William Innes, and his Tutor ad litem - Burg - Stuart v. William Innes, Esq., and Others - Dr. Lushingto - Sir Wm. Follett [1837] UKHL 2_SM_417

UKHL
William Innes, and his Tutor ad litem - Burg - Stuart v. William Innes, Esq., and Others - Dr. Lushingto - Sir Wm. Follett
[1837] UKHL 2_SM_417
1. In a question as to the paternity of a child born before the marriage of the alleged father with the mother, there is no presumption that he is the father; but the fact of paternity must be proved. 2. Question, whether a child born 301 days after access by the alleged father could be held to be his child?

Subject_ Proof. —

Circumstances in which (affirming the judgment of the Court of Session), in a declarator of marriage and legitimacy, a witness for the defenders having deponed on her cross-examination that she was the wife of a certain individual, and the pursuers not having protested for reprobators, but allowed circumduction to be made, and having thereafter, on the ground of res noviter veniens ad notitiam, applied for leave to adduce proof that the witness was not, and knew that she was not, the wife of the individual she had named, but that he had been previously assoilzied from an action of declarator of marriage at her instance, the House of Lords refused to allow this proposed additional proof to be led.In May 1832 an action was instituted before the Court of Session by Janet Rogers, describing herself as the widow of John Innes of Cowie, esquire, and in name of her son, described in the summons as William Innes, the only lawful son procreated between the said John Innes and

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“Ladies and gentlemen, this woman, Janet Rogers, now on my left hand, is my lawful wife, and I beg you will from this day forth consider her as such.”
That the pursuer Janet Rogers or Innes unequivocally assented to and acquiesced in this declaration by Mr. Innes, who thereupon took a gold ring from his finger and put it upon her finger; that Mr. Innes thereafter repeated the same declaration to the company individually, who severally and cordially shook hands with the parties, and wished them joy on the occasion as married persons; that the company, along with Mr. Innes and the pursuer Janet Rogers or Innes, then partook of the repast which had been prepared as aforesaid by Mr. Innes's special desire; that the aforesaid acknowledgments and declarations of marriage, which so formally and seriously passed between Mr. Innes and the pursuer Janet Rogers or Innes, were soon very generally known to their neighbours and acquaintances, by all of whom the pursuer Janet Rogers or Innes was congratulated as the wife of Mr. Innes; that subsequent to this period Mr. Innes on all occasions recognized, acknowledged, and treated the pursuer Janet Rogers or Innes as his wife, and the pursuer William Innes as his lawful son and heir; and that Mr. Innes and the pursuer Janet Rogers or Innes continued to live at bed and board avowedly as man

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The parties called as defenders were the brother and the sister of Mr. Innes.To the statements in the summons, with some deviations and additions, (unnecessary in a report to be declared,) the pursuers adhered in a record which was made up.On the other hand the defenders denied the alleged marriage and the paternity of the child, and made the following statement, which was in part admitted, but generally denied by the pursuer.The pursuer and her sister May were daughters of the deceased William Rogers, a sawyer, who resided for many years in East Rose Street, Edinburgh, and who

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A proof was allowed and taken, and among other witnesses there was examined by the defenders a woman called Mrs. Captain Barry, alluded to in the summons, and who had been cited by the pursuers under that name, but whom they did not examine. The woman deposed:
“That she is a married woman: That her husband is a captain in the seventy-seventh regiment, at present in Jamaica: That it is three years since she saw him: That she corresponds with him,” &c.
No protest was taken for reprobator; and it was afterwards discovered that she had raised an action of declarator of marriage against Captain Barry, and that he had been assoilzied. The pursuers, therefore, applied

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“The Lords, having advised this cause with the proof for both parties, and heard counsel in their own presence, find, as to the conclusion of declarator of marriage in the libel, that sufficient evidence has been given of facts and circumstances to establish a marriage between the pursuer Janet Rogers and the late John Innes, Esq., of Cowie, and decern and declare in terms of that conclusion of this libel accordingly; and find her entitled to expenses, in so far as relates to this branch of the cause, and remit the account of that expense to the auditor of court to tax the same, and to report: As to the conclusion of legitimacy at the instance of the other pursuer, calling himself William Innes, find that no sufficient evidence has been adduced of his birth as a lawful child of the said marriage, or otherwise of his being the lawful son of the said John Innes; therefore find the said pursuer not entitled to the character or to any of the rights of the lawful son of the said John Innes, and decern and declare accordingly; assoilzie the defenders from the conclusions of the libel at the instance of the said pursuer William Innes; but find the said defenders not entitled to expenses.”
The defenders acquiesced in the judgment as to the marriage; but an appeal was made on the part of the

Footnote

1 13 S. & D., 1059.2 13 S. & D., 1050.

