M'Naughton v Glass

Ld. Cockburn , Lord Gillies , Lord Mackenzie , Lord President , Lord Corehouse .

Glass now pleaded that the oath was not in supplement of the semiplena probatio, but, on the contrary, was destructive of the chief part of it; that, if the fact had previously been stated on the record, as it should have been, that there was no carnal connexion before 1834, there was nothing in the evidence to amount to a semiplena probatio; and, therefore, although the oath contained a positive statement that he was the father of the child, yet, as that oath was not supported by a semiplena probatio aliunde, the proof of paternity was incomplete, and he should be assoilzied.

The Lord Ordinary “having heard the counsel for the parties on the pursuer's deposition and the whole case, found it proved that the defender is the father of the pursuer's child; therefore advocated the cause, sustained the reasons of advocation, repelled the defences, and decerned in terms of the libel; and found the pursuer entitled to expenses both in the inferior court and in the Court of Session.” *

Lord Mackenzie .—I feel a good deal of difficulty in this case, but I incline to be of the same opinion. We formerly held, on considering the record and the evidence adduced, that there was a semiplena probatio. And if those statements on the record, and that relative evidence, had remained uninjured by the oath in _________________ Footnote _________________

“But though these be the Lord Ordinary's own views, the two first of them rest on his notion of the import of the former evidence, which it is now fixed was wrong; and it is decided that the evidence formerly adduced, amounted to a semiplena probatio. Taking this as its result, or in other words, giving effect to the feeling of the Court upon the proof, the deposition, which is express upon the main fact, makes out the pursuer's case.”