No. 42. he chose. The common law interposes to protect the witness, not to give an advantage to the defender, and I apprehend that this statute, like the common law, was intended only for the protection of witnesses. They are protected from examination on this subject of adultery, and therefore if a question is likely to

Dec. 9, 1875.
Kirkwood v.
Kirkwood.

was done by dd elicit an answer criminating the witness, it is the duty of the Judge to explain

to the witness that he is so protected, and is under no obligation or liability to answer such questions when addressed to him. I would go farther where the party named on record as the paramour is called, I think it is the duty of the Judge to make him aware of his protection when he is put in the box. It may, of course, escape observation when the witness is called that he is in that position. But if not, the Judge should explain the nature of the protection, but not force it on the witness. The defender has no privilege entitling him to insist that the witness shall avail himself of the enactment, which was not made in the interest of anybody but the witness, and if he says that he desires to tell the whole truth, there is nothing in either the common or statute law to prevent him. Therefore I think the objection taken by the defender was not the proper form in which to raise the point. He had a right to call the attention of the Judge to the matter. But the protection of the witness is not the business of the defender but of the Judge, and it is not his duty to protect the witness against his own will. It is clear that Brown came with his mind made up to tell the whole story.

Therefore, I am not inclined on any of these grounds to reject the evidence, or to say that the objection should have been sustained.

LORD DEAS.-I concur. I think, however, that it was not incompetent to raise the point in the form of an objection.

LORD ARDMILLAN and LORD MURE Concurred.

C. S. TAYLOR, S.S.C.-JOHN LATTA, S.S.C.-Agents.

ISABELLA DUNN, Pursuer.-J. P. B. Robertson.
JOHN CHALMERS, Defender.-Mackintosh.

Proof-Parent and Child-Filiation.-In an action of filiation brought by the daughter of a small farmer against a wright who lived near her father's house, it was proved that, for some time prior to 29th October 1873, the alleged date of conception (at which time the pursuer and defender were aged respectively eighteen and sixteen years), the parties were considered sweethearts, but that no familiarities had been observed between them. That after a raffle meeting on that day at the pursuer's father's house the parties had been left alone together in the kitchen for half an hour about midnight. The pursuer deponed that connection between them then took place, and that in consequence she bore the child 8 months after. The defender stated in regard to his acquaintance with the pursuer that he had just spoken to her, and deponed that on the occasion in question they merely talked together, and that he had never had connection with her. Held that the paternity had been proved.

IN March 1875 Isabella Dunn, residing at Invernorth, in the parish of Rathen, raised an action in the Sheriff Court of Aberdeenshire, at Peterhead, against John Chalmers, wright, residing at Invernorth, for aliment for an illegitimate child of the pursuer born on 17th July 1874, of which the defender was alleged to be the father, in consequence of his having had connection with the pursuer " in or about the month of October 1873."

The defender denied the libel, and a proof was led. The whole proof is No. 43. given below.*

Dec. 10, 1875.
Dunn v.

The Sheriff-substitute (Comrie Thomson) assoilzied the defender. appeal the Sheriff (Guthrie Smith) recalled the Sheriff-substitute's Chalmers.

* Pursuer's Proof. JOHN CHALMERS, defender (eighteen).-In August last I lived about five minutes' walk from pursuer. I came there about two years ago. I have just spoken to her. In October 1873 I was at a harvest-home at pursuer's father's. Alexander Davidson, and Jane Greig, pursuer, and I remained in the barn after the others had left. I sat beside pursuer; Greig and Davidson were apart from us. We were sitting together for about half an hour, but we were doing nothing except talking. I was at a raffle at pursuer's father's, but I cannot say when that was, except that it was after the harvest-home. I saw Lewis Grant there. He was about the last to leave, and he left pursuer and me in the kitchen together. We were alone there for about half an hour. We did nothing but talk. I was at pursuer's father's on sowens night-old Christmas day. I was also at her sister's marriage. It was about that time. Pursuer was there. Davidson, and Jane Greig, pursuer, and I went to Greig's house. I was in company with pursuer. I do not remember being in the barn at Greig's that night. Pursuer told me she was with child to me, but I cannot say when. I denied that I was the fathe father. I did not say to her to go to some one else, nor did I tell her to go to a doctor and get quit of the child.

