Scottish Court of Session Decisions

Jessie Cook, Echt, pursuer, brought an action of affiliation in the Sheriff Court of Aberdeen against John Crane junior, Dunecht, defender, in respect of an illegitimate male child of which she alleged the defender was the father.

After the proof had been closed on 20th June 1921 the pursuer lodged a “minute of res noviter,” in which she averred—“The pursuer respectfully states to the Court that since the proof in this case was led on 20th June 1921 she has received information of, and avers and offers to prove, the following facts:—First, that William Lauderdale Cooper, engine driver, Walkendale, Dunecht, witnessed an act of carnal connection between the parties in a wood within the policies of Dunecht House in the end of March or beginning of April 1920, and that the said William Lauderdale Cooper on several occasions both before and after the said act of connection saw the pursuer and defender walking together on the paths and in the woods around Dunecht House, the defender having his arm round the pursuer's waist. The said William Lauderdale Cooper did not reveal the foregoing facts to anyone until he heard on the day following the said diet of proof that defender had denied on oath having carnal intercourse with pursuer, when the said William Lauderdale Cooper disclosed said facts to pursuer's sister. Second, that James Meldrum, farm servant, Damseat, Dunecht, a companion of the defender, during the months of February, March, and April 1920 saw pursuer and defender walking together and also sitting together about the woods and buildings within the policies of Dunecht House, and that on an occasion in the summer of 1920, on the public road opposite Leslie, the merchant's shop in Waterton village, the defender admitted to the said James Meldrum that he had been having carnal intercourse with the pursuer, and that on another occasion after pursuer returned from England, and about a week before the child in question was born, the defender again admitted to the said James Meldrum in the course of a conversation between them with regard to pursuer's approaching confinement that he could not deny having carnal dealings with pursuer, but thought he might get clear of it because the last occasion they were in company together pursuer had her monthly illness. The said James Meldrum did not reveal the foregoing facts to anyone until 24th June 1921, when in answer to a challenge by pursuer's sister he disclosed same to her. Third, that in the spring of 1920 while pursuer and defender were keeping company together, the defender in the course of a conversation with Leslie Duthie, postman, Waterton, Dunecht, in regard to one of the female servants at Dunecht House other than pursuer, expressed surprise that her sweetheart had kept company with her so long without there having been misconduct between them, and stated that he (defender) was all right in that respect with Jessie (meaning pursuer). The words used by defender were intended by defender, and understood by the said Leslie Duthie, to mean that defender was having sexual intercourse with pursuer. The said Leslie Duthie did not reveal the foregoing facts to anyone until 22nd June 1921, and did so only on being questioned on the subject. Pursuer was not aware of and had no means of ascertaining said facts before the said diet of proof, and she respectively craves the Court to open up the record to the effect of adding said averments to her condescendence. She further craves the Court to allow her a proof of said new averments.”

On 28th July 1921 the Sheriff-Substitute ( Laing) refused the crave of the minute and granted absolvitor.

The pursuer appealed to the Sheriff ( M'clure), who on 21st December 1921 pronounced this interlocutor—“Allows the defender within ten days from this date to lodge in process his answers thereto as argued at this diet, and on said answers being lodged allows the proof craved to be led by the pursuer, and to the defender a proof of his averments in said answers: Remits to the Sheriff-Substitute to take the proof, and to report same to the Sheriff for further procedure.”

Note.—“The averments contained in the minute show a plain case of res noviter supporting the evidence already given by the witness Drumsfield, and I think a miscarriage of justice might result if an opportunity of proving them were denied. The evidence, however, must be strictly limited to the matters set forth in the minute and answers.”

The defender thereafter lodged answers, in which he averred—“The defender denies the material averments of fact contained in the pursuer's minute, and explains and avers that the evidence proposed to be led has been extorted improperly by the pursuer's sister Jean Cook, who after the proof

Page: 467↓

before the Sheriff-Substitute was closed, and being informed of the weakness of the evidence led for the pursuer, in order to endeavour to obtain corroboration of the pursuer's case, canvassed several persons for their evidence in pursuer's favour, including the parties whose evidence it is now proposed to obtain, and she also called on Hector Shepherd, Lyne of Skene, Dunecht, a brother of the defender's witness Shepherd, and asked him to say falsely that he had seen the parties having illicit intercourse, which he refused to do. Pursuer's witness Drumsfield also asked Shepherd to do so. The evidence proposed is not in the sense of the Act new matter or res noviter veniens ad notitiam, in respect that there are no new facts alleged, but at the best merely new or additional evidence which the pursuer by her own negligence failed to adduce at the proper time. The pursuer is bound to show that the proposed evidence could not with reasonable care and diligence have been available at the proof. Even if the evidence is true, it was quite available for the pursuer had she chosen to exert herself to prepare her case in order to enable her to lead the same at the diet appointed for the proof. In such circumstances the Court have invariably refused such evidence, and the defender respectfully refers to the authorities quoted by the Sheriff-Substitute, and likewise to the judgment of the First Division of the Court of Session pronounced on 22nd December 1921 in the case of Miller v. Mac Fisheries, Limited. The defender accordingly craves the Court to refuse the pursuer's minute craving to be allowed to lead the additional evidence proposed, and to pronounce judgment in the case on the evidence already led. Alternatively, in the event of the Sheriff granting the crave of the pursuer's minute, leave should be granted only on payment of expenses, and further the defender respectfully craves leave to appeal to the Court of Session.”

On 30th March 1922 the Sheriff having considered the cause along with the additional evidence, sustained the appeal.

The defender appealed to the Court of Session, and on the question of the competency of the additional proof argued—The Sheriff had erred in allowing the additional proof. Where such proof was of a nature that it could originally have been produced, and no valid reason was given why it had not been produced, then whether it consisted in new witnesses or the recal of previous witnesses it had been uniformly refused— Taylor v. Provan, 1864, 2 Macph. 1226; Drain & Company v. Scott, 1864, 3 Macph. 114; Brown v. Gordon, 1870, 8 Macph. 432, 7 S.L.R. 257; Mabon v. Cairns, 3 R. 47, 13 S.L.R. 23; Allan v. Stott, 1893, 20 R. 804, 30 S.L.R. 728. These were decisions under the Act of Sederunt of 10th July 1839, section 83, but the law had not been altered either by our Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. cap. 70) or by the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 27, as amended by the Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V, cap. 28), First Schedule. The same principle had been applied in the case of Miller v. Mac Fisheries, Limited, 1922 S.C. 157, 59 S.L.R. 182—a case under the Jury Trials (Scotland) Act 1815 (55 Geo. III, cap. 42), section 6.

Counsel for the respondent was not called on.