Brodie v.

proved against the defender. The pursuer's character is very bad. That fact No. 23. does, on the one hand, detract considerably from her credibility, and renders corroboration necessary; but, on the other hand, her notoriously bad character Nov. 29, 1872. makes a visit to her at night by a married man a most suspicious fact, from Dyce. which scarcely any inference can be drawn except one unfavourable to the defender's moral propriety in the matter, and that is the inference contended for by the pursuer. The defender is a married man, and his visits to the pursuer, under the circumstances appearing on the proof, are only susceptible of one construction. No other reasonable explanation has been given. She was willing and ready for illicit intercourse, and he, knowing her character, visited her under suspicious circumstances, when she was sure to tempt, and he, excited by liquor, was most likely to yield. The testimony of the pursuer, if believed, is direct and clear, and I am compelled to come to the conclusion that, in the evidence of the other witnesses, there is sufficient corroboration of that testimony. Sheriff-substitute is of that opinion, and I think he gives good reasons for it. But the peculiarity of this case arises from the fact that the pursuer is a married woman. She is the wife of a James Brodie, a labourer, who has for about three years been working in or near Dundee. The pursuer, when examined as a witness in the filiation process, gives a very bad account of herself, for she says "I have been twice married. I have three illegitimate children by dif ferent men, one before I was married, and two after. I was married to my present husband (that is, James Brodie) four years ago. We never lived together except the first night."

The

Now, the question is, whether, by force of the maxim Pater est quem nuptiæ demonstrant, this child, born on 9th May 1871, is the legitimate son of James Brodie? If he is, then of course the pursuer, notwithstanding the evidence led in this cause, can have no claim against the defender. The maxim that the husband of the mother shall be presumed the father of the child is well settled and most reasonable. It is generally enough for a child alleging legitimacy to prove that he has been born during the marriage. The law will draw for him the inference of legitimacy. But it is now quite settled that the presumption of legitimacy thus created is not absolute. It may be rebutted. The proof of impossibility of access has long been held sufficient to destroy the presumption. At one time it was supposed that access could not be considered impossible unless the sea rolled between the two spouses. But that idea has now passed away. The great changes which have taken place, and the extraordinary increase in the facility of locomotion, have rendered the limitation of impossible access to the case of separation by the sea quite absurd. Crossing the sea is by no means impossible or difficult. It is now much easier to pass from Calais to Dover than to travel from Wick to Edinburgh, or from Kirkcudbright to Aberdeen. The admission of other evidence of impossibility of access than that of separation by the sea is now settled. There are many cases both in England and in Scotland, which were very judiciously presented to us by Mr Jameson, leaving no room to doubt on this point.

But it is necessary to go further than this, and I do not hesitate to do so. I think it is now recognised as sound law that the fact that access or intercourse was physically possible is not of itself sufficient to fix the status of legitimacy. The cases must be very rare indeed where access or intercourse is proved to have been physically impossible. I do not think that necessary. I do not think it reasonable to expect it. If the result of a careful consideration of all the facts and circumstances proved be that the Court is satisfied that there actually was not access or intercourse at or about the period when the child must have been procreated, and if the Court is also satisfied that another man had access and had intercourse with the wife at that time, then the presumption from the maxim Pater est quem nuptiæ demonstrant cannot receive effect in the face of such evidence. The presumption is rebutted by such evidence as is sufficient to satisfy the judicial mind that the husband could not be the father of the child. If there be clear evidence to the satisfaction of the Court that de facto a husband had not intercourse with his wife, and could not be the father of his wife's child, that child will be held illegitimate, though the utter impossibility of

K

No. 23.

Brodie v.

Dyce.

access be not established by the evidence. It may be physically possible, and yet in the circumstances, and according to the evidence, the possibility may be Nov. 29, 1872. excluded. Nothing less than complete satisfactory evidence can be sufficient; but if there be such evidence, then, on the face of it, the presumption cannot receive effect. There is plenty of authority for this in the more recent decisions, both in Scotland and in England. It is the opinion of Lord Curriehill, as Lord Ordinary in the case of Mackay v. Mackay, 24th February 1855, 17 D. 494, and that opinion is accepted as correct, and authoritatively approved by Lord President Colonsay, who expressly states it to be "sound law." Lord Ivory and Lord Deas expressed, in that case, the same opinion. I could, if it were necessary, quote other authorities to the same effect. It is enough to remind your Lordships of the opinion of Lord Stair, (Stair, iii. 3, 42), that "with us, absence is not necessarily beyond sea ;" and he adds,-" with us it will be sufficient that his (the husband's) absence be special and circumstantiate, that there remaineth no doubt that he could not have been present." Professor Bell (Prin. 1626) states the question as one of general evidence.