"ISABELLA DUNN, pursuer (twenty).-Chalmers works near my father's. He has been a sweetheart of mine. At a harvest-home in 1873 he was in our barn with me. He had no connection with me that night. On 29th October there was a raffle at our place, and defender was there. He remained after the X others had left, and he had connection with me in the kitchen. I slept in the kitchen, but defender was not in bed with me, but had connection with me on a sofa which was also there. My sister was married on 10th January 1874, and defender accompanied me to Jane Greig's, and had connection with me in the barn. We were alone there. Greig and Davidson had been in the barn, but had left. I bore a child on 17th July 1874, which was the result of defender's connection with me. He is its father. It is a boy, and is still alive. I produce

a certificate of birth.

"JANE GREIG (eighteen).—I live with my father, who is a crofter in Rathen, about a quarter of an hour's walk from pursuer's place. I was at the harvesthome at Invernorth in 1873. Alexander Davidson and I were in the barn that night; so were the parties to this action. We remained there till about five o'clock in the morning. I think at that time the parties were sweethearts. I was at pursuer's again on sowens night. The parties were there also. I was also at the marriage of pursuer's sister on 10th January. Davidson and I and parties left between eleven and twelve, and we four went to my father's. We were in the barn. Davidson and I left the parties alone there. I went to the house, and the parties left the barn after they had been there for about twenty minutes. I never saw defender treat pursuer with familiarities.

I

"ALEXANDER DAVIDSON, farm-servant, New Deer (twenty-three).-In summer of 1873 I was in service near the residence of pursuer and the last witness. understood the parties to be sweethearts, but I never saw him use any liberty with her. I was at the harvest-home at pursuer's. I was also at pursuer's sister's marriage; and afterwards we, along with last witness, went to her father's. Jane and I left the parties in the barn. They came to us in about half an hour.

"LEWIS GRANT (twenty-one), farm-servant, Cairness.-I was at the raffle at pursuer's in October 1873. It was to help a poor man. I was among the last to leave. The only persons I left behind were the parties. They were in the kitchen. I left between eleven and twelve. I did not see him taking any liberty with her."

"Defender's Proof.-DEFENDER recalled.-I had no connection with pursuer on the night of the raffle. Cross. I never had connection with her. By the Court. It is impossible that I could be the father of her child."

--

EX

No. 43. interlocutor, and found it proved that the defender was the father of the pursuer's child.

Dec. 10, 1875.
Dunn v.
Chalmers.

The defender reclaimed.

LORD DEAS.-The nature of the proof in this case is peculiar. The parties were very young. At the date of conception of the child the alleged father was sixteen and the mother eighteen years of age. Both apparently had been respectable and well conducted. It is clear they had formed a strong attachment to each other, and such as might naturally have led ultimately to marriage. It is proved that they were on several occasions left alone together, and this, under the circumstances, was not calculated to lead to suspicion of anything wrong. Three occasions, in particular, are spoken to. The first, on the night of a harvesthome; the second, of a raffle; and the third, of a marriage. It is not suggested that anything improper occurred on the first occasion; but it is alleged by the woman that on the second occasion connection took place on a sofa, and that it was repeated on the third occasion-viz. the night of the marriage. These are the only occasions on which connection is said to have taken place, and the child was born at a time which would sufficiently correspond with the first of them.

