Scottish Court of Session Decisions

Lord President.—I think the interlocutor right. The pursuer not only deliberately but judicially ascribed her child to another man. She did this repeat-edly; for I think the declarations made before the kirk-sessions must be viewed as solemn judicial declarations. Had it not been for these declarations, I should have had no hesitation in allowing to the pursuer her proof in supplement, as there is a semi-plena probatio completely made out. But after she has established the semi-plena probatio, her case must still fail unless she is in a condition to give her oath in supplement. And after she has twice judicially declared William Gill to be the father of her child, how can she make oath that Morice is the father of it? And if she be ready to make such oath, I am not prepared to hold that the Court should allow it to be taken, as a competent means of completing an imperfect proof against Morice.

Lord Gillies, after stating the grounds on which he had no doubt that a semi-plena probatio was clearly made out, proceeded to observe—I still, however, feel great difficulty in disposing of this case, and can scarcely say that I am prepared to alter the interlocutor under review. The advocator deliberately, and repeatedly, at intervals, accused another man of being the father, and adhered to her accusation. And as the remaining proof, which she now tenders in this cause, is her own oath, of a tenor directly opposed to these deliberate declarations, I have great difficulty in getting over them, and holding that she is still in condition to complete an imperfect proof by that oath. But, on the whole, I rather incline to think she is not excluded from giving her oath, and, when given, the Court will judge of the effect of it.

Lord Mackenzie.—I am of the same opinion with that expressed by Lord Gillies. There is a complete semi-plena probatio, but the difficulty is whether the other half of the proof, the woman's oath, is not disabled? She has made repeated and deliberate declarations that another man is the father of her child, and it does seem a little doubtful whether her oath, ascribing the paternity to Morice, should now be allowed to complete her proof. I think, however, that this is not the first time when such an objection has occurred, and been repelled. I believe there are various cases in which, although the woman had ascribed her child at one time to a different father, she was, nevertheless, allowed to give her oath in supplement. A full and explicit oath may of course be required from her. But if she emits that, I am not prepared to say that the Court could then fail to hold the proof of the libel to be complete. At the same time 1 feel great doubt on the subject.

Lord Corehouse.—I think the case is attended with difficulty. There is a complete semi-plena probatio, and the question is whether the advocator is disqualified from giving her oath in supplement, by the opposite declarations which she emitted before the two kirk-sessions. But I do not think that she is thereby cut off from giving her oath in supplement of the proof in this action, and so completing her proof. She has not committed perjury, and I apprehend the Court are not now warranted in absolutely rejecting her oath as inadmissible. When emitting that oath, she is liable to full cross-examination, and the truth may be thereby elicited. I, therefore, think we should allow the oath to be taken, reserving to judge of the effect of it, as completing the proof, after it shall have been reported to the Court

Lord Gillies and Lord Corehouse also intimated that they were not without the suspicion, that Morice had instigated Greig to charge Gill with being the father of the child.