Taking this view of the weight and nature of the presumption, I think that in this particular case there is really no doubt that James Brodie, the husband of this pursuer, had, in point of fact, no intercourse with her at or about the time when this child must have been procreated. Her own statement on oath to that effect is quite distinct. If there were any opposing evidence on the subject, then her conduct and her bad character would greatly impair the force of her testimony. But there is no opposing evidence, and the proof subsequently led is entirely to the same effect as her own statement.

I think it would not be incompetent, if it had been necessary, to examine the husband as a witness in this matter. But the evidence which we already have appears to me sufficient, and it is desirable to avoid further expense. The hus band's time is accounted for, and the wife's time is accounted for, and, although the space which divided them did not exceed fifteen or sixteen miles, I think it is satisfactorily proved that they did not meet, and could not have had conjugal intercourse. The presumptions of fact in this case, as well as the testimony of the witnesses, and the uncontradicted oath of the wife herself, are all opposed to the presumption of law that the husband of the mother is father of the child I need not enter into the details of the evidence, which has satisfied me that the husband and wife had no intercourse at or about the time when the child, born on 9th May 1871, must have been procreated. I think that the time of both the husband and the wife during that period is as well accounted for as could be expected. I can see no reason why they should have desired to meet during that period or at all. They had parted long before that. There had been no reconciliation. There was no love. There was no interest. There was no motive-not even the stimulant of animal passion, for he was living with another woman, and she was abandoning herself to a loose life without scruple. That they did not wish to meet is very obvious. That they should have met is most improbable. That they did not meet is proved to my satisfaction by the evidence before us, and by the oath of the woman herself.

On the whole matter, I am of opinion that, without requiring the additional evidence which the testimony of the husband would furnish, we have enough in the proof before us to lead to the conclusion, on sound and safe grounds, that at and about the period when the pursuer's child must have been procreated, her husband, James Brodie, had no access to her, and no intercourse with her; and that the case of filiation must be disposed of without reference to James Brodie, and just as if the pursuer had been an unmarried woman.

So viewing the case, I concur in the opinion of the Sheriff-substitute that the pursuer has instructed sufficiently that the defender is the father of her child.

LORD DEAS.-The only doubt which I have had in this case has been whether it would not have been better to have examined the husband, and re-examined the wife. The wife was certainly asked about her marriage, on behalf of the defender, in the proof before the Sheriff-substitute, but she was not examined in the same way and for the same view with which she would be examined at this stage. I

Brodie v.

agree with Lord Ardmillan that there is no incompetency, according to our law, No. 23. in examining the husband or wife or both of them, reserving all questions of credibility. I am, however, also disposed to agree that in this case it is not Nov. 29, 1872. necessary that the proof as it stands is sufficient. I have come to this conclusion with the less reluctance because any judgment we now pronounce cannot prevent this child hereafter, if sufficient grounds should be shewn, from establishing his legitimacy.

The LORD PRESIDENT concurred.

THE COURT pronounced the following interlocutor:-"Recall all the interlocutors in the Sheriff-court subsequent to the interlocutor of 2d November 1871: Find that the defender (respondent) is the father of the pursuer's (appellant's) child, born on the 9th May 1871: Therefore decern against him in terms of the conclusions of the summons: Find the defender liable in expenses, both in this and the inferior Court; allow an account," &c.

MACRAE & FLETT, W.S.-JOHN GALLETLY, S.S.C.-Agents.

Dyce.

WILLIAM MURRAY, Pursuer.-Scott-Rhind.

JOHN ALLAN AND OTHERS, Defenders.-Shand-Maclean.

No. 24.

Nov. 29, 1872.

