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Cite as: [1835] CA 13_1050

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SCOTTISH_Shaw_Court_of_Session

Page: 1050↓

Innes

v.

Innes
No. 327.

Court of Session

1st Division

July 7 1835

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

Mrs Janet Rogers, or Innes, and William Innes,     Pursuers.— Keay— Maitland— Robertson— Maconochie. William Innes,     Defender.— D. F. Hope— Rutherfurd— Handyside.

Subject_Husband and Wife—Marriage—Parent and Child—Proof.—

1. A man caused a proclamation of the banns of marriage to be made between himself and a woman with whom he was living at bed and board, and in presence of some of the woman's relations, whom along with others he invited to celebrate the marriage, he declared her his lawful wife, to which she assented, and they were congratulated as spouses by the company, and afterwards lived at bed and board, and were habit and repute man and wife; held that a valid marriage had been contracted. 2. Circumstances in which held that the son of a woman, who was married about three and a half years after his birth, had failed to establish that he was the son of the person to whom she was so married.

After the death of the late John Innes of Cowie, W.S., an action was raised by Mrs Janet Rogers, or Innes, designing herself his relict, and by her son William, designing himself William Innes, lawful son of the deceased, for the purpose of having the status of the pursuers declared to be respectively that of relict and son and heir of Innes. By a first marriage Innes had one son and three daughters. But the son died young, and Innes became a widower prior to the occurrence of the circumstances after mentioned. The action of declarator was directed against William Innes of Ramoir, brother of the deceased, who was heir of entail of the estate of Cowie failing male issue of the deceased, and also against the daughters of the deceased, but they did not appear.

The main facts of the case were the following: *—Innes left Scotland and went to France on the 17th of June, 1826, and did not return till the 19th of September of the same year. The child was born in the house of the mother in Greenside Place, Edinburgh, on the 14th April, 1827, and in the intermediate period she was continually in Scotland. If Innes had been the father, the boy must have been born of a gestation either of the period of about seven or about ten months. The latter hypothesis was that adopted by the pursuers. He was a perfectly full grown and healthy child. No statement was made to the accoucheur (Dr Thomas Thomson) by the mother at the time of her confinement

_________________ Footnote _________________

* Much evidence was adduced in the cause, which was entitled to little weight in consequence of the indifferent character of the witnesses, or an apparent leaning in their testimony.
that there had been any unusual period of gestation, though it is the common practice to make such explanation wherever the circumstance occurs. Dr Thomson saw nothing to raise any suspicion that the boy was not delivered after the ordinary gestation; and it appeared from the medical evidence that the occurrence of a gestation of ten months or thereby, though not quite impossible, did not happen once in & thousand times, and even in the few cases of its alleged occurrence there was room to suspect error in the calculations of the mother. *

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* 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 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 any body else, and nothing of the kind was hinted by any 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 deeidedly: That in judging of the period of supposed gestation, one is obliged to proceed entirely on the statement of the female: That there are 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 alter 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.’”

At the time of the birth of the child, and for a considerable period thereafter, the mother passed under the name of Mrs Morrison. She took this name from a man named Alexander Morrison, to whom she had born two children previously in 1818 and 1823, both of whom were named Morrison. The boy was also, for about three years after his birth, called exclusively or chiefly by the surname of Morrison. Alexauder Morrison was married in 1819 to another woman, by whom he had several children, and this marriage was dissolved by the death of Morrison I in 1828. Notwithstanding this marriage the mother (Rogers) was in the habit of giving out that he was her husband.

Several of the defender's witnesses deponed that she had told them that Morrison was the father of the boy, and that he was begot when Innes was abroad. And on one occasion a person who was not Innes had called at her house, apparently when intoxicated, and said that the boy was his.

On the day when the boy was born, a man came into the room where the mother was lying confined, and he seemed inclined to withdraw on seeing Dr Thomson, the accoucheur, there. The Doctor asked him to come in, saying there were no secrets here, and the mother then said, “That is Mr Morrison, the father of the child.” This person was taller than Innes, and about the same height with Morrison, which was six feet, but his dress did not correspond with any dress which Morrison's wife had ever seen him wear. The appearance of the man seemed rather to be that of a mechanic than a gentleman.

