Scottish Court of Session Decisions

Lord Justice-Clerk—In this case, supposing that general medical evidence had been led to show the possibility of protracted gestation, nevertheless the improbability would have remained—an improbability so great as to be nearly the same as an impossibility, and one, I think, quite sufficient to warrant the judgment of the Sheriff. The position of matters might have been very much altered had there been evidence led to shew a hereditary tendency, for instance, to prolonged labour or protracted gestation. Had there even been a direct assertion of singular appearances in any way at the time of delivery I might have been disposed to allow further inquiry; but there is not any such assertion, and accordingly I am for adhering to the interlocutor appealed against.

Lord Neaves—I entirely concur. The Court cannot allow a roving diligence to parties to examine medical men in such a way as is here suggested, and to implement such evidence. Moreover the Court cannot listen to books by medical authorities on such a subject, and receive as authorities cases cited by men who are not sitting as judges, and of course do not, or do not require to, sift the evidence in relation to the instances of such protracted gestations as they mention.

Lord Ormidale concurred.

Lord Gifford—I agree. The fact to be reached by the Court in such inquiries is that the man was the father of the child. That in every case can be only a fact reached by inference. Now the time, if the fact were so, would be here 311 days, ex facie an improbably long period of gestation. I do not deny that abnormal cases may occur, but the mere possibility of such cases is not enough to raise any presumption. Evidence to shew an unusual labour or gestation or hereditary tendency to this might have justified a further inquiry, but there is nothing of the kind here.