No. 69. Feb. 6, 1912. Sheriff of ALLAN MACLACHLAN, Pursuer (Respondent).—Malcolm. A judgment of the Sheriff, imposing a sentence of fine or imprisonment 2D DIVISION. ALLAN MACLACHLAN presented a petition and complaint in the Sheriff Court at Glasgow against John W. Bruce & Company, accountants, Glasgow, and John Wilson Bruce, the only known partner of the firm, for breach of interdict. On 20th December 1911 the Sheriff-substitute (Thomson), after a proof, found that on 19th February 1909 the defenders were interdicted by decree pronounced in the Sheriff Court of Lanarkshire from intromitting with certain property, and that the defender, John Wilson Bruce, had committed a breach of the interdict. He imposed a fine of £5 and, failing payment thereof within fourteen days, sentenced the defender to twenty days' imprisonment. The defender, J. W. Bruce, appealed to the Court of Session. When the case was called in the Single Bills of the Second Division on 18th January 1912, counsel for the respondent objected to the competency of the appeal, and argued ;-The Court whose authority had been violated was the proper forum to decide the complaint for contempt.1 This was a summary process of a quasicriminal nature, and there was no appeal from the Sheriff's decision. If, however, an appeal were competent, it should be taken to the High Court and not to the Court of Session. In none of the cases referred to by the appellant had this objection to the competency been brought to the notice of the Court. Argued for the appellant;-The competency of the appeal was settled by authority. An appeal from a judgment of the Court of Session, imposing a penalty for breach of an interdict pronounced by that Court, had been entertained by the House of Lords and no doubt had been suggested as to its competency,2 and similar appeals had frequently been taken from the Sheriff Court to the Court of Session. A petition and complaint for breach of interdict was not a criminal proceeding as suggested by the respondent. At advising on 6th February 1912, the opinion of the Court (consisting of the Lord Justice-Clerk, Lord Dundas, and Lord Salvesen) was delivered by the LORD JUSTICE CLERK.-This is an appeal by the defender in a petition presented in the Sheriff Court of Lanarkshire at Glasgow to have him fined £50, or such other sum as the Court might think fit, for breach of interdict; or, failing payment of the fine, to have him committed to prison. The Sheriff-substitute imposed a fine of £5, and, failing payment thereof 1 Monro v. Robertson's Trustees, (1834) 12 S. 788. 2 Caledonian Railway Co. v. Hamilton, (1850) 7 Bell's App. 272. 3 Henderson v. Maclellan, (1874) 1 R. 920; Stark's Trustees v. Duncan, (1906) 8 F. 429; Wallace, Sheriff Court Practice, pp. 453 to 455. 4 Christie Miller v. Bain, (1879) 6 R. 1215. within fourteen days, a sentence of twenty days' imprisonment. An objec- Feb. 6, 1912. tion to the competency of the appeal was taken for the pursuer in Single Maclachlan v. Bills, to the effect that, as a petition for breach of interdict is of a quasi- Bruce. criminal nature, an appeal (if there be one) must lie to the Court of Justiciary, and not to the Court of Session. It is true that, in the words of Lord President Inglis (Christie Miller v. Bain 1), "in one sense a petition for breach of interdict is a criminal proceeding. But one cannot help seeing that in many ways it is a civil proceeding. Civil interests are often largely concerned, and therefore it is often called a quasi-criminal proceeding." But the procedure in the Sheriff Court seems to be by way of petition in ordinary form, and there are numerous instances in the books of appeals taken to the Court of Session in such cases-e.g., Henderson, Brown,3 and Stark's Trustees. In the last of these cases some objections of a special kind were stated to the competency of the appeal, and were repelled; but it seems to have been assumed that an appeal to the Court of Session was, in the general case, competent. An instance of an appeal in such a matter from this Court to the House of Lords is to be found in Caledonian Railway Company v. Hamilton.5 The objection to the competency of this appeal seems, therefore, to be counter to a strong current of practice; and, as we were not informed of any contrary authority, we think it must be repelled. The cases referred to were all prior to the recent Sheriff Courts Act of 1907, but, as counsel did not suggest that any ground of objection to the competency of this appeal is to be found in its manifold provisions, we assume that none such exists. The Court pronounced an interlocutor finding the appeal competent, and appointing the cause to be put to the Summar Roll. Thereafter, on 10th February 1912, the appeal was heard on the merits, when the Court, on a consideration of the evidence, sustained the appeal, recalled the interlocutor of the Sheriff-substitute, and dismissed the petition. CARMICHAEL & MILLER, W.S.-STURROCK & STURROCK, S.S.C.-Agents. Lord Justice Clerk. JOHN ADAM LILLIE (James Deans's Judicial Factor), Pursuer and No. 70. Real Raiser, (Respondent).-M'Lennan, K.C.-Wilton. JAMES DEANS AND OTHERS, Claimants (Reclaimers).-Morison, K.C.- Feb. 6, 1912. T. G. Robertson. CHARLOTTE HOWARD BELL AND OTHERS, Claimants (Respondents).