The Doctor's account for attendance at the delivery was entered to the debit of “Morrison,” as he was given to understand that the mother was married to a person of that name, but the account remained unpaid.

So soon as Innes had reached London, on returning from France in September, 1826, he addressed several notes to Rogers, in terms which implied a degree of familiarity which was incompatible with their respective stations in life. They did not contain any apparent reference to an existing illicit connexion between them, and rather seemed to relate to another person who was then kept by Innes, and to whom Rogers was occasionally employed by Innes to pay money, &c.

Several of her witnesses swore that Innes visited her, and had connexion with her in 1826, at the period when she alleged the boy to have been begot, and also that on the day of the delivery Innes called on her, and said the boy was his. But two of these witnesses were of light fame, and one of them had previously said she knew the boy to be Morrison's—that Morrison was present, as the father, on the day when it was born, and that it was false to impute the paternity of the boy to Innes.

Within a few months after he was born, Innes was living in concubinage with a sister of Rogers. The sister was then his servant, and the pursuer frequently called at the house of Innes with the boy, at the time when apparently she must have known of the connexion between Innes and her sister. She then passed under the name of Mrs Morrison, and about this time her sister occasionally reproached her with allowing Morrison to continue his connexion with her as he could do so little for her.

In 1829, the sister, who was still in the service of Innes, met with a severe accident, and, being confined in a house which Innes had taken at Portobello, was attended there by the pursuer. Innes had got into great embarrassment in his affairs, and was now living apart from his family, and he afterwards went to inferior lodgings at Eastfield, near Fisherrow. From this time the pursuer seemed to have been constantly with him, as well as her three children, including the boy in question, and her sister, and their mother.

In August 1830 Innes executed a settlement, by which he directed his trustees “to pay unto Janet Rogers, eldest daughter of the deceased William Rogers, and unto May Rogers, his second daughter, yearly, the sum of £15 sterling each during their natural lives.”

Before this time Innes had quarrelled with his brother, and had repeatedly expressed his wish to have a son, and his intention to marry, so as to cut his brother out of the succession to the estate of Cowie. His wish to have a son was mentioned long after the birth of the boy, whom Innes was said by the witnesses to have sometimes called Morrison and sometimes Innes. It was deponed to that he had been seen giving lessons to him on the Sunday evenings, and otherwise attending to his education. He also took some charge of the education of the other children.

In December 1830, Innes stated to a witness that he was going to marry the pursuer, and he caused her mother, sister, and brothers, to be brought to the house. In order to obtain unexceptionable testimony from persons who were not related to her he also called in other three witnesses, and one of them thus described what took place on their assembling:—“The pursuer was sitting on a sofa at this time, and Mr Innes desired her to rise, and then stated, in the hearing of all the persons present, that she was his lawful wife, Mrs Innes of Cowie, and desired them ever after to address her by that name: Mr Innes took a ring off his finger, and put it upon the pursuer's finger, who thereupon took the whole company as witnesses to the declaration of marriage which Mr Innes bad just made.”

A few days after this, she having desired a more regular celebration of marriage, he caused a proclamation of banns of marriage between her and himself to be made in the church of Duddingston, as the parish where they then resided, and he paid the fee of £1, 1s. to the session-clerk. He also invited a person to act as best maid to her, and he ordered gloves to be got ready for the occasion, and caused nearly the same persons to be invited as before, with the addition of two other strangers. The meeting was held on the day following the proclamation of banns, and the witnesses swore “That, on this occasion, and in presence of the company assembled at Mr Johnston's, Mr Innes repeated what he had said on the former occasion, that the pursuer was his lawful wife, although he could not celebrate a regular marriage with her until he had made certain arrangements for his family: That the pursuer seemed to acquiesce in this declaration, but did not say any thing: That the deponent and the rest of the company then wished the pursuer and Mr Innes much joy as married persons, and addressed the former as Mrs Innes: That the deponent continued acquainted with Mr Innes for a twelvemonth after this time, and that she occasionally visited in their house: That she has dined with them, and that she has often seen the pursuer sit at table as Mr Innes's wife.”

