need not refer to me to bear testimony in her favour. I may be allowed to mention, from my observation of the woman's conduct while I was servant at Aldinna, that James Shankland was at all times anxious to avoid her company. I am,” &c.

Upon this evidence the sheriff-substitute found Byres entitled to give her oath in supplement, and, upon an appeal, the sheriff adhered, adding the subjoined note. ^* Byres thereafter gave her oath in supplement, and deponed that Shankland was the father of her child. Shankland then brought an advocation, in which the Lord Ordinary pronounced this

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^* “In judging of this, as a case of semiplena probatio (the facts of intercourse and familiarity being no doubt slight), the sheriff cannot help laying a good deal of weight on the remote and solitary situation of the place, and there being no allegation or probability of the pursuer having any connexion with any other person.”