themselves to be. It seems, however even here, to be improper to say that it makes marriage. The distinction is one rather of words than of substance, but I prefer to say that habit and repute affords by the law of all countries, evidence of marriage always strong, and in Scotland, unless met by counter evidence, generally conclusive. In this case, the evidence of habit and repute would have established conclusively the title of resp., if there had been no evidence of anything prior to 1793. This question is as to the adulterous origin of the connection. I cannot treat this as a mere question of law at all. In such a question it is necessary to look at all the circumstances, and consider whether they do or do not lead to the conclusion that the parties did contract marriage at some time after it was possible for them to marry. Now, here, as C. Ludlow died in Jan. 1734, there was nothing to prevent Campbell from contracting marriage with his widow after that date. I cannot say that the circumstance that they passed themselves off as man and wife when they were not so leads me to think there was even an improbability that they would marry when it was possible they could contract that relation with each other. He had the strongest motives for desiring to be married to her, and none operating in a contrary direction. The hypothesis is, that though he certainly desired that the world should suppose him to be her husband, he might not desire really to be so, that he might wish to be able at any time to get rid of the connection. To such a suggestion I can only say that it is one which may always be made in the case of persons who have passed their lives as husband and wife, but as to whom there is no direct evidence when and where the marriage was entered into-persons, in short, who, in the language of Scotch law, are said to be married persons only by habit and repute, and it is a suggestion to which it is very dangerous to listen after the death of those who, if it had been made in their lifetime, or the lifetime of either of them, might have been able to clear up all doubts. Even if, at an earlier stage, Campbell might have been desirous of getting released from the connection, it is difficult to suppose he could have had such a wish when she had given birth to many children, all born when they might have been what he certainly represented them to be-his legitimate children. How often do we find that when a man has been living with a woman as his mistress, under the impression that he will be glad to get rid of the connection at some future time, and to be at liberty to contract marriage with another, if the conduct of the woman has been irreproachable except in her connection with him, and he has lived long with her, and more especially if he has a family by her, his feelings become bound up with hers, and there is hardly any sacrifice he would not make to be able to convert that illicit into a lawful connection, to cause the woman to have been his wife from the first, and to remove from his offspring the taint of bastardy? In England this can't be done. In Scotland it may. I will not make a single observation on the policy of the Scotch marriage law, but that law being as it is, the presumption seems to me almost irresistible that during the twenty-two years after the death of C. Ludlow, during which Eliza Maria lived with Campbell as his wife, and bore him six children, and was received and treated as his wife by his family and friends, he must have desired to make her his wife, and his children legitimate, which he might have done at ar y time during that long period. As to the letter to the War Office, I think that the evidence preponderates that a ceremony did take place in 1781, though the parties must have known it was

invalid. But the question remains-whether its existence is sufficient to rebut what would have been if it had not existed, the irresistible presumption of marriage afforded by the rest of the evidence. I think this bigamous marriage ceremony did not prevent parties to it from afterwards becoming husband and wife if they were minded so to do. The letter is but hearsay, and can only be looked to as a declaration by a member of the family made in a matter of pedigree in connection with all the other evidence. Its effect is to show that she was not a member of the family, and consequently not a person whose declarations could be received. I have doubt whether, if objected to, it could have been received in evidence; but I mention the doubt only to prevent its reception being supposed to receive the sanction of the House. I deal with it as evidence in the cause. It was a declaration for a special object behind the back of all parties interested in disputing or sustaining it. Nothing could be more natural than that the woman who had passed as Campbell's wife should after his death wish it to be believed that her marriage preceded the time when she lived with him as his wife. The inference of marriage afforded by the evidence is not removed by the fact that, after the death of the husband, the widow, to effect a particular object, represented the marriage to have taken place at a different date and in a different manner from that which really gave it efficacy. The case of Cunningham was not a decision that a connection which in its origin was only that of man and woman, could not become the connection of husband and wife. Where the connection is in its origin illicit more evidence or different evidence may or may not be necessary to satisfy a court that marriage has been contracted. Still it is a matter which must always depend on the particular facts in proof, and I can't understand Lord Eldon as deciding more than that, in the Balbougie case, there were not such facts as would justify the inference.

Lords Westbury and Colonsay concurred.

Affirmed with costs.

LONGWORTH V. YELVERTON.-July 30.