Process-Reparation - Wrongous apprehension-Limitation of time for Murray v. raising Action Statutes-Summary Procedure Act, 1864, 27 and 28 Vict. Allan. c. 53, sec. 35-Day Trespass Act, 2 and 3 Wm. IV. c. 68, sec. 11.—A complaint, instituted under the Summary Procedure Act, charged a contravention of the Day Trespass Act (which authorises a Justice of Peace to grant warrant for the apprehension of a person accused, before service of the complaint, "if he shall have reason to suspect from information upon oath that the party is likely to abscond"), and set forth that the two persons accused were found trespassing in search of game and had refused to give their names or addresses. On a deposition on oath by one witness to the truth of these statements a Justice of the Peace, before the complaint had been served, issued a warrant for the apprehension of the accused, and they were accordingly apprehended. Five months after one of the accused raised an action of damages for wrongous apprehension against the complainers' law agent and two officers of police, on the ground that the Justice was not entitled under the Day Trespass Act to issue the warrant of apprehension before the complaint was served, without having information on oath that the accused was likely to abscond. Held that, although the proceedings had been irregular, there had not been such a deviation from the statute as to deprive the defenders of the protection of sec. 35 of the Summary Procedure Act, which requires that all actions arising out of proceedings under it shall be brought within two months, and therefore that the action fell to be dismissed.

M.

A COMPLAINT by the trustees of the Earl of Fife, bearing to be under 1ST DIVISION. the Summary Procedure Act, 1864, charged William Murray and Gordon Lord Mure Smith, designed as "residing at Bridge of Dee, near Aberdeen," with a contravention of the Day Trespass Act, 2 and 3 Wm. IV. c. 68, in having, on 13th November 1871, unlawfully trespassed on the complainer's lands

in pursuit of game "The said William Murray and Gordon Smith having each, or one or other of them, been required by the gamekeeper forthwith to quit the land whereon they both, or each or one or other of them, were so trespassing, and also to tell their or each or one or other or both or their or his christian name or names, surname or surnames, and place or places of abode, the said William Murray and Gordon Smith did both, or each or one or other of them, after being so required, refuse to tell their or his real name or names, and place or places of abode, or did each, or one or other or both of them, give such a general description

No. 24. of his or their place or places of abode as was illusory for the purpose of discovery."

Nov. 29, 1872.

Murray v.
Allan.

This complaint having been, before service on the accused, presented to James Rust, Esquire, a Justice of Peace, a deposition was taken by the Justice on oath from one witness, who deponed "that what is contained in the foregoing complaint is true." Upon this the Justice granted warrant for the apprehension of the accused.

On 13th May 1872 William Murray raised an action against John Allan, solicitor, Banff, the law-agent for the complainers, George Mearns, superintendent of police at Banff, and William Knight, police constable there, for damages for wrongful apprehension on the said warrant. pursuer set forth his apprehension, and alleged, "The said warrant apprehension, and taking in custody were wrongful and illegal. By the 11th section of the Day Trespass Act, 2 and 3 William IV. c. 68, it is enacted, that where any person shall be charged on the oath of a credible witness before a Justice of the Peace with any offence punishable by virtue of the Act, The Justice may summon the party charged to appear before himself, or any one or two Justices of the Peace, as the case may require, at any time and place to be named in such summons, and if such party shall not appear accordingly, then (upon proof of the due service of the summons by delivering a copy thereof to the party, or by delivering such copy at the party's usual place of abode to some inmate thereat, and explaining the purport thereof to such inmate) the Justice or Justices may either proceed to hear and determine the case in the absence of the party, or may issue his or their warrant for apprehending and bringing such party before him or them as the case may be, or the Justice before whom the charge shall be made may, if he shall have reason to suspect, from information upon oath, that the party is likely to abscond, issue such warrant in the first instance, without any previous summons.' No summons preceded the aforesaid warrant or the aforesaid apprehension and taking into custody. The said apprehension was the first intimation which was received by the pursuer, or by any one on his behalf, that a charge of trespass was made against him ;" and "the pursuer believes and avers that the said warrant did not bear to proceed and did not proceed upon an information on oath that the pursuer was likely to abscond, or upon such an information on oath as is necessary, in terms of the above recited section, to entitle a Justice of the Peace to grant a warrant to apprehend without a previous summons. The pursuer had no intention of absconding or of refusing to appear in answer to a summons."