It is not alleged that any improper familiarities had been observed between the parties. There is no suggestion that the girl was loose in her manners, and there is no trace of intimacy between her and any other man. These are the peculiarities of this case. The proof of paternity, in an action of filiation, generally turns upon familiarities observed between the parties. Nothing of the kind is found in this case. But I am inclined to think that, under the circumstances, that does not tell against the reliability of the woman's testimony but rather in favour of it. The proof suggests that the connection took place without any premeditation on either side. The parties being together on the sofa and alone, and having an affection for each other, probably forgot themselves on the first occasion, but they did not lose all control over themselves afterwards, so that the fault was repeated once only. There is no improbability in the account given of the matter by the woman. The fact is of great importance that she is not proved to have been even intimately acquainted with any other man. Her conduct was habitually correct, and her general character is unimpeached. Her evidence is uncontradicted except by that of the defender, which has not the same appearance of candour. He had lived for two years within five minutes' walk of where she lived. It is abundantly proved that they had behaved as sweethearts, and were regarded as being so. He represents his acquaintance with her very differently. He says, "I have just spoken to her." He admits having been at the marriage, and having subsequently gone with her and the witnesses, Davidson and Jane Greig, to Greig's father's house. "But," he says, "I do not remember being in the barn at Greig's that night." Now, that forgetfulness is incredible and suspicious; for Jane Greig says that they left the marriage party" between eleven and twelve, and we four went to my father's. We were in the barn. Davidson and I left the parties" (that is, the pursuer and defender)" alone there. I went to the house, and the parties left the barn after they had been there about twenty minutes." In like manner Davidson, who is the next witness, says he was with them at the marriage," and afterwards we, along with last witness, went to her father's. Jane and I left the parties in the barn. They came to us in about half-an-hour." The evidence of

No. 43.

Dec. 10, 1875.
Dunn v.

these witnesses is thus entirely corroborative of the evidence of the pursuer as to the defender and her being left alone together that night in the barn, which, the pursuer says, was the second occasion on which connection took place. The case, as I have said, is, no doubt, peculiar. It is not proved by facts and Chalmers. circumstances of the kind usually relied on in actions of filiation, but the question is whether the facts and circumstances actually proved are not in themselves such as to satisfy the judicial mind that the woman's testimony is true, I am satisfied that they are so, and therefore I am for affirming the judgment of the Sheriff.

LORD ARDMILLAN, LORD MURE, and the LORD PRESIDENT concurred.

THE COURT adhered.

J. B. DOUGLAS, W.S.-ALEX. MORRISON, S.S.C.-Agents.

JOSEPH KELLOCK, Petitioner and Respondent.-D.-F. Watson-Gloag.
JOHN ANDERSON AND OTHERS, Respondents and Petitioners.-

Asher-Lorimer.

No. 44.

Dec. 14, 1875.
Kellock v.

Bankruptcy-Sequestration-Awarding and Recall.-A creditor presented a Anderson, &c. petition in the Sheriff Court of D for the sequestration of the estates of a debtor, but before the induciæ had expired the debtor, with the consent of a concurring creditor, presented a petition for sequestration in the Bill-Chamber, which was awarded, as matter of course, and the process remitted to the Sheriff Court of L, where it was stated the estate could be most conveniently administered. Sequestration was thereafter awarded in the Sheriff Court of D. The petitioning creditor then presented a petition in the Bill-Chamber for the recall of the BillChamber sequestration, and the debtor also presented a petition for the recall of the Sheriff Court sequestration. The Court, following the procedure in the case of Jarvie v. Robertson, Nov. 25, 1865, recalled the Bill-Chamber sequestration in hoc statu, and remitted the Sheriff Court sequestration to the Sheriff Court of L.

Lord Ruther

M.

THE affairs of John Anderson, draper, Thornhill, Dumfriesshire, having 1ST DIVISION, become involved, a meeting of his creditors was held in Kilmarnock on Bill-Chamber. 16th September 1875, and at which a trust-deed for their behoof was furd Clark. executed. The trustee proceeded to realise the estate. On 23d October, however, John Kellock, a creditor for £66 contained in a bill of exchange, which had been duly protested, and the charge upon which expired that day, caused Anderson to be imprisoned, and on the same day presented a petition for sequestration of his estates in the Sheriff Court at Dumfries. The first deliverance on that petition was pronounced on that day. While the inducia on this petition were running Anderson, with the concurrence of William McLaren, Sons, and Company, Glasgow, creditors, presented a petition for sequestration of his estates on 29th October in the BillChamber, which was immediately awarded, and the sequestration remitted to the Sheriff Court of Lanarkshire.