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Appellant .—1. The law of Scotland admits of legitimation per subsequens matrimonium, although the child have been born antecedent to the marriage. It is enough that the child of the woman so married is the child of the husband. Whether it be the child or not of the husband, is a question of fact, to be ascertained in such manner as a fact of that peculiar description is capable of being ascertained; direct and absolute proof may be impossible, and therefore recourse must necessarily be had to presumptive evidence.In regard to filiation or paternity, the law of Scotland adopts the rule or presumption, pater est quem justæ nuptiæ demonstrant. This presumption is so absolute, that it binds the husband, unless he can prove the presumed fact to have been impossible. It has been said that the maxim applies only to children born during lawful wedlock, or rather to cases in which the conception must have occurred posterior to the marriage ceremony. On what authority this has been said the appellant does not know. The only modification

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It may be that the law of legitimation per subsequens matrimonium is attended with inconveniences. It avowedly rests on the hypothesis, that the mother of the child legitimated has been a woman of lapsed reputation,—in what degree, the law takes no account. It adopts what is held to be a remedy in favour of the child; and if this, like most remedies for physical as well as moral evils, have some painful ingredients intermingled with it, the inconvenience is foreseen and encountered by the law, and by the party who avails himself of that law.2. In regard to the period of gestation, it is admitted that Mr. Innes left Edinburgh on the 17th of June 1826, that he departed from London for the Continent on the 26th of that month, that he returned to Edinburgh on the 19th of September, and that the appellant was born on the 14th April 1827. From the 17th of June to the 14th of April are nine calendar months and twenty-seven days, or 301 days. Betwixt the date of Mr. Innes's return and that of the birth, namely, betwixt 19th September and 14th April, there are 207 days, being seven lunar months and thirteen days, or within three days of seven calendar months. 1 The question

Footnote

1 On this subject the following evidence was adduced by the pursuers:
“Dr. James Hamilton, junior, physician in Edinburgh, professor of midwifery in the University of Edinburgh, depones, that he thinks that ten calendar months is an unusually long period of gestation, but not by any means without precedent: that in the course of his practice he has had occasion to know a very few cases of such protracted gestation, with regard to which he could entertain no doubt: that he has known one case of a patient passing eleven menstrual periods by seven days: that by calendar months the deponent means consecutive months, beginning at any one month in the year. Interrogated, for the defenders, whether the number of cases which he has known in which the gestation was

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Footnote

protracted to ten calendar months has, in his experience, been so great as one in a thousand? depones, certainly not. Interrogated, whether it may have been one out of two thousand, or three, or four, or five thousand? depones, that it is impossible to answer this, because a person does not think of keeping a list. Interrogated, whether, in computing the period of gestation, a medical man must not necessarily depend on the statements of the woman, as to the period from which conception is supposed to commence? depones, that the information obtained from the patient relates to the date of her last menstruation.John Moir, surgeon to the lying-in hospital, Edinburgh, and physician in Edinburgh, depones, that he has seen three or four cases in which, and particularly in one of them, he considered that gestation had been protracted beyond the usual period: that with regard to that one case he had no doubt: that there are few cases of the kind in which there is not room for doubt: that in the one case, as to which he was sure, the gestation was protracted a fortnight beyond the nine months, and in the others eight or ten days. Interrogated, what is the opinion entertained by the profession with regard to cases of protracted gestation? depones, that it is the opinion of some medical men that gestation cannot be protracted beyond the nine months; but he believes that the prevailing opinion of the majority, both in number and authority, is, that it may be protracted. Interrogated for the defenders, depones, that he has acted as one of the medical officers of the lying-in hospital for about five or six years, and is aged about twenty-six: That the above case is the only one in which he is certain of the protraction, of his own knowledge: that in this case he took the period from which the time was to be computed from the information of the woman: that the prevailing opinion of the majority is in favour of a possible protraction to the extent of even a fortnight beyond the usual period. Interrogated how far this prevailing opinion extends,—in particular, whether it goes the length of a possible protraction of three weeks or a month? depones, that he thinks it extends to three or four weeks after the usual time. Interrogated, whether in these cases of protracted gestation the woman must not know, or have an opinion, as to whether she is beyond the usual time or not? depones, that he thinks she must suspect it.”The defenders adduced the following witnesses:
“Dr. Thomas Thomson, physician, Edinburgh, (after mentioning that he delivered the woman, and that when he delivered her she was a stout, healthy woman,) was interrogated, whether, either then or at any other time, any thing ever passed which led him to believe or suspect that the woman had gone more than the usual period with child? depones, nothing whatever: that nothing of the kind was stated either by her or by anybody else, and nothing of the kind was hinted by any

