Page images

debt. In some courts this is done by a short defence of denial. In others, and generally, a full record is made up of averments and admissions or denials by each party alternately in shape of condescendence and defences. The proof on both sides is taken by the sheriff in writing. Parties are thereon heard viva voce. The sheriff substitute gives judgment condemnatory or absolvitory. There is an appeal allowed, and generally taken, to the sheriff principal and not unfrequently to the Court of Session, and it is open even to the House of Lords. In all this there is very great delay and very much expense. Often the defendant suffers as much in costs as would suffice to support the child to mature manhood, and very frequently, with exhausted means, the burden is thrown on the parochial board. The procedure in England appears recommended for economy and dispatch that in Scotland requires amendment to ensure a speedy and less costly decision with due regard to the paramount interests of justice. Seeing that in Scotland the jurisdiction is exercised by skilled judicial functionaries, and that evidence in this class of cases is generally circumstantial, there may exist some reason for no longer entrusting such cases to the ever-shifting and non-legally trained justices in England, but transferring the jurisdiction to the County Courts, which have been so far borrowed from the ancient Sheriff Courts of Scotland, and have obtained the confidence of the public. 8. In England the order when given is on the father to pay towards the support and education of the child, a weekly sum not exceeding 5s. each week, with the expenses incident to the birth and funeral, if the child has died before the order, and with costs. If the father fails to implement the order on certain farther proceedings the same may be recovered by distress and sale of his goods, and, failing such recovery, he may be committed to gaol for a term not exceeding three months, unless the sums with additional costs be sooner paid. In Scotland decree is given for child-birth expenses and aliment. The rates unfortunately vary in different counties, and are slightly increased with the rank of the father. This last obviously is not wise as forming an iuducement to a woman to select, not according to truth but on ability of the man to give support. The common allowance in Scotland is 30s. for the expenses attending the birth, and 30s. for each of the three first or nursing quarters, and 25s. for each subsequent quarter (that is about 2s. 6d. in the week), payable quarterly in advance, with interest, until the child, if a female, reaches the age of ten, or if a male seven years. At these periods the father may claim the custody unless good grounds of objection can be shewn, and if the custody be refused, the mother's claim of aliment ceases. The rates are supposed to be one-half of the actual cost of support, the mother contributing the other half, either by her nurture or in money where the child is given in charge to a third party, which last is not uncommon. The recovery of the sums awarded is as in any other ordinary claim of debt. Poinding and sale, or distress of moveables, is the usual procedure, but the great proportion of this class of defenders have none to attach. They may be imprisoned, but only as civil debtors. Claims of aliment of whatever amount are specially excepted from the statute abolishing civil imprisonment in Scotlaud for debts under £86s. 8d. (£1oo Scotch money), 5 & 6 Wm. IV., c. 70. Imprisonment for debt still exists in Scotland for sums upwards of the above stated sum, though abolished in England, except on commit. ments from County Courts. The mother, instead of obtaining aliment for her child, has under an old Scotch statute (the Act of Grace) in her turn to aliment the father in prison at so much each day. He may ultimately get liberation by the process of Cessio Bonorum, but only on finding caution for the future aliment of the child, it may be at a reduced rate than what was awarded by the Court. There is no penal coercion save what has been already mentioned where the support of the child has been thrown on the parochial board, and the defendant has been proved to have been able to contribute to its support. Where the father has been imprisoned in England the mother is not obliged to find him in ailment as in Scotland. He or his friends may provide such, and if unable, he is supplied with the common prison dietary at the public expense. In England (though still undecided) the opinion is that imprisonment cancels the claim for which the man suffered imprisonment, but leaves the future aliment intact. In Scotland the imprisonment of the father does not cancel any part of the claim, but where he obtains Cessio such protects from imprisonment for bygone, but not for future aliment. Under this head the law of England is, in some respects, preferable to that of Scotland. 9. In England it has been now settled that a woman, who has failed in her first application, may repeat her application. An appeal is allowed where an order is given, but none is provided where refused. Hence it has been decided that the refusal is more of the nature of a nonsuit than of an adjudication. . No doubt the first refusal has weight in disposing of a renewed application unless supported by additional evidence. In Scotland an appeal is allowed alike against a decree absolvitary as against one condemnatory. The final decree of absolviture is res judicata, and bars all farther process. The advantage in this point we claim, seeing that a party should come prepared with all possible evidence, and it is hard to keep a defendant under the torture of so delicate a claim. It also opens the door for a defeated party to get up farther evidence regardless of truth. Io. In England an appeal may be taken within twentyfour hours after the adjudication, from Petty to Quarter Sessions, on the appellant finding caution for costs. In Petty Sessions either party may demand a case entirely on points of law, to be laid before any one of the Superior Courts of law. On any legal defect on the face of the order a writ of certiorari from the Queen's Bench may be obtained. In Scotland, where alimentary claims have been brought before the justices, an appeal was open to the Quarter Sessions, which is a court little recognised in Scotland. These claims are now generally brought before the Sheriff. An appeal, as has been said, is allowed to the Sheriff Principal by either party, and thence to the Court of Sessions, and that without any surety for costs of appeal. The review allowed in England is very cheap and expeditious. That in Scotland is very costly, tedious, and often unsatisfactory. We greatly lament the want of stating cases to our Supreme Court, who cannot interfere in most statutory cases, unless where serious errors in form have been committed. Every county in Scotland, therefore, rejoices in its own law of road, public houses, game, and such statutory offences confided to the jurisdiction of the justices. A better mode of dealing with cases of paternity might safely and wisely be introduced into both countries. II. The most important enquiry in this branch of law, and that which induced me to write this paper for the considera. of the legal profession, is the nature and form of the evidence necessary to support the mother's claim, and without which it falls to be negatived. In England the mother's oath is first admitted to the paternity, and the order is given, “where her evidence is corroborated in some material particular by other evidence to the satisfaction of the justices." It is believed that one witness in England, as with us, is sufficient to corroborate. What is a material fact of necessity is left to the judgment of the court. This depends much on the status, ages, and character of the parties, and the customs and usages of the locality. Therefore it is wisely held that in this class of cases precedents are of no authority, as what would be justly held material in one case might be quite immaterial in another. In England the defendant may be called as a witness by the mother, or he may offer himself, as such for himself. The evidence, in the Petty Session, is not reduced to writing, unless where it is to found an order of commitment to prison. Notes are frequently taken so as to guide to the after examination of the witnesses. On an appeal to Quarter Sessions the same witnesses may be reexamined, and other witnesses, for the first time, called on either side, which renders the appeal an original case. In

