Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PROOF.

Jean Stewart
v.
Samuel M'Kean

1774.

Click here to view a pdf copy of this documet : PDF Copy

Jean Stewart brought an action, before the Sheriff of Wigton, against Samuel M'Kean, for aliment of a bastard child, of which she was delivered, 3d January 1772. The defender denied that he was the father of the child; and the pursuer having referred to his oath, if he had not had criminal correspondence with her within twelve months prior to the birth of the child; and he having deponed that he had had such correspondence 11 calendar months preceding 3d January 1772, but no later, the Sheriff assoilyied, and decerned.

Winter Session 1774, in an advocation, the Lords advocated the cause, and assoilyied.

It seemed dangerous to extend the period of incubation of children, above that fixed by the law, in the question of legitimacy, where ten months is reckoned the highest; for though perhaps instances may be found, as was alleged in this case, where women have gone eleven months instead of nine, or ten, yet such instances, if such there be, are not to be made a rule. But Lord Covington observed, that he doubted if the periods fixed by law held as to bastard children, confessedly allowed to be such, but that they were fixed in favorem matrimonii. However, the Lords determined as above, and did not seem to regard this distinction.