On 2d November the Sheriff-substitute (Hope) at Dumfries, there being no evidence before him of the Bill-Chamber sequestration, on the expiry of the induciæ on Kellock's petition, awarded sequestration under that petition.

Kellock, on 3d November, presented a petition in the Bill-Chamber setting forth the above facts, and praying for the recall of the Bill-Chamber sequestration. Anderson and his concurring creditor lodged answers to this petition on 12th November, having previously on 8th November presented a petition in the Bill-Chamber for the recall of the Dumfries

Kellock v.

No. 44. sequestration, or otherwise for a remit of that sequestration to the Sheriff Court of Lanarkshire. In their answers to Kellock's petition, and in the Dec. 14, 1875. body of their petition, they stated that as the general body of Anderson's Anderson, &c. creditors were in Glasgow the estate could be most advantageously administered there. Kellock lodged answers to this second petition in which he maintained that it would be for the advantage of the creditors that the 23d of October-the date of the first deliverance in the Dumfries sequestration-should be retained as the date of the sequestration instead of the 29th of October-the date of the Bill-Chamber sequestration. He also denied that the bulk of the creditors were in Glasgow.

On 23d November 1875 the Lord Ordinary on the Bills (Lord Rutherfurd Clark) refused Kellock's petition; and in Anderson's petition his

* "NOTE.—It was not disputed that the petition presented on 23d October to the Sheriff of Dumfriesshire was well-founded, and that but for the petition presented in the Bill-Chamber on 29th October, and the proceedings following thereon, the Sheriff would have been bound to award sequestration. The date of the sequestration so awarded would of course be the date of the first deliverance.

"It was maintained, however, that inasmuch as the sequestration had been awarded in the Bill-Chamber on 29th October, it was incompetent for the Sheriff to award sequestration in the petition depending before him. The Lord Ordinary cannot take that view, because no evidence was produced to the Sheriff that sequestration had been awarded in another Court. If evidence of the sequestration awarded in the Bill-Chamber had been produced, it would probably have been incompetent for the Sheriff to have awarded sequestration. But the Lord Ordinary does not think that this would have ultimately prevented the petitioning creditor from having sequestration awarded on his petition, though it might have necessitated the recall of the sequestration granted in the Bill-Chamber, in order to enable the Sheriff to sequestrate. In the view of the Lord Ordinary, a creditor who has presented a petition for sequestration cannot be deprived of the rights under that petition, by reason of a petition being subsequently presented in another Court. If this were so, it would be competent for the bankrupt, by his own act, to delay the sequestration by presenting a petition during the currency of the inducia.

"It was urged that it was of no consequence whether the sequestration was awarded on the 23d or 29th October, as the bankrupt was admittedly notour bankrupt on the former date. The Lord Ordinary thinks that he cannot enter into that question. It is impossible for him to determine it, and he cannot, as he thinks, dispose of the present case, on the supposition that the date of the sequestration is of no importance.

"But it was maintained that there was no ground for recalling the sequestration awarded in the Bill-Chamber, even though the sequestration awarded by the Sheriff was to stand, and that the only lawful course was to remit the latter to the Sheriff of Lanarkshire, to whom the sequestration awarded in the Bill-Chamber has been remitted. It is here that the Lord Ordinary has felt most difficulty. The 19th section of the Bankrupt Act deals with the case of sequestration awarded in the Bill-Chamber and Sheriff Court, and directs that the Court or Lord Ordinary shall remit the sequestration' to such Sheriff Court as shall be deemed most expedient. It was urged that this enactment required the Court to maintain both sequestrations, though of different dates, and that its only province was to remit them to the same Sheriff Court. Without going so far as to hold that it is incompetent to recall the sequestration granted in the Bill-Chamber, the Lord Ordinary thinks that it is the safer course to remit the one sequestration to the other. In doing so, he follows the direct injunction of the Act in the case which has occurred; for he is of opinion that it is most expedient that the sequestration should proceed in the Sheriff Court of Lanarkshire. This is the wish of the great body of creditors, and it was stated by Mr Kellock that it was indifferent to him in which Court the sequestration proceeded.