Scotland the evidence is always reduced to writing at the first, and forms the only ground of judgment in the appeals; unless in some very rare cases on strong grounds, additional evidence is admitted in explanation or contradiction. In Scotland, up to the year 1853, when the evidence Act, 16 Vict., c. 20, introduced the law of England on that matter, the form of procedure in this class of cases was peculiar, and reflected much credit on the sagacity of our ancient jurists. It was well designed at once to protect the innocent and convict the guilty. Before the above date parties (and at one time relations within certain degrees) were not admitted as witnesses either for or against themselves. They could only be put on oath on a reference to that sanction which was and still is held a judicial contract shutting out all other evidence. In some few cases, however, where sufficient ground was laid, but which of necessity did not amount to the full degree of evidence to support a claim, the claimant's oath in supplement was allowed to complete the evidence. Cases of affiliation were admitted to this category. On the record being made up and closed, (and sometimes before that stage, though such premature proceeding was judicially reprobated) the defender was called on to undergo what was termed a judicial examination in presence of the court. An examination was taken, but not on oath. This declaration was held as good evidence as against the declarant, but nowise for him. His declining to answer questions, or his pleading forgetfulness of recent matters, were taken as strong points againt him. This mode of investigation is expressly reserved in the Evidence Act, 1855, and has been approved by the courts 15 January, 1842, (Wilson.) 2nd June, 1843, (Kirkpatrick.) It, however, is very seldom resorted to, and the woman generally calls the defendant as her first witness before he has the opportunity of hearing the evidence of herself and other witnesses. The parties were then sent to probation. The Pursuer adduced evidence of facts and circumstances especially occurring between six and ten months of the birth of the child. The defender was entitled to lead evidence to

« PreviousContinue »