The pursuer pleaded;-(1) The apprehension of the pursuer and taking him in custody, as set forth in the condescendence, were wrongful and illegal, in respect that the warrant on which they took place was neither preceded by a summons nor by an information on oath that the pursuer was likely to abscond. (4) The 35th section of the Summary Procedure Act has no application to the present case, and it only applies to defenders ejusdem generis with those particularly enumerated in it. (5) The present action, in so far as it is founded on departure from the forms of procedure prescribed by the Day Trespass Act, is not one which is limited by that or any other statute.

The defenders pleaded;--(2) The damages claimed being in respect of alleged illegality of proceedings against the pursuer, and these proceedings having been taken under the Summary Procedure Act, 1864, and the pursuer having allowed more than two months to elapse without raising his action, the action is barred by the 35th section of the said Act.

Section 35 of the Summary Procedure Act is as follows:-"Every action or prosecution against any Sheriff, judge, or magistrate, or against

any clerk of Court, procurator-fiscal, or other person, on account of any- No. 24. thing done in any case instituted under this Act, shall be commenced within two months after the cause of action shall have arisen, unless a shorter period is fixed by the special Act, and not afterwards."

The Lord Ordinary pronounced this interlocutor:-"Finds that this action is not excluded by the 35th section of the Summary Procedure Act, 1864; and, before further answer, appoints the case to be put to the roll, with a view to the adjustment of issues for the trial of the cause."*

"NOTE.-The provisions of the 35th section of the Summary Procedure Act, which require that actions of the present description should be commenced within two months after the cause of action shall have arisen, appear to the Lord Ordinary to be confined to things done in cases 'instituted under the Act.' Now, the matters here complained of relate to a warrant of immediate apprehension, which, as the Lord Ordinary reads the Act, is not made competent in all cases, but is, by the 6th section, authorised only where apprehension is otherwise competent. The question, therefore, whether the proceedings complained of were instituted under the Act' must, it is thought, be disposed of by the provisions of the Day Trespass Act, 2 and 3 William IV. c. 68, on which the complaint is founded. By the 11th section of that Act Justices are authorised to grant warrant for immediate apprehension only when there is reason to suspect, from information upon oath, that the party is likely to abscond.' But in the present case it does not appear that any such information was laid before the Justice. The warrant does not itself bear that there was, neither does the oath upon which the warrant purports to proceed; and in the statement upon which the application is rested it is not alleged that there was any intention on the part of the pursuer to abscond, or any apprehension in that respect upon the part of the petitioners. In these circumstances it appears to the Lord Ordinary that the warrant for the apprehension of the pursuer was an incompetent proceeding, inasmuch as it was not granted in compliance with the requirements of the Day Trespass Act.

"In the somewhat analogous case of the apprehension of a party as in meditatione fuga, the application and relative deposition always bear that the creditor has reason to believe that the party means to leave the country; and where no such oath is taken the warrant cannot legally be granted-Robertson, 20th June 1812. Now, the Lord Ordinary sees no reason why, in a case of the present description, similar evidence that the provisions of the Day Trespass Act have been complied with should not be preserved in gremio of the warrant or in the proceedings. There is, however, not only no evidence ex facie of the proceedings in this case to the effect that the pursuer was likely to abscond; but it is not alleged on the part of the defenders in the record that any such information upon oath was laid before the Justice, while there is, on the other hand, a substantial allegation on the part of the pursuer that no such information upon oath was emitted upon the occasion. The Lord Ordinary has therefore come to the conclusion that the proceedings were not taken in compliance with the requirements of the Day Trespass Act, and were consequently not properly instituted in the sense of the 6th and 35th sections of the Summary Procedure Act.

"The question of relevancy cannot, in the view the Lord Ordinary takes of it, be at present satisfactorily disposed of, because, although there may be cases in which an officer who merely executes an ex facie legal warrant, which is afterwards found to be illegal, has been held not to be liable in damages; and an agent may not in all cases be liable in damages for putting in force a warrant illegally obtained, if done by express directions from his employer,-there is in the present case a distinct allegation that both agent and officer were aware of the irregularity of the proceedings, and acted maliciously in obtaining and executing the warrant; and assuming this to be proved, the Lord Ordinary is not prepared to hold that they are not responsible. He has therefore, before answer on the question of relevancy, appointed issues to be given in with a view to their adjustment."

Nov. 29, 1872.

Murray v.

Allan.