land Exchange Investment Co.), that modification was to be made, not relatively to the partial success of the pursuer, but according to the discretion of the Court, in the circumstances of the case. Action to recover payment of an account for engineering charges against the provisional committee of the Glasgow and Dundee Junction Railway.

The case went to trial on the following issues:— "It being admitted that, in the autumn of the year 1845, a company was constituted for the purpose of forming and completing a direct line of railway between Newport and a point on the Scottish Central Railway at or near to Stirling, to be called The Glasgow and Dundee Junction Railway,' of which the defenders were the provisional committee and secretary:-1. Whether the pursuer was employed as one of the engineers to survey a portion of the proposed line, and prepare the parliamentary pans and sections thereof, and thereafter to attend in London fr the purpose of giving his advice and assistance in furthering the application before parliament; and whether the defenders are indebted and resting-owing to the pursuer in the sum of 41194: 6:6, (being the balance of an account amounting to £1764: 6:6), after deducting a partial payment of £570, or any, and what part thereof, for his professional services and disbursements under said employment? Or: Whether the pursuer undertook, by himself, or along with another or others, to be responsible for, or to execute the survey of, the whole of the and proposed line of railway, or of a certain part thereof, and the preparation of the necessary plans and sections, in conformity with the standing orders of the House of Commons then in ve, and preparatory to a bill being brought into parliament to authorize the formation of the said railway; and whether, by the fault, negligence, or want of skill, of the pursuer, or of another or others, for whom he is responsible, the said plans and sections were, in whole or in part, disconform to the said standing orders; and whether the said plans and sections, and relative services and disbursements, charged for by the pursuer, were thereby rendered wholly or partly unavailing to the defenders?"

Verdict in favour of the pursuer for £316.

The Court found the pursuer entitled to expenses, subject to modification-ante, vol. xxi. p. 472. P The expenses, as originally charged, amounted to £616; and, as taxed, to £280.

The defender now pleaded, that, on the principle of the case of Smith v. West of Scotland Exchange Company, 4th Dec. 1847, the modification ought to be relatively to the success of the pursuer.

Lord Justice General.-I think there is a clear distinction between this case and that of Smith. Here we have given expenses subject to modification; and what we have now to decide is, what that modification shall be. Now, there were two ses, and one of them brought the pursuer's professional skill L'o question. If the company only meant to put in issue the ount of the pursuer's charges, why these four pleas in law, and this additional issue? In the whole circumstances of the Lase, and seeing that the Court are not to be influenced by the fact that a tender was made, I think we should modify the vxpenses to £200.

Lord Fullerton.-I agree this is not a case of quantum meruit, for there is a special plea of nil meruit; and, therefore, the rule of Smith's case does not apply.

Lord Jeffrey.-I am of the same opinion. The duty of the Court, in cases of this kind, is discretionary rather than strictly dicial; for the decision depends on the whole circumstances of the case, and we cannot proceed on a principle of regular arithmetical proportion. I rather think that this is a case in which the professional character of the pursuer was put in issue, and that he succeeded in rebutting the impeachment made. On the whole, therefore, I agree with your Lordship's proposal; the sum of £200 makes a substantial modification, and does not deprive the pursuer of a substantial consideration.

The Court modified the expenses to £200. Presiding Judge, Lord Robertson.-Act. Deas, Inglis; Inglis and Burns, W.S. Agents.-Alt. Dean of Faculty (M'Neill), Macfarlane; J. L. Hill, W.S. Agent.-Jury Clerk-(W.G.T.)

FIRST DIVISION.*

No. 64. DAVID WILLIAM BARCLAY, Esquire, and Mandatory, Pursuer, v. Sir ROBERT BARCLAY of Pierston, Bart. Defender.

Presumption Legitimacy-Foreign Marriage-In a reduction of the defender's service as heir-male and of line of his grandfather, the pursuer alleging that the defender had purposely withheld from the jury a certificate of the marriage of his grandfather and grandmother, (British Protestant subjects), as celebrated by an English clergyman at Ghent, in Flanders, in 1780, according to the liturgy of the Church of England, and that said marriage ceremony was the only one solemnized between them, and was null and void, as not celebrated within a British factory, or in the house of a British ambassador, and was null by the law of Flanders, us not solemnized according to the rites of the Romish Church, the only form then recognized by law :— -Circumstances in whichHeld by the Lord Ordinary (Ivory), and acquiesced in, that the grounds of challenge could not be sustained.

Sir Robert Barclay of Pierston, in the county of Ayr, Knight, was created a Baronet of Scotland and Nova Scotia, by diploma or patent under the great seal and the sign-manual of Charles the Second, bearing date at Whitehall, 22d October 1668, with remainder to the heirs-male of his body. The title descended, in terms of the patent, to Sir James Mantle Barclay, who died unmarried at Aix-la-Chapelle on 12th June 1793, in the house of his brother, Robert Barclay, Esq.