(In the Court of Session, March 10 1865, 3 Macph. 645.) Proof-Reference to Bath-Consistorial Action-1 Wm. IV. c. 69. These actions of declarator of marriage and of putting to silence were conjoined, and, after proof, the L. O. (Ardmillan) found that the parties were not married. The First Division held they were married. On appeal the H. of L. reversed, and beld they were not married. Yelverton, Nov. 19, 1864, petitioned the Court to apply the judgment of the H. of L. Appt. thereafter, Nov. 28 1864, craved leave to give in a condescendence of res noviter, which the First Division, Dec. 10 1864, refused. Upon this, appt. tendered a reference of the whole cause to the oath of Yelverton. The Court refused to sustain the reference, and Miss Longworth appealed. Lord Chancellor (CHELMSFORD)—It must be taken as a settled rule in Scotland that there may be a reference to the oath of a party at any time between the closing of the record and the extracting of the decree, although every other mode of proof has been tried and has failed. If the reference to oath is made originally, there can be no subsequent trial, Stair IV. 44-2. But, however strange it may appear to those unaccustomed to the practice

of the Scotch Courts, that a party having attempted to prove a case by testimony, and having failed, should be allowed almost at the last moment, even after final judgment, to resort to a new method of proceeding, though he had his choice from the first--yet such being the law we are bound not to question but to administer it. The reason why this reference to oath is allowed at so late a stage of the proceeding seems to be that until judgment is extracted the cause is still in Court. This being so, there can be no difference in principle between the case where a judgment is final in the Scotch Courts because not appealed from and a final judgment of this House which equally requires extract before execution can issue. He therefore thought the reference was competent in respect of the time at which the minute was tendered. With respect to the competency of a reference to oath in a declarator of marriage, he was of opinion that, whatever may have been the practice formerly, since 11 G. IV. & 1 W. IV., c. 69, such a proceeding was incompetent. Sec. 33 enacts that all consistorial actions shall be competent only before the Court of Session; and by sec. 36 no judg ment in favour of the pursuer shall be pronounced in any consistorial action enumerated until the grounds of action shall be substantiated by sufficient evidence. In Muirhead v. Muirhead (28 May 1846, 8 D. 786) which was an action of separation a mensa et thoro, brought by a wife, the husband admitted on record conduct which in the opinion of the L. O. was sufficient to justify decree. Upon the case coming before the Court, Lord Mackenzie said, and the Court concurred, "I read the words 'sufficient evidence' as meaning sufficient evidence independent of the admissions of the party. I think the Act meant entirely to exclude admissions and require extrinsic evidence." Now, it was clear that an admission upon record can never be regarded as evidence; but the Court could not have meant to say that, if proof had been led in the case, admissions proved to have been made by the husband that he had ill-used his wife, would not have been evidence, and might not have been sufficient evidence. But an oath upon reference was not evidence at all. He then read from the opinion of Lord Colonsay in the Court of Session on this point. As a party, by referring to the oath of his adversary, renounces all other proof, and as the oath under reference is not evidence, a decree in a declarator of marriage, founded upon this mode of proceeding, would be a violation of the express words of the statute, as the grounds of the action would not have been substantiated by sufficient evidence. His Lordship then stated an opinion coinciding with that of the majority in the Court of Session upon the objection to the reference in respect that the interest of third parties would be prejudiced by a decree founded upon an oath affirmative of the reference. He then considered the objection to the reference that the answer to it in the affirmative-an answer which appt. must be taken by her reference to expect-necessarily involved an admission by respt. of criminality. If respt. were to admit the alleged marriage between himself and appt., he must confess that he has been guilty of bigamy, and this necessary effect of an affirmative answer plainly appears upon the record. Appt. said, in her printed case, there were cases in which a reference was refused, on the ground that a party should not be compelled to swear in suam turpitudinem. But all these cases were prior to 1 W. IV., c. 37, sec. 9 of which abolished infamy as a ground of incompetency in a witness. The 15 and 16 Vict., c. 27, further removes all impediments to the admissibility of the evidence of persons convicted of crime. In the present state of the law the