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Footnote

body: that it is usual for women who believe that they have gone with child, especially if it be for any long period, to mention this to their medical attendants: that he has been in practice as an accoucheur in Edinburgh upwards of fifteen years. Interrogated, whether it be usual for women to go beyond the ordinary period, or whether this ever occurs? depones, that it occurs very seldom, if it ever occurs at all: that they may go for a few days longer or shorter, but nothing beyond eight or ten days: that he thinks the addition of a month totally out of the question, and thinks so decidedly: that in judging of the period of supposed gestation, one is obliged to proceed entirely on the statement of the female; that there arc various causes which may make the female mistake, and which may give them an interest to mislead.—Interrogated for the pursuers, depones, that he was a muslin weaver from his sixteenth to his eighteenth year, having previously received a good education: that the deponent commenced his medical education after his eighteenth year, and completed it in Edinburgh: that he received his diploma from Aberdeen: that he is aware many cases are recorded in the books of medical jurisprudence, of females having gone ten calendar months with child; but that he believes, and is of opinion, that no such cases ever truly occurred.”
“John Thatcher, physician in Edinburgh, being interrogated, depones, that he has been in practice as an accoucheur for nearly thirty years, during which he has delivered above 10,000 patients: that gestation protracted beyond nine calendar months is a possible, but not a very probable, circumstance. Interrogated, whether he believes in a gestation of ten months? depones, that two such cases, perhaps three, have been reported to him; but that he considered these, and considers such cases generally, as founded solely on miscalculation or misapprehension: that wherever the woman is of bad character, or has an interest to deceive, he would most assuredly ascribe the statement, that she had gone long beyond the ordinary period, to these circumstances. Interrogated, whether, in judging accurately of the exact period of gestation, he is not obliged to depend entirely upon the statements of the woman, or at least to depend so much upon these statements that no certain conclusion can be drawn independently of them? depones, that in general, in respectable practice, certainly he does rely upon the statement of the woman; but that in the later months of pregnancy, if required, accurate and scientific examination could be made correctly, or nearly so, to ascertain its state of advancement, independent of any statement on the part of the mother; but that if no such examination be made, the woman's statements are the only guide: that women without any motive of deception are frequently mistaken as to the period of gestation. Interrogated, whether the woman, when there is any unusual protraction, must not be aware of this fact? depones, “I think she unquestionably must.””

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From the peculiarity of constitution and habits of the human species the period of gestation cannot be precisely fixed, otherwise than by adopting a general latitude; and to this the law has necessarily been accommodated. Questions of filiation necessarily depend on the date of conception; but that date, when the parties are in frequent and common intercourse, cannot be correctly ascertained, because not known to the female herself. In such cases a woman anticipates the date of her expected delivery by counting nine calendar months from the period when her ordinary menstruation ought to have returned but did not return. The physician has no other rule or test. The effect is, that the date of conception remains unknown and uncertain to the extent of twenty-nine days; that is to say, the conception may have occurred, and very probably has occurred, twenty-nine days antecedent to the commencement of the nine calendar months. This is altogether independent of any supposition of accidental or general peculiarity of habit in the woman, or that protracted gestation has taken place. Thus Dr. Hamilton, being interrogated, “Whether, in computing the period of gestation, a medical man must not necessarily depend on the statements of the woman as to the period from which conception is supposed to commence?” depones, “that the information obtained from the patient relates to the date of her last menstruation;” and in this he is corroborated by the evidence of several of the medical gentlemen examined

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The law of Scotland, adapting itself to the medical conclusions drawn from experience on this matter, allows the period of ten months for gestation 2 , and is derived from the authority of the Roman law.In this case Mr. Innes married the appellant's mother; he admitted that he was his father; and there is nothing in the period of gestation to support the respondents allegation of impossibility. The presumption of law must therefore receive effect.3. Admissibility of collateral proof:—It is not easy to gather from the opinions of the judges on advising this branch of the case on what ground the evidence was rejected. It was said that reprobator had not been protested for. It is true that one of the old forms of the Scottish Consistorial Court is, that when a party conceives that a witness is stating what is not true, he protests for reprobator, that is, demands permission to prove the falsehood. But this pretended Mrs. Captain Barry, when attending for examination, had appeared in most respectable attire, and even adorned with costly ornaments, by which those acting on the part of the appellant were imposed upon, and never doubted that her representation of her own status was correct. Hence no protest for reprobator was taken, but after the proof had been concluded the appellant discovered, by communication with Captain Barry, who had been abroad with his regiment, that this woman never had been married to him, that he had been assoilzied in the year 1826 from an action of

Footnote

1 Le Marchands Report of the Gardner Peerage Case, p. 19, foot.2 3 Stair, 3, 42; 1 Ersk. 6. 49, 50; Routledge v. Caruthers , 4 Dow. 395; Sandy v. Sandy , 4th July 1823, 2 S. & D., 453, (new edit. 406); Robertson v. Petrie , 22d Dec. 1825, 4 S. & D., 333, (new edit. 338.)

