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The pursuer was, upon the 7th February 1833, delivered of a natural child. She raised an action before the Sheriff of Ayr against the defender, as the alleged father.
Janet Wilson lived on the road side, between Barr and Balloch, and near the village of Barr;—knew the pursuer had a child, after which she saw her attending the kirk-session in Barr. Some time before the child was born, and while the pursuer was in Aldinna, she saw the pursuer coming with the defender in a cart; and before they came as far as the deponent's house, they stopped the cart, and the pursuer walked on the road to Barr before the defender.
The Sheriff-substitute found the proof sufficient to entitle the pursuer to depone in supplement; and the Sheriff adhered, adding this note: ‘In judging of this case 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 had connection with any other person.’ The pursuer thereafter deponed, in supplement, that ‘the defender is really and truly the father of the child.’
The defender then advocated , and the Lord Ordinary pronounced this interlocutor: ‘The Lord Ordinary having resumed consideration of the debate, with the closed record, proof adduced, and whole process, advocates the cause, alters the interlocutors of the Sheriff complained of; finds the respondent (original pursuer) has not proved such facts and circumstances as can be held to amount to a semiplena probatio, or to entitle her to her oath in supplement; and therefore assoilzies the advocator from the conclusions of the action, and decerns.’
‘It is, no doubt, disagreeable to alter a judgment of this kind, after the oath has been actually taken; but this was not regarded in the case of Durham v. Guthrie, 19th May 1827, (5. Shaw. 685); and if the oath was improperly taken, its import cannot be looked at.’
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Common Room
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