parties in the cases of Rogers v. Cooper, 2 S. 444; MacEachern v. Ewing, 3 S. 410; and Thomson v. Young, 7 S. 52, who were not obliged to swear in suam turpitudinem, would now be competent witnesses in similar cases, with the option of declining to answer any question that might criminate themselves. Such was the argument on this point, which left out of view one important consideration. It was true that the party in a reference to oath might refuse to answer, if thereby he would criminate himself, but then the effect was that he was taken to have confessed the facts referred; and exactly the same benefit resulted to the party making the reference as if he had obtained an affirmative answer. In the present case, therefore, respt., if he answer affirmatively, would have admitted himself to have been guilty of bigamy; or, if he had refused to answer, Mrs Forbes would be conclusively deprived of all rights acquired by her marriage with him. All the preceding objections led to the conclusion that the Court of Session was right in refusing to sustain the reference. A reference to oath was not the absolute right of a party, but it was in the equitable discretion of the Court to admit or to refuse Lord Moncrieff, in Pattinson v. Robertson, 9 D. 226. Therefore assuming the competency, the Court below was right in the exercise of its discretion in refusing to sustain the reference in this case.

Lord CRANWORTH would have come to the same conclusion independently of 1 Wm. IV., c. 69. Though the reference might be allowed as between two parties without leading to absurdity, yet the moment it came to involve the interests of a third party, it could not be the law of Scotland, or of any civilised country, that such a reference in a declarator of marriage was to be permitted. There were no cases which clearly decided that a reference involving the interests of third parties was ever allowed, and if there were, the House should hesitate before it sanctioned them. But if such cases did exist, then, even if the reference were competent, the Court in its discretion ought not to allow it.

Lord COLONSAY Concurred, reserving his opinion as to the Act.
Appeal dismissed.

CARLETON AND OTHERS V. THOMPSON AND OTHERS.-July 30.

(In the Court of Session, Feb. 11 1865, 3 Macph. 514).
Succession--Residue-Vesting.

Andrew Hunter died in 1811, and left a trust-deed dated 1808, whereby he said "The residue of my estate I direct and appoint to be vested in my trustee for behalf of my daughter, Mrs O'Reilly, in liferent, exclusive of the jus mariti of her husband and her children in fee, to be kept in trust by them till they in their discretion shall see proper to settle it in the most safe and secure manner on her and her children, and in the event of her decease without issue of her body," then to certain nieces named. Mrs O'Reilly, the natural daughter of Hunter, was married in 1808, and died 1861. Some of her children were born before testator's death, though she had no children at the date of the deed. The question now arose whether her children had a vested interest from the date of the death of the testator, or only from the death of the liferentix. The L. O. (Jerviswoode) and the First Division held that a share of the residue vested in each child born after the testator's death at its birth. The two children born before the testator's death, the others having all died before the liferentix, brought this appeal. The judgment of the Court of Session was affirmed with costs.

THE

JOURNAL OF JURISPRUDENCE.

THE DEBTS RECOVERY ACT.

THIS is a very remarkable production. When the Conservatives were last in power, the Lord Advocate of that day left the stamp of a master mind on the legislation of the country, and secured for his party a reputation as Law Reformers, which the present measure will do much to overthrow. We hear it condemned on every side. Every person who is practically conversant with the business of the Sheriff Court-Sheriffs, Sheriff-substitutes, Sheriff Clerks, and the legal profession generally-seem to be at a loss to understand how such a measure ever received the sanction of the Legislature; and although the trading classes may fondly suppose that they have now got a form of process which will put an end to the evils of which they have for some years complained, we can assure them that they have been completely taken in, and that the Recovery of Debts Act will make things worse instead of better. A few months will show in actual practice the truth of what we say. In the meantime, we beg the profession, out of respect for two honoured names, generously to refrain from calling it either the Patton Act or the Gordon Act. From what we know of these gentlemen we feel persuaded that they never could have had any connection with this Act, save under some sinister influence, of what nature we do not know, but with which probably they were powerless to contend. When the Lord Advocate comes to see, in its actual operation, the pernicious character of the measure, we are sure he will not be disposed to throw any obstacle in the way of its being speedily amended.

We do not desire to speak with the smallest disrespect of the agitation of which this piece of legislation may be regarded as the fruit. On the contrary we think there was much justice in the complaint, that whereas in England there now exists a summary form of process for the recovery of tradesmen's accounts up to £50, in Scotland one dare not sue for more than £25, without running the VOL. IX. NO. CXXX.-OCT. 1867.

2 M