Some months afterwards, the session-clerk of Duddingston had occasion to call on Innes, when the pursuer pressed much to have a regular marriage celebrated, on which occasion Innes referred to the case of Macadam of Craigengillan, and assured her that she was lawfully married to him already.

For several months before the irregular celebration of marriage above mentioned, Innes and she had lived at bed and board as man and wife, and had been so reputed by the neighbours. This continued after the celebration also; and she was called Mrs Innes both in presence of Innes and elsewhere, but he occasionally denied her right to that title, though this was apparently from a passing ebullition of temper. Subsequently to the celebration, the name of Morrison ceased to be applied to the boy, who passed generally under that of Innes, though occasionally called Morrison, but the evidence of the witnesses left it doubtful how far Innes had ever considered the boy his own, or sanctioned the use of the name of Innes. The preponderance of evidence seemed to be that Innes, though his conduct was somewhat variable, did not view the boy us his own; and, as late as 1831, he expressed to two medical men his hope that the pursuer was then pregnant, as he had only daughters, and an estate depended on the pursuer's having a male child. On the other hand, when sending the boy, in 1831, to school, he was introduced by Innes to the teacher as his son, and the name of Innes was marked on his satchel by a schoolfellow.

Habits of intemperance latterly increased on Innes, and he died, in April 1832, in great poverty.

In these circumstances, the pursuer pleaded, that the evidence of her being lawfully married to Innes was complete. There was not only the deliberate acceptance of each other as man and wife before witnesses invited for the purpose of attesting the ceremony, but there was also the permanent cohabitation at bed and board as man and wife, and there was the habit and repute of this status by the neighbourhood. The proof was the stronger as Innes was a professional man, and had specially referred to the case of Craigengillan, as showing that what he had done amounted to a valid and effectual marriage by the law of Scotland.

On the part of the boy it was pleaded, that, as his mother was the wife of Innes, and the connexion between Innes and her had commenced prior to the period of his conception, he must be presumed to be their son, and was therefore legitimized by the subsequent marriage. The true date of the marriage must be held to draw back to the period of the first copula between the parties, and then the rule applied, pater est quam nuptiæ demonstrant, to the effect of absolutely overcoming the alleged improbability of a gestation of ten months; for there was no mere balancing of probabilities which could justify the Court in depriving a child of the status of legitimacy if its parents were married, or presumed to be married persons, at the date of its conception.

The defender answered, 1st, That there was no sufficient marriage contracted. Innes had lived in concubinage with the sister of the pursuer, which made it unlikely he should ever marry her. The second alleged celebration of marriage was no better than the first, and yet all parties had felt the first to be insufficient, otherwise the second would not have been resorted to. And it appeared that Innes had repeatedly denied her right to use his name, even after the alleged celebration.

2. Under the circumstances, it was necessary to adduce full and complete proof that the boy was the son of Innes. In place of this, there was the highest degree of moral probability that he was not the son of Innes at all. He could not be so unless he had been born after a period of gestation almost incredibly protracted. The witnesses on whom the pursuer chiefly relied for this part of the case were of doubtful credit, and the proof was not sufficient to establish with certainty that Innes had any connexion with the pursuer at so early a period. Morrison, whom she had repeatedly claimed as her husband, was still alive, and Innes himself was in concubinage with her sister, apparently with her knowledge. There was also very strong evidence to show that Morrison, who was the father of the first two of her children, was also the father of the third.

The rule pater est quam nuptiæ demonstrant had no application, as there was no marriage in existence at the time when the boy was begot. Considering the loose character of the mother, it would be most dangerous to extend such a rule to a case like this.

The Lord Ordinary reported the cause to the Court. *

Lord Balgray.—I think this ease a very clear one on both of its branches, I have no doubt that there was a valid marriage, by the law of Scotland, between Innes and Janet Rogers, And I have as little doubt that the legitimacy of the boy is not made out. He is not proved to be the son of Innes, and I never formed a more decided opinion on any point than on this.

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* After counsel had been heard for the pursuers, on a day set apart for the purpose, the defender intimated that if the Court were satisfied that the legitimacy of the boy was not proved, he had no wish to be heard on the case, especially as printed copies of the speeches made in the Outer House had been laid before the Judges.