— M'Lennan, K.C.— Wilton. WILLIAM CARRICK ANDERSON AND OTHERS, Claimants (Respondents).— Mercer. Husband and Wife-Proof of marriage-Parent and Child-Presumption of legitimacy-Presumption where parents have not enjoyed status of married persons and the de quo quæritur is existence of marriage. In a competition for the distribution of an intestate estate certain of the claimants averred that a marriage had taken place in 1819 between Lieutenant D., an officer in a Highland regiment, and A., a milliner in 16 R. 1215, at p. 1216. 4 8 F. 429. 21 R. 920. 3 (1882) 9 R. 1183. 57 Bell's App. 272. Deans's Feb. 6, 1912. Deans's Factor v. Glasgow, and that their father was the legitimate offspring of that marriage. The existence of the marriage was denied by the other claimants. At a proof no direct evidence of the marriage, either documentary or otherwise, was adduced, nor was it shown that Lieutenant D. or any of his family had ever acknowledged the marriage, or made any allusion thereto, or that the parties had ever lived publicly together or enjoyed the status of married persons. The claimants relied mainly on hearsay evidence as to statements made by A. and her sisters, and on an unbroken tradition in A.'s family to the effect that Lieutenant D. and A. had been married persons. They maintained that, in the circumstances, there was a presumption of legitimacy which had not been displaced, and that the marriage was proved. Held that the marriage had not been proved, the Lord President observing that the presumption of legitimacy applied only where persons were living more or less in the married state, and did not apply where the de quo quæritur was whether there was a marriage or not. Proof-Hearsay-Admissibility-Statements made by deceased person at date when his evidence would not have been admissible. Opinion reserved by the Lord President as to the accuracy of the dicta of Lord Watson and Lord Blackburn in the Dysart Peerage case, (1881) 6 App. Cas. 489, to the effect that if a person at the time of an alleged marriage would not have been a competent witness to speak to the fact of the marriage, it was not possible afterwards to take his hearsay testimony, although, in the meantime, the law had been altered and he had become a competent witness. 1ST DIVISION. ON 24th August 1910 John Adam Lillie, judicial factor on the Lord Dewar. estate of the late James Deans, brought an action of multiplepoinding for exoneration and for the distribution of the estate under his administration. James Deans died in 1908, leaving a will in favour of a sister, who had predeceased him, and so in effect he died intestate; and his immediate next of kin not being known at the date of his death the pursuer was appointed judicial factor on his estate, which amounted in value to £7000. As the result of the pursuer's inquiries and advertisements several parties came forward representing themselves to be among the next heirs of the deceased, and, inter alia, a claim was lodged in the action for James Deans and others, the children of the late James Adam Deans, at one time Supervisor of Excise in Edinburgh. These claimants (hereinafter referred to as "the claimants") averred that they were directly descended from the grandfather of the deceased, William Deans, Adjutant of the North British Recruiting District at Glasgow, who died there in 1835. They averred that this William Deans had two sons, one of whom was the father of the deceased, and the other was Lieutenant James Deans, of His Majesty's 92nd Regiment of Foot. They averred that this Lieutenant Deans in or about the year 1819 married Hannah Andrews, who was employed as a straw-hat maker in Glasgow, and that the son of this alleged marriage, James Adam Deans, was the father of the claimants. The other claimants, whose kinship to the deceased was more distant than that claimed by James Deans and his brothers and sisters, denied that such a marriage had taken place. A proof was allowed and led. The following statement of the case sought to be made by the claimants James Deans and others, and of the character of the evidence adduced in support of it, is taken from Feb. 6, 1912. the opinion of the Lord Ordinary (Dewar): Deans's Deans. The substance of the claimants' case is this:-That when Lieu-Judicial tenant James Deans was a young officer on half pay, he came home Factor v. to reside with his father, Adjutant William Deans, in Glasgow. He there became acquainted with and ultimately married a strawhat maker called Hannah Andrews, one of the daughters of a stage-coach driver, who at one time resided at Langholm. The precise date of the marriage-which is alleged to have been regular-is not known, and there is no documentary evidence of it, but it is explained that this is probably because the records of St Andrew's Episcopal Church, Glasgow, where it is believed to have been celebrated, were destroyed by fire. No one is known to have been present at the marriage ceremony, but that, it is explained, is because it is believed to have been a secret marriage; that a child of the marriage (the said James Adam Deans) was born on 7th July 1820; that about that date Lieutenant James Deans was summoned back