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Respondents .—(Merits.) 1. The presumption of legitimacy of a child born in wedlock cannot apply to this case. Both Stair and Erskine, in the passages referred to, when commenting on the brocard pater est quem nuptiæ demonstrant, confine it to the case of children so born, and do not even allude to the case of a bastard legitimated per subsequens matrimonium. And the decisions cited are either cases of the presumed legitimacy of adulterine issue, or of presumed connexion imposing on the suspected father of an illegitimate child the civil obligation to aliment it. There is not a

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The appellant endeavoured to argue this case as if the only evidence which was required was such as would be sufficient in a case of filiation to find a man liable for aliment; but this is to confound two cases essentially distinct. In cases of filiation the law of Scotland only requires what is called semiplena probatio of the paternity, in order to lay the foundation for the mother giving her oath in supplement; and as the object of the law is to assist the unprotected female, and ultimately to guard the civil interests of the parish, it sustains merely probable grounds for holding the accused to be the father, as sufficient to introduce into the proof the woman's oath. But this is not a case of filiation: it is one of legitimacy. The appellant claims a status which he has

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2. Then as to the period of conception and gestation, it is admitted, that, supposing Mr. Innes to have had connexion with the appellant's mother on the morning of his departure from Scotland, and that the appellant was the fruit of their intercourse on that day, his birth was protracted to three hundred and one days after conception, or ten calendar months; or supposing intercourse on the day of his return to Scotland, and that the conception is to be calculated from it, the birth was accelerated, and his mother's gestation was only two hundred and seven days, or five days short of seven calendar months. The appellant has thus his choice to

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The appellant being driven by this evidence from any allegation of accelerated gestation, adduced witnesses to show that it was possible a woman might go with child a month beyond the ordinary period.From the medical testimony it is established that if Janet Rogers went with child a month beyond her time she must have known it; but there is not a particle of evidence to show that she ever asserted such to have been the case. This, combined with the other facts of the case, supersede the necessity of medical evidence upon the question of the ultimum tempus pariendi. In considering that evidence it must always be recollected that whatever weight may be attached by the law to the doubts of medical jurists where the question is the legitimacy of the offspring of two married persons whose cohabitation was interrupted previous to the beginning of the usual period of gestation, no influence, unless corroborated by other evidence of the strongest kind, if even then, will be allowed to the mere speculations of physicians as to the possibility of protracted gestation, in presuming the paternity of a child born a bastard, where the point is not the civil question of aliment, but to confer on the child the status of legitimacy per subsequens matrimonium.

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Now, Dr. Hamilton, the eminent professor of midwifery, “depones, that he thinks that ten calendar months is an unusually long period of gestation, but not by any means without precedent; and being interrogated for the defenders, whether the number of cases which he has known in which the gestation was protracted to ten calendar months has in his experience been so great as one in a thousand? depones, certainly not. Interrogated, whether it may have been one out of two thousand, or three or four or five thousand? depones, that it is impossible to answer this, because a person does not think of keeping a list. Interrogated, whether, in computing the period of gestation, a medical man must not necessarily depend on the statements of the woman as to the period from which conception is supposed to commence? depones, that the information obtained from the patient relates to the date of her last menstruation.”Dr. Moir, a young man of little experience, merely says that he has seen three or four cases in which, and particularly in one of them, he considered that gestation had been protracted beyond the usual period; that in the one case the gestation was protracted a fortnight beyond the nine months, and in the others eight or ten days, and that in the four cases he took the period from which the time was to be computed from the information of the woman.Dr. Thatcher “depones that he has been in practice as an accoucheur for nearly thirty years, during which he has delivered above ten thousand patients; depones, that gestation protracted beyond nine calendar months is a possible, but not a very probable, circumstance. Interrogated, whether he believes in a gestation of ten months? depones,

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Dr. Thomson, who delivered the appellant's mother, upon this subject “depones, that he has been in practice as an accoucheur in Edinburgh upwards of fifteen years. Interrogated, whether it is usual for women to go beyond the ordinary period, or whether this ever occurs? depones, that it occurs very seldom, if it ever occurs at all; that they may go for a few days longer or shorter, but nothing beyond eight or ten days. Depones, that he thinks the addition of a month totally out of the question, and thinks so decidedly; that in judging of the period of supposed gestation, one is obliged to proceed entirely on the statement of the female. Depones, that there are various causes which may make the female mistake, and which may give them an interest to mislead.”This is the whole medical evidence which was taken; and did the proof of the appellant being the son of Mr. Innes depend alone upon his establishing the possibility of gestation being protracted to the tenth month, the respondent submits that there has been an utter failure in making out that point of the appellant's case.3. Admissibility of collateral evidence:—The respondents oppose this as incompetent on two grounds; first, that reprobators were not protested for; and, second) that it is collateral to the issue on the merits.

