George Heriot, calling himself the lawful Son of George Heriot, deceased, who was the second Son of Robert Heriot of Ramornie, Esq. v. Hon. Margaret Maitland Makgill, Widow, and James Maitland Makgill her second Son, Otherwise James Heriot of Ramornie, Esq. [1799] UKHL 4_Paton_77

UKHL
George Heriot, calling himself the lawful Son of George Heriot, deceased, who was the second Son of Robert Heriot of Ramornie, Esq. v. Hon. Margaret Maitland Makgill, Widow, and James Maitland Makgill her second Son, Otherwise James Heriot of Ramornie, Esq.
[1799] UKHL 4_Paton_77 · 1799-04-29
George Heriot , calling himself the lawful Son of George Heriot , deceased, who was the second Son of Robert Heriot of Ramornie, Esq., Appellant v. Hon. Margaret Maitland Makgill , Widow, and James Maitland Makgill her second Son, Otherwise James Heriot of Ramornie, Esq., RespondentsHouse of Lords, 29th April 1799 .Subject_ Reduction of Service on the Head of Illegitimacy — Marriage — Constitution. —either by celebration by a clergyman, or by cohabitation as man and wife, or by general repute.A party alleging himself to be the lawful son of George Heriot, second son of Robert Heriot of Ramornie, served himself heir to his deceased father before the bailies of Canongate. In the reduction of this service on the head of illegitimacy: Held, that the appellant had failed to adduce sufficient proof that his mother was lawfully married to his reputed father,

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The present question of legitimacy and constitution of marriage, arose incidentally in the course of the appellant taking out brieves to serve himself the lawful son and heir of George Heriot, second son of the deceased Robert Heriot of Ramornie, and as such, entitled to succeed to the estates of Ramornie.Robert Heriot, Esq. of Ramornie, died in 1751, leaving four sons, William, George, Robert, and James, and four daughters, Jane, Elizabeth, Janet, and Margaret.William entered the military service of Holland, and, after attaining the rank of Captain, died in 1782, without issue.George, the alleged father of the appellant, was an ensign in the army and died in Ireland, but at what time the appellant could not specify. Robert was a doctor in the East India Company's Service, and, after succeeding to the estates of Ramornie, upon the death of his brother William, died in 1789, without ever being married.James died young; and Jane succeeded to the estates of Ramornie after the death of her brother Robert, and died in 1791. None of the daughters were ever married except Janet, and she left no issue. The respondents succeeded to Ramornie after the death of Jane, Mrs. Maitland Makgill, as one of the heirs portioners of Dr. Robert Heriot, as well as heir of tailzie and provision under the entail 1665; while James Heriot was heir of entail of the deceased William Heriot, under the deed 1771.This latter deed conveyed the estate, 1. To his brother Robert; and, failing him, 2. To his sisters seriatim , whom failing, to the respondent James Maitland Makgill, otherwise Heriot.July 8, 1792.After a proof was led in the service for both parties, and the terms circumduced, the inquest signified a desire to have further proof. A second proof was taken, and the term again circumduced on 9th March 1792, whereupon the jury found a verdict in favour of the claimant by the casting voice of the chancellor or foreman.July 5, 1793.The respondents then brought the present action of reduction to set aside the service. A proof was ordered, and the Court, after fully hearing counsel thereon, pronounced an interlocutor, sustaining the reasons of reduction, and reducing the verdict.The appellant having reclaimed, and, besides insisting on the evidence formerly adduced, made sundry new allegations

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The respondents, on their part, reclaimed; and having obtained time from the Court, they, at this period, discovered that John Lumsdaine of Blancern, Esq., was in the knowledge of some particulars extremely material to the question at issue, of which they had not before received information, and they therefore presented an additional petition to the Court, praying that Mr. Lumsdaine might be examined, which the Court granted; and, upon a petition from the appellant, the Court also allowed Mrs. Swan to be examined.The point to which the whole evidence was made to direct itself was, whether Ensign George Heriot, the appellant's reputed father, and Margaret Turner, his mother, were married in the year 1747, or about that period, in Edinburgh?It appeared that he had formed a connection with Margaret Turner in 1748, the result of which was, the birth of the appellant. The appellant, in the outset of his case, represented his mother as a woman of family, of great beauty, of elegant accomplishments, and a pattern of virtue. It afterwards came out, however, that she was the daughter of William Turner, a publican at Irvine. He also alleged, that the marriage of his mother to Ensign Heriot was celebrated by a clergyman in Edinburgh, but adduced no certificate, and no parole evidence of persons who witnessed the ceremony. He also alleged marriage by cohabitation. In the additional evidence adduced, Mr. Lumsdaine deponed, “That about the year 1746, he knew a woman whose maiden name was said to be Peggy Turner, but she was commonly known by the name of Peggy Bar; and the deponent understood that she came originally from Glasgow, or its neighbourhood, and that she had been married there to a man of the name of Bar, but whether he was dead at the time the deponent knew her, or if she had left him, the deponent does not recollect having heard; and when the deponent first knew her, she was reported to be in keeping by Peter Brown, writer in Edinburgh; and the deponent saw the said Peggy Turner for the most part at the house of Mrs. Menzies, who lived in a close leading from the Cowgate to the Society; and the deponent has