to his regiment, which was then stationed at the Isle of Wight; that he remained there for some time, and then went to Jamaica, where he died of yellow fever at Up Park Camp, on 2nd August 1825. Up to this time the marriage had not been disclosed to Adjutant Deans, but it is said that some time after Lieutenant Deans's death, Hannah Andrews and her sister Margaret called upon the Adjutant and divulged the secret; that he received them with much kindness, and thereafter paid for the child's education, and when he met him on the street gave him small sums of money. Then the claimants produced the baptismal record of St Andrew's Church, Glasgow, which shows that James Adam, son of Hannah and James Deens (sic), who is described as a soldier in the 92nd Regiment, was baptised on 13th September 1829. It is alleged that this entry has reference to the baptism of the pursuers' father, and that the form in which it is made shows that he was regarded by the officiating clergyman as legitimate; that Hannah Andrews continued to reside in Glasgow and to carry on her business as a straw-hat maker until the year 1831 or 1833, when she died; that her son was then removed by his maternal grandmother to Langholm, where he resided for two years, and then went to Linlithgow, where he carried on business as a shoemaker; that he married and had six of a family, five of whom (the claimants) are still alive; that he always regarded himself as the legitimate son of Lieutenant Deans; and that no doubt as to his legitimacy had ever been raised until the present time. "The claimants' case is largely founded on family tradition, and the main source of that tradition was James Adam Deans and his two aunts, Margaret and Jane Andrews, Hannah's sisters. These three parties who are all dead-had made statements, partly from their own knowledge and partly from what they had heard from others, regarding the reputed marriage to their children, and the children appeared in the witness-box and re-told the story." The nature of the evidence given by the witnesses is summarised in the opinion of the Lord President. On 10th March 1911 the Lord Ordinary found that the claimants James Deans and others had failed to prove their averments, and repelled their claim.* *" OPINION.-[After the passage quoted supra, and after analysing the evidence of the witnesses to family tradition, his Lordship continued]-In Feb. 6, 1912. Deans's James Deans and others reclaimed, and the case was heard before the First Division (consisting of the Lord President, Lord Johnston, and Lord Guthrie) on 28th, 29th, and 30th December 1911, and 27th January 1912. Argued for the reclaimers;-It was established as the result of the proof that James Adam Deans was the son of Lieutenant Deans and Hannah Andrews. It must further be held that he was their legiti mate son. The evidence showed an unbroken family tradition that Lieutenant Deans and Hannah Andrews were man and wife,1 that Adam Deans had throughout his life enjoyed the status of legitimacy, and that this status had never, up till now, been called in question. In these circumstances there was a presumption in favour of his legitimacy, the onus of displacing which was upon the other claimants, and had not been discharged by them. Argued for the respondents;-Neither paternity nor legitimacy addition to this, the claimants proved and found upon an extract from the [His Lordship then summarised the effect of the whole evidence as follows]-" "What is the proof of marriage offered? There is the certificate of baptism which proves that the Rev. Mr Routledge believed that there had been a marriage, and that he had some reason to believe it. There are the statements of Margaret and Jane Andrews that Hannah had been married, and I shall assume that they also had some reason for making them, and the statement, spoken to by one witness only, that Hannah and Lieutenant Deans had been to a ball. Then there are the facts that some of the records of St Andrew's Church were destroyed by fire (and, of course, the record of the marriage may have been lost in this way, although there is no evidence of that), and that Adjutant Deans's two sons were both baptised in that church, and that certain persons named Andrews and Deans had sittings there (see Minute of Admissions No. 149 of process); that Hannah and Margaret Andrews called upon the old Adjutant after the Lieutenant's death, and that he afterwards paid the boy's school fees, and occasionally gave him small sums of money when he met him on the street; that Hannah Andrews left a box of papers to her son James Adam; that they 1 Lauderdale Peerage case, (1885) 10 App. Cas. 692, at pp. 759, 760; Barnet v. Barnet, (1873) 10 S. L. R. 452; Macphersons v. Reid's Trustees, (1876) 4 R. 132; Wallace v. Ross, (1891) 19 R. 233. 2 Campbell v. Campbell, (1866) 4 Macph. 867, at p. 929 (1867) 5 Macph. (H. L.) 115, at p. 126; Smith v. Dick, (1869) 8 Macph. 31, at p. 33; Gifford v. Gifford, (1837) 15 S. 592, 12 Fac. (8vo) 563, and App. p. 49. 3 Stair, iii. 3, 42; Dickson on Evidence, 3rd ed., secs. 27 and 35; Hirpet v. Scott, (1618) M. 2197; King's Advocate v. Craw, (1669) M. 2748; Crawford v. Purcels, (1642) M. 12,636 ; Sommerville v. Stains, (1680) M. 12,638. |