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First, It is an established rule of the law respecting parole proof, that objections which go to the admissibility, or to affect the credibility of a witness, must be stated before the examination of the witness in causa. These objections may be supported either by the evidence of others, or by the admissions of the witness, in the examination in initialibus. In either case it is for the Court to judge to what extent the objection goes, either as stated, or proved, or admitted, and to determine whether the witness shall be rejected as inadmissible, or, being received, the deposition in causa shall be considered that of a witness omni exceptione major, or received only, cum nota, impaired in credit, according to the degree of weight which may be attached to the circumstances which the Court has held as legally diminishing the credit of the witness, without reference to the evidence which may be given by him in causa. If, however, the party objecting to the witness is unprepared with proof to support his objections, or to contradict the denials of the witness in his initial examination, then he may protest for reprobators before the examination in causa, which will entitle him afterwards to lead a proof of any relevant objection then stated, or to contradict the statements made by the witness in initialibus, or generally to prove that the witness, though purged in the usual form, by his own oath, of partial counsel, malice, and bribery, has sworn falsely on all or any of these points. But if no objection is stated, either to the admissibility or credibility of the witness before examination in causa, it is not competent afterwards to offer any evidence to affect either the one or the other. If an objection to the admissibility has been overlooked, and the witness examined, it is too late afterwards to

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No objection was taken to the admissibility or credibility of the witness. The pursuers examined her in initialibus to prove that her mother, a previous witness, had told her the evidence she had given. In this they failed; and, the pursuers stating no objection, she was examined in causa by the defender. In cross-examination they put certain questions to her as to her marriage to Captain Barry, which were not cross to her examination in chief, but entirely out of the case, and which she was not bound to have answered unless she chose.But there is no authority in the law of Scotland admitting of reprobatory proof against statements by a witness in cross-examination. All the authorities imply the contrary, and connect invariably reprobatory proof with the initialia testimonii. 1Secondly, But supposing that reprobators had been protested for, and that the objection was to the initial testimony, the respondent submits that as the issue, whether the witness was married or not to Captain Barry, was

Footnote

1 4 Ersk., tit 2, sec. 29; 4 St. 4S. II; 4 Bankt. tit. 31.; Mor. Dict. 12097, et seq.

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Lord Chancellor .—My Lords, although this case involves matter of extreme importance undoubtedly to the pursuer, and, during some part of the discussion, appeared to me to involve questions of the utmost importance to the law of Scotland, yet it has occupied so many days in discussion that your Lordships probably have had an opportunity of following the evidence which has been adverted to at the bar in the interval between

Footnote

1 1 Phillips, p. 272, 7th edit.; 7 East, 108; 2 Camp. 637; Whish and Woollat v. Hesse , Haggart's Eccles. Rep., vol. iii. p. 680; Sargeaunt against Sargeaunt , 18th Nov. 1834, Curteis Rep.; Rex. v. Watson , 1817, Starkie's Rep., vol. ii. p. 149.

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My Lords,the question between the parties turns upon how far a marriage between the mother of the pursuer and a person who had been her husband before his death operates to legitimize the other pursuer, who unquestionably was her child, leaving the question for consideration, whether by the law of Scotland he is to be considered as the child of her husband?My Lords,it is very satisfactory to me to find that, in the course of the discussion, that which might have been misapprehended in some parts of the argument has been very satisfactorily cleared up this morning, and that it is no question now for your Lordships to consider, whether by the law of Scotland a marriage taking place between a man and a woman, the woman having a child, raises any presumption of law in favour of the legitimacy of that child. It is admitted to be a question to be proved. That proof may arise from the inference to be deduced from the parties having lived together, by which of course must be meant exclusively living together; because, if the woman had lived, not only with the person whom she afterwards marries, but had lived promiscuously with other men, no inference could be drawn from the fact of this woman and the person whom she afterwards married having cohabited; but if there be an exclusive cohabitation,—if there be, therefore, a reasonable inference of fact arising, either from positive proof, or a deduction, from the circumstance of their having exclusively lived together, that a child born previous to the marriage is the child of those two persons,

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My Lords,the course taken by the pursuer in this case proves that there is no such presumption of law; if it were a presumption of law, such as we know to exist in the case of children born during marriage, where no fact is to be proved by previous cohabitation or positive proof,—but where the law raises the presumption that the child born during coverture, during the legal marriage of the father and mother, is the legal child of that couple. But the pursuer adopts the course of entering into evidence to prove the paternity of the child (otherwise, why prove the cohabitation?)—the pursuer supposes it necessary to prove the cohabitation for the purpose of raising the inference of the child being the child of the man whom the woman afterwards married. It is therefore a question of fact; and your Lordships are now to consider whether you are satisfied, from the evidence in this case, that the pursuer is to be considered as the child of Mr. Innes, who married, subsequently to the birth of the child, the mother of the pursuer.Now, my Lords, some facts are free from all doubt and question: that this woman had lived with a person of the name of Morrison,—that she had been with child by that person,—that the child in question was called Morrison after the marriage which was contracted between herself and Mr. Innes,—is a matter without dispute. It was not till a subsequent period (one of the witnesses states it to have taken place after what she describes the second miscarriage of Mrs. Innes,) that they began to call him Innes, but that she herself went by the name of Morrison from the time of the birth up