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Ensign Heriot, in December 1748, left Edinburgh to join his regiment in Ireland; and some months afterwards Margaret Turner was delivered of the appellant; and about a year after he left she followed him to Ireland (Cork.) Mr. Lumsdaine further depones, “That about the time Ensign Heriot left Edinburgh to go to Ireland, or rather a little after he was gone, the said Mrs. Menzies told the deponent that the said Peggy Turner or Bar had been married to Ensign Heriot; that Mrs. Menzies was the only person who mentioned this to the deponent; and she mentioned, at same time, that Mrs. Elliot, sister to Jenny Christie, who was afterwards well known about Edinburgh, had been present at the marriage ceremony; and both Mrs. Elliot and Jenny Christie were in use to visit at Mrs. Menzies': That Peggy Turner or Bar remained in Edinburgh about a twelvemonth, or rather more, after Ensign Heriot went to Ireland, and the deponent saw her during that time occasionally at Mrs. Menzies': That the day before she set off for Ireland, she sent a message to the deponent desiring to see him: That he accordingly went to her lodgings or room: That she told the deponent she was going to Ireland to Ensign Heriot, and she gave the deponent

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When the appellant's mother, Margaret, came to Ireland to join Ensign Heriot at Cork, General Watson, who was then captain of the regiment, deponed, “That upon occasion of a woman coming over to Cork after Ensign Heriot, and a report prevailing that he was married, he took occasion to ask him whether it was so or not, and he answered that he was not. Believes she stayed there a very short time. The deponent never saw her; and believes the Ensign made the same declaration of his not being married, to the other officers of the regiment.” The other officers spoke to the same effect.There were also letters produced, in answer to inquiries made to Ensign Heriot by his brothers, proving that he had uniformly denied that there was any marriage; but confessing that the boy was his son.There was no proof of cohabitation in Ireland, at least of a nature to constitute the relation of husband and wife. But witnesses were adduced to prove that the Ensign and Margaret

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This evidence was given at the distance of fifty years, and referred to a time when the witness must have been about ten or eleven years of age; and there was no proof that the parties of whom she spoke were Ensign George Heriot and Margaret Turner. The only other proof of marriage by cohabitation in Scotland consisted of hearsay evidence, and a rumour that they had been married by a clergyman. Also, Mr. Boucher, an attorney in Ireland, gave evidence to his being employed for Mrs. Heriot, when in Ireland, to prosecute a certain individual who had ravished her there. He deponed that the proceedings were instituted in her name, designed as the “wife of George Heriot, late ensign of the 25th Regiment of Foot.” “Depones, That no person gave in objections, or moved arrest of judgment, on account of her being designed the wife of George Heriot.” It also appeared from this witness's evidence, that she had gone under the name of Margaret Taylor: That she told him that her maiden name was Turner, and that she was of the Turners of Turner Hall in Aberdeenshire, and was related to a clergyman of the name of Turner in the west of Scotland. There was no evidence that these statements were correct. But what made the evidence more complex was, the deposition of this witness, that he had known them both in Edinburgh when living there, serving his time in an office, and that they then co-habited together. And that in Ireland he had been employed to procure a certificate from the register of the clergyman, in Edinburgh, who was said to have performed the ceremony. This certificate was not adduced, nor was there any evidence of the existence of such a register. But the witness swore to his showing the certificate to Mr. Heriot when he returned to Ireland, and upon his doing so, that he (Heriot) stated,