Lord Gillies.—I concur. I think the marriage proved, and the child's legitimacy not proved. The great improbability of a gestation for a period of ten months, would not be enough, per se, to satisfy mo that he was not the child of Innes; but, taking all the circumstances together, there is an entire failure to establish that this child was the son of Innes at all.

Lord President.—I concur in all respects with your Lordships. It appears that the pursuer, Janet Rogers, had herself stated Morrison to be the father of the child; and that Innes, so far from believing it to be his, had said it was begot while he was in France. As to the rule, pater est quem nuptiæ demonstrant, it applies only to children born in wedlock, and it would be highly dangerous to extend the rule further.

Lord Mackenzie.—I ana of the same opinion with the rest of the Court. In regard to the legitimacy of the child, the proof to be adduced by him must be of a very different sort from a mere semiplena probatio, such as suffices in an action of aliment. His object here is to cut out the defender from a heritable estate, which is lawfully his property, unless the child, by full and complete proof, establishes his right to it as the lawful son of Innes. Now, the first question is, what proof is there of his being the son of Innes at all? He can only be so, on the supposition of a gestation of about ten calendar months having occurred in his case, and it is only on that footing that he has pleaded. But although such gestation cannot be said to be an impossible; occurrence, for medical men are at variance as to its possibility, yet it is certain that its occurrence is improbable to the very last degree. In short, there is an improbability so extreme, that it would require an overwhelming weight of counter presumptions to overcome it. Without this, there is no case at all. And where are such presumptions to be found? An attempt is made to dispense with them by setting up a plea of a certain supposed inflexible legal presumption, to the effect that if the marriage between Innes and Rogers be proved, as I think it is, then this child must be presumed a child of the marriage. But, in stating this plea, it is forgotten that there was no marriage whatever in existence between Innes and Rogers, at the date of the child's conception, or birth, or for long after. If the inflexible legal presumption applied, it would render legitimate not only this child, but the two elder children of Rogers, whom she admits to have been begot by Morrison. This, however, cannot be maintained; and as little can she be allowed to determine how many of her children shall be made legitimate by the subsequent marriage, and how many not. In short, I see no evidence, on which any reliance can be placed, to show that Innes was the father of this boy, in the face of the strong probabilities which point the other way. I could understand, that, where a couple live together at bed and board, so that their intercourse with each other is certain, and where there is no other connexion kept up by the woman with any other man, and where the couple are thus in the relation of quasi man and wife to each other, and children are born; then, if marriage follows between them, all the children may he presumed to be sons of the man, and such marriage may legitimate them all. But this case differs in every particular from that now supposed. I do not think the proof of previous connexion between Innes and Rogers at all sufficient; and in so far as there was connexion, it is evident that she had yielded to him, not from any particular seduction on his part, but just as she would have yielded to any other person who asked her. Then she had a different man altogether, who stood in the relation of quasi husband to her. She claimed him as husband, and bore his name; and he was not a mere nominal husband, for he confessedly begot two children upon her, one of which was born after his own marriage. And how is it that we are to hold the next child,—this boy,—could not also be his? A person who was not Innes claimed him as his on one occasion, and though he seems to have been in liquor at the time, yet if he was Morrison, I apprehend it was one of those statements to which the rule, in vino Veritas, would not be misapplied. I think the probability is, that this boy was the son of Morrison; I think there is no Sound evidence—nothing on which a Court can rest—to satisfy me that he was the son of Innes; and I am decidedly of opinion that the defender must be assoilzied from the declarator at the instance of the boy.

In regard to the marriage, I conceive it to be on the whole sufficiently made out, though I am not without some misgivings in regard to it. There are awkward circumstances connected with it, both occurring at the time and afterwards, which have a strange appearance. But still there is enough established to leave me no alternative, and I hold that there was a valid marriage contracted between Innes and Rogers. *

The Court pronounced this interlocutor:—“The Lords having advised this cause, with the proof for both parties, and heard counsel in their own presence, Find, first, 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 the 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 William Innes, but find the defenders not entitled to expenses.”

Solicitors: J. Rutherford, W.S— P. Crooks, W.S.—Agents.

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* See next case.
SS 13 SS 1050 1835

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