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Now, my Lords, there is the evidence of a medical gentleman, of whose credit there is no impeachment, that on the day of the birth of this child Morrison came into the room where the mother was, and that the mother stated, “that is the father of mv child.” It is very true that another witness, Miss Spence, states, that Mr. Innes came into the room; but they do not, however, describe the man, whoever he was, that came into the room, as the same party, but represent that on the same day Mr. Innes came into the room, and Mrs. Morrison said, “that is the father of my child.” Now, it is quite impossible that both stories can be true, yet both these individuals are stated as having been introduced to the medical man; so that it would appear that on the same day the same woman had stated that the very same child was the child of the two parties. Now, if your Lordships had to choose between the testimony of Dr. Thomson and the testimony of Miss Spence, I am persuaded that your Lordships would not long hesitate to which of the two your Lordships would give credit. The story of Dr. Thomson exactly corresponds with all that was done afterwards. If Morrison was the father of the child, the child was naturally called Morrison. If Mr. Innes was the father of the child, it is very extraordinary that a woman supposed to be living under the protection of Mr. Innes should for this child have borrowed the name of a person with whom, according to the statement of the pursuer, she had ceased to cohabit.

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My Lords,so far the evidence goes as connected with the supposed paternity of Mr. Morrison. Now, my Lords, how does the evidence stand of the supposed paternity of Mr. Innes? Why, that he left Edinburgh on a particular day, the 17th June, and that the child was born at a period which would leave 301 days from the day of his leaving Edinburgh to the day of the child's birth. My Lords, it is not an immaterial part of this case that the mother, who must have known whether she became pregnant by Mr. Innes in the month of June or not, had not made up her mind, at the time this suit was instituted and the pleadings were prepared, whether she should call this a ten months child or a six months child. She leaves it entirely open. She could not be mistaken upon that, because in the interval between June, when the supposed father left Edinburgh, and September, when he came back, she must have had ample opportunities of knowing whether she was pregnant or not; but she leaves that to take the chance of how the evidence may turn out; and it is also part of her case that the child was not a fullgrown child, although according to the evidence it was a ten months gestation, and although, as my noble and learned friend reminds me, Dr. Thomson states it to be a full-grown child; but there is no doubt upon that, because the evidence that she produces is to support the case of a ten months gestation.Now, the state of the law or of medical science leads to this conclusion, that that is not conclusive against the legitimacy of a child born in marriage. It is within the period, as the counsel have stated, which other nations have assigned as the ultimate period of gestation. It is, however, very near the confines; but even in marriage,

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Now, my Lords, with regard to Mr. Morrison, there was not the least difficulty of his being the father of the child, for there is no evidence that he was not able at this period to have easy access. She was living at Edinburgh, and he was living at Leith. I consider the evidence quite conclusive that she did not go to London with Mr. Innes. I find that she was not long afterwards at Montrose; nor is there a trace of evidence of her having been in London; nay, the letters that are relied upon are very strong evidence that she did not go to London, that she never was with Mr. Innes from the time that he left Edinburgh; and the expression that is to be found in one of those letters about the journey north, with respect to which I made some inquiry when the letter was first mentioned, seems to me extremely strong to show that the facts were, that Mr. Innes was living with another woman, Miss Spence,—that Miss Spence was removed to Montrose during his absence from Edinburgh,—that Miss Janet Rogers was some time at Montrose during that interval,—and that she was made the channel of communication between

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Then, in the same style, he writes on the 12th August, addressed “Mrs. Morrison.”—“Write to the north, and say you will pay a visit soon, and make a very agreeable communication. Of course you will not leave Edinburgh till I have seen you, which I expect will be Friday next week.” Now there can be no doubt to whom that communication was to be made, when he says, “Write to the north.” It was to inform Miss Spence, who was living with Mr. Innes as his mistress, of Mr. Innes being then about to return. He directs Mrs. Morrison to make this communication to Miss Spence, with whom he had been cohabiting before he left Edinburgh, and with whom, unquestionably, he

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Now, it is a very singular state of circumstances if prior to this time any cohabitation had taken place between Mr. Innes and Janet Rogers. There is undoubtedly evidence of the fact; that is to say, Miss Spence speaks to the fact, and two other witnesses, Gow and Miller, speak to that which may be considered also as evidence of the fact, though not very positive; but it is to be observed, with regard to the two last witnesses, that the circumstance of Mr. Innes going to the house where Janet Rogers was living is inconclusive, if we once arrive at the fact that he was cohabiting with Miss Spence. The house where Janet Rogers was to be found occasionally was the house where Miss Spence was living; his visits to the house, therefore, would prove nothing. I believe one of the other witnesses says she went into the parlour, where there was a bed, and where Janet Rogers slept. She does not go the length of Miss Spence, who, according to her own supposition, was a discarded mistress, but still was permitted to live in the house where Mr. Innes was living with the mistress who had supplanted her; and they were altogether on such friendly terms, and there was so little concealment between them, that Miss Spence walks into the parlour at four o'clock in the morning, and very good naturedly bids Mr. Innes and Janet ogers good bye, and then saw them in bed together. Not a very probable transaction to have taken place between a discarded mistress and a mistress who had usurped her place.Now, my Lords, it also appears that Mr. Innes having cohabited with Miss Spence at all events up to the