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The Ramornie family seem, at the solicitation of the Ensign, to have taken and brought up the boy at Ramornie, and from their kindness in this, an inference was drawn in support of his claims. But, on proof, this turned out to be of a nature such as marked their belief of his illegitimacy. He was boarded in a poor man's house at 13s. 4d. the quarter, and only sent to the village school, and afterwards he was sent to the sea. At Ramornie, he was not admitted beyond the kitchen or parlour.Mar. 9, 1798.May 23, 1798.There was still further evidence to a great extent on both sides, for and against the marriage, but, on a final balancing of the whole, both original and that which was afterwards adduced, the Court pronounced this interlocutor:
“The Lords having advised the petition for the Honourable Mrs. Margaret Maitland Makgill, and James Maitland Makgill, now James Heriot pursuers (respondents), with the additional petition for them, answers for George Heriot, defender, to both petitions, additional proof led, and writs exhibited for both parties, they alter the interlocutor reclaimed against, and, in terms of the former interlocutor of the 5th of July 1793, sustain the reasons of reduction, and reduce, decern, and declare, in terms of the conclusions of the libel.”
On reclaiming petition the Court adhered.Against these interlocutors the present appeal was brought to the House of Lords.Pleaded for the Appellant .—1. Because it is established by the evidence in this cause, that the appellant's father and mother were married persons. 2. Because it is admitted, that if the testimony of John Boucher is to be believed, there is no doubt of the marriage in question. But no ground has been stated which impeaches the character of this witness, and no objection has been urged against his deposition, which makes him unworthy of credit. To put the matter beyond question, the appellant has offered to establish the integrity of his character by persons of respectability, whose names are condescended upon; and if there could be room for doubt, it is against justice to deny to the appellant the means of establishing, by the evidence of respectable persons, that this witness is worthy of being believed.

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Pleaded for the Respondents .—1. The appellant has contended that the verdict obtained in his favour by a mere casting vote of the Court, changed the case, and threw the onus of proving on the respondents; but this cannot be regarded by any one acquainted with law and the course of procedure in such cases. The jurisdiction of the Court of Session to admit additional evidence, as they may see cause, is unquestionable, and, accordingly, they did so repeatedly in the present case. A reduction of a service or verdict brought instantly, as it was here, leaves parties precisely where they were before the verdict, and is analogous to a new trial. Of the actual celebration of the marriage between the appellant's reputed parents there is no evidence, unless Boucher's swearing that he obtained a copy of the entry made in the register of the clergyman who is said to have performed the ceremony, be reckoned such. But Boucher is plainly a tutored witness, and unworthy of credit. The story he tells is extremely improbable. There is the greatest reason to believe that no such register ever existed, and if it did, there is no probability that the clergyman would sign a copy of the entry, and give it to Boucher; The testimony he gives is inconsistent with that of others, and even with itself. The character for piety and virtue he bestowed on the appellant's mother he must have known to be false, if he knew her at Edinburgh, as he swears he did. His conduct too, in framing and carrying into effect Highly's deed in favour of the appellant's mother as a feme sole , gives the lie to what he now swears, of his all along believing her to be the wife of Heriot then alive, and his aiding and countenancing a scandalous forgery, meant to do away with the force of that genuine deed, completely blasts his credibility. But even if his evidence were pure, and not liable to such objections, it would be dangerous to allow a marriage to be established by the single testimony of such a fact. The clergyman is dead,—the record is not to be found, and the alleged copy not produced, how is it possible to confute such a witness?2. Cohabitation as husband and wife for a length of time may establish marriage, but here the proof of cohabitation in Scotland rests entirely on the testimony of Boucher ; and the want of other testimony is alone sufficient to destroy his. If the parties had lived together openly, and so long, as married persons at Edinburgh, there would not have been such a penury of witnesses to prove that fact; while the alleged

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So, 3. Although a repute of marriage between the parents, and of the legitimacy of the issue, may also go to establish marriage and legitimacy, yet the evidence in that case must be of general repute. Not only general, but uniform and long continued, and unshaken for a length of time. There is no such general and uniform repute proved in this case; but the contrary. And the evidence against the marriage far outweighs that brought to establish it.In a case like this, it is of great consequence to attend to the conduct of the parties, as from thence inferences of a nature the best possible may be drawn. In a few months after the alleged marriage, Ensign Heriot left this woman with child, and destitute, though he was in affluence. When she joined him a year after, he denied she was his wife, and she immediately disappeared, without persisting. From that time to the period of his death,—a space of twenty-seven years, there is not the least credible proof of his having acknowledged her as his wife, or the appellant as his lawful child. On the contrary, it is proved that he repeatedly, solemnly, and uniformly disowned the connection; and, particularly, he did so in a letter to his brother, Dr. Heriot, when adjured to disclose the truth.

After hearing counsel, it was

Ordered and adjudged that the interlocutors be, and the same are hereby affirmed.Counsel: For the Appellant, R. Dundas, Wm. Macleod Bannatyne, Henry Erskine, John Burnet, M. Nolan. For the Respondents, Sir J. Scott, R. Blair, Wm. Grant, Wm. Adam.