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My Lords,after the birth of this child, when, according to the evidence, Mr. Innes, though he did not call it by his own name, recognised it, and treated it as his own, we find, in January 1828, he makes a deed, disposing of his property, in which he provides a small annuity of £15 a year for each of the two unfortunate sisters, with whom he had, at some time or other, cohabited, but he takes no notice whatever of this child. Mrs. Morrison had two other children; and he takes no more notice of this child than he does of the other two; but he provides £15 a year to be paid to Janet Rogers, and £15 a year to be paid to May Rogers.My Lords,it appears clearly in proof, after Mr. Innes's return in the year 1827, and after the birth of this child, that he was regularly, and publicly, and notoriously cohabiting with May Rogers, the sister of this woman; and, according to the statement of the mother of the child, who had supplanted Miss Spence, she found herself supplanted by her own sister, who lived in her own house; and she makes no objection to the

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My Lords,according to the pursuer's statement of the case, a more disgusting scene of profligacy than the whole history of the transaction can hardly be stated; a man living with two sisters, both sisters living together, according to her statement, which would show that the connexion with Mr. Innes was going on and subsisting between the two sisters at the same time, for it is no part of her case that he had rejected her, or had discontinued living with her, but he was living with May Rogers; at all events she was content to live in the same house.My Lords,so matters go on until the period when, according to the evidence, Janet Rogers, who had undoubtedly become the mistress of this Mr. Innes, is stated to be with child again. A marriage takes place, and according to the evidence there must have been a miscarriage, because she is stated to be with child in the September of one year, and the witness states that she was pregnant twice, and that she understood that she had miscarried; but, however, a pregnancy being supposed to have taken place, the marriage takes place; but still this boy goes by the same name of Morrison.Now, my Lords, if the case stopped here,—if there was no evidence of declarations,—if it rested upon that simple narrative of a woman having lived with a person of the name of Morrison, the child that was born being called Morrison, the woman having subsequently lived with Mr. Innes, and that the child could not be a child of Mr. Innes unless there had been a gestation of three hundred and one days,—could your Lordships have any doubt of the fact? because your Lordships are called

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My Lords,if we look to the evidence of declarations (which at all times are very unsatisfactory evidence), I think in this case at least the declarations would be strong in favour of the illegitimacy. No doubt there are declarations in favour of the legitimacy, but they come in at a very suspicious time. I find no declaration from the time of the birth up to the time of the marriage. I find no declaration from the time of the marriage up to the spring of 1831, when it appears that expectations which might have been realised had been disappointed by the supposed pregnancy not having produced a child. There are declarations on both sides; there are declarations at that period of his recognizing this boy and calling him his own, but there are exceedingly strong declarations on the other side, quite sufficient in my mind to counterbalance them.My Lords,it is not my intention to go into the detail of that evidence; your Lordships have had it read, and repeatedly commented upon, and it must be fresh in your Lordships recollections. It appears that his object was to have a son and heir to his estate, and that he did endeavour to have it believed that this child was his son, when he had no expectation of having another, is abundantly clear. There are abundant declarations of his that he could not be the father of this boy, because

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My Lords,it is hardly necessary to say any thing upon the other appeal which has been touched upon at the bar, but I apprehend upon that there can be no question. There is a woman examined,—Mrs. Barry, who describes herself as the wife of Captain Barry,—and she gives evidence very important to the issue between the parties. At a subsequent period it is said to be discovered that she was not married to Captain Barry; that therefore she had assumed a false character, and represented herself as the wife of Captain Barry when she was not; and raising that question—not raised till after the evidence was before the Court—an entirely new suit is instituted; and the parties have gone into evidence upon that collateral issue, whether she was the

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Upon these grounds I submit to your Lordships that both interlocutors ought to be affirmed.Lord Wynford .—My Lords, I entirely agree with my noble and learned friend who has just addressed you. He states that the only reason for not dismissing this appeal with costs is that the appellant sues as a pauper, and therefore it is useless to direct him to pay the costs.My Lords,this is a very important case; when I say it is a very important case I do not mean that in its decision it is attended with the least difficulty. I have not entertained myself the smallest difficulty since I heard the very able speeches (and very able they were) of the two learned counsel who addressed themselves to your Lordships on behalf of the appellant. If any arguments could have altered the opinion I had formed from reading the papers it would have been the arguments they have addressed to us; but I confess they did not shake in the smallest degree the opinion I had formed from a diligent and attentive perusal of the papers. Still I say that this, though not a difficult, is an important case, for as long as the law of Scotland with regard to marriage continues as it is,—unless some course is taken to prevent such proceedings as have

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My Lords,the learned counsel for the appellant, as I understood him, first put this cause upon the ground of legal presumption. He said distinctly, you are to presume for a marriage which legitimizes children upon the same ground as for a marriage which precedes the birth of the children; so I understood. I looked into the law books of Scotland for the purpose of ascertaining this, and I found that where they talk of presumption it is always in cases of marriages which precede the birth, and that there is no case where presumption is alluded to in marriages legitimizing children by taking place subsequent to the birth. The language of Mr. Erskine is very strong upon this; he does not talk of raising a presumption, but he says the effect of marriage after the birth is this;—it gives a status of legitimacy to children that are born before the marriage, who are allowed to have been procreated by the parties so marrying. Establish the procreation by the man and the woman, and then the subsequent marriage legitimizes the child; but until that be established, either by direct or presumptive proof, you cannot legitimize the children. The law of Scotland would be intolerable if it had that effect. If the rule contended for on the part of the appellants were the law of Scotland, it appears to me that if a man had a connexion with a woman at a brothel, and he afterwards married that woman, he would legitimize every bastard born of her after that connexion. I do not know where it would stop. You

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Now, my Lords, what is this case? There is as I consider no evidence of any cohabitation previous to the birth of this child; when I say no evidence, I am aware that there are three witnesses, as Mr. Burge has told us; there are two witnesses who prove scarcely any thing; one of those witnesses proves that Mr. Innes was at the house, as it is very natural that he should be, and that he was there in company with Janet Rogers; that I do not think would be sufficient for proof of cohabitation, because it is not to be taken that the parties go to bed together because they are in the house together; he went to see his mistress who was living there at the time, and he would necessarily be in the house with Janet Rogers, because she lived there. But is that to raise any inference whatever of any connexion having taken place between them that could render this party legitimate, which could raise an inference of Mr. Innes being the father of the child? The other witness does not go so far. She says she has known them in the parlour, where there was a bed, till one o'clock in the morning. But whose bed is that? Not Mr. Innes's. Does that prove that species of cohabitation which would give birth to a child?That reduces the proof of cohabitation to the evidence of Miss Spence. She proves cohabitation, and a most extraordinary proof of cohabitation; it is such as no jury would believe, even if it was not contradicted. I am fully persuaded that if it were referred to any jury in

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In the first place, as to her own connexion with Mr. Innes, which she states to have been about the year 1824, it is positively proved that she was connected with him in the year 1819; she states that the connexion ceased a little before she went to Montrose. It is proved positively that that intercourse continued during the whole time that she was at Montrose. It is proved by two witnesses that Mr. Innes came to Montrose and saw her, and continued there two days; and it is proved farther, that she was brought back from Montrose, after he returned from France, to live with him. My Lords, if we wanted any thing more to rebut the inference it is to be derived from this letter. Mr. Burge very ingeniously endeavoured to press upon your Lordships that these were love letters

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Now, here she is directly contradicted by three or four witnesses. Miss Spence tells you that she had lived with Mr. Innes, and she was kind enough to come back to him on the day of the birth of the child. Here she is directly contradicted by Dr. Thomson: she tells you that most improbable story, that she

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Upon these grounds I humbly submit to your Lordships that there is not the least evidence of that species of cohabitation between this man and this woman at

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How is it then with respect to Mrs. Janet Rogers? Does she cohabit with any body else? She clearly had a child by Morrison in 1823. There is evidence of Morrison acknowledging this very child; there is evidence of the mother being always called Morrison, and that she was never called Innes till about the time of the marriage. But there is stronger evidence than that. Who at that time lived with Mrs. Morrison at Portobello? It is contended on the part of the appellant that it was Mr. Innes; but it is proved by two witnesses, on the part of the respondent, that it was Mr. Morrison. Mr, Morrison died sometime after this, and Mrs. Morrison, afterwards called Mrs. Innes, is stated to have gone into the north to get some of her late husband's property to pay the

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It is said that there are declarations. Declarations, I agree with the learned counsel at the bar, are entitled to very little credit; and there are some declarations in this case of importance brought forward to repel the declarations on the other side, namely, the declarations of the supposed father and the mother. It is not very likely the father and mother would state the child to be illegitimate unless it was so; the mother may have a strong interest to make the child legitimate, the father may have a strong interest of some kind, but we have declarations on both sides. There are declarations on the part of both, down to the year 1830, treating this an illegitimate child. Why was there a change of conduct in this respect? Undoubtedly it was because some short time after Mr. Morrison died Mr. Innes doubted whether he should get a child from this woman, and then, for the first time, to gratify his spleen against his brother, he thought proper to bring forward this child as his own. Then you have undoubtedly the name marked on the satchel, and you have several declarations, “This is a pretty boy, a nice boy,” and so on; you have indeed plenty of declarations that this child was legitimate when it became convenient for him to say that this child was legitimate for the purpose of cheating his brother out of the estate.Then, my Lords, we have evidence of the subsequent marriage. Upon that we are not called upon to decide,

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The House of Lords ordered and adjudged, That the said petition and appeal be, and is hereby dismissed this House, and that the interlocutors so far as therein complained of, be, and the same are hereby affirmed.Solicitors: Spottiswoode and Robertson— Johnson and Farquhar, Solicitors.