Mr. Robert Barclay, who, on his brother's death, succeeded to the title, was born on 13th September 1755, and married, in 1780, at Ghent, in Flanders, Elizabeth Tickell, daughter of John Tickell of Glassnevin, in the county of Dublin. By this lady, who was his equal in rank and position in society, Sir Robert (then Mr.) Barclay had three childrenviz. Robert Brydges Barclay, born in Ghent on 22d May 1782, who entered the army, and attained the rank of Major in the 71st regiment of foot-the father of the defender; Clotilda Elizabeth Barclay, born also at Ghent on 27th November 1783, who married the Baron D'Escury, of Holland; and John Barclay, born at Maestricht, in Holland, 10th March 1787, who died in infancy. Mrs. Barclay died at Maestricht on 13th March 1788, before her husband succeeded to the title. Sir Robert Barclay and Mr. and Miss Tickell were Protestants.

Sir Robert Barclay returned to England with his children about the year 1785. He married, as his second wife, in 1802, Harriet Durell, daughter of Colonel Durell, and the widow of the Swedish Baron de Cronstadt, and had by her two sons, the pursuer Mr. David William Barclay, and a younger brother. Sir Robert having been appointed to an official situation in the Mauritius, went out to that colony in 1814, and died there on 14th August 1839. Major Brydges Barclay, Sir Robert's eldest son by his first marriage, married, in 1809, Jane Williams, daughter of Arthur Williams, Esq. of Dungannon, county of Tyrone, Ireland; and of this marriage the defender, Sir Robert Barclay, is the eldest son. Major Brydges Barclay predeceased his father, having died on 10th August 1825. Clotilda Elizabeth, Baroness D'Escury, the late Sir Robert Barclay's daughter, died several years before her father.

* Omitted of its proper date-19th November 1849.

Soon after the death of Sir Robert Barclay was known in Britain, the defender sued out, by his attorneys in this country, a brieve from Chancery, directed to the Magistrates of Canongate, with the view of obtaining himself served nearest and lawful heir-male and of line in general, to Sir Robert Barclay, his grandfather. The present pursuer also at the same time took out a brieve to obtain himself served heir to the said Sir Robert Barclay in the same character.

In consequence of the competition, the defender presented a note of advocation of the brieves, under the 10th section of the act 1 and 2 Geo. IV. c. 38, which was passed, and the proceedings came to depend before Lord Ivory. After claims had been lodged by both parties, and various steps of procedure had been had in the process of competition of brieves, the Lord Ordinary, on the motion of both competitors, granted them a conjunct probation, and commission and diligence, for the examination of havers, recovery of documents, and making excerpts from public records as to all matters tending to establish their respective claims, and also for the examination of all witnesses resident in England, and elsewhere furth of Scotland.

After some procedure had taken place under the commission, the agent and mandatory of the pursuer wrote to the defender's agent, on 17th August 1840

"I am instructed, in behalf of Sir David William Barclay, not to proceed farther in this case."

The defender having examined various witnesses on commission in support of his case, the proof was reported to the Lord Ordinary; and, on 8th December, the following interlocutor was pronounced :

:

"The Lord Ordinary dismisses the brieve for David William Barclay; remits the brieve and claim for Sir Robert Barclay to the knowledge of an inquest, reserving all questions of expenses."

On 6th March 1841, the trial proceeded before Lord Ivory as judge, and a jury almost entirely composed of professional men. Evidence both documentary and parole, and the depositions of various witnesses and havers, having been adduced, the jury, after a short address from his Lordship, unanimously served and cognosced the defender "nearest and lawful heir-male and of line in general" to the deceased Sir Robert Barclay. The defender's service was retoured to Chancery.

On 17th January 1812, the present action of reduction was raised by Mr. David William Barclay, with a view of setting aside this service. A preliminary defence urged by the defender against the competency of the action, on the ground that the pursuer had held a competing brieve in the service, from which he had fallen, and had allowed it to be dismissed, was repelled by the Lord Ordinary and the Court-(See supra, vol. xv. p. 175).

On the merits, the pursuer pleaded four grounds of reduction of the service.

The first was the usual reason of style. To it the defender, Sir Robert Barclay, answered-The whole proceedings in the service were strictly regular and formal, and the evidence unimpeachable and complete.

In his second reason of reduction the pursuer averred, that the defender had knowingly and purposely withheld from the knowledge of the jury by whom he was served

heir, as above mentioned, a certificate* dated 30th November 1780, in the city of Ghent, Flanders, by the Hon. Robert Cholmondely, rector of Herting-Fordburgh, and St. Andrews, Hertford, in England, of an alleged marriage between the said deceased Sir Rober Barclay and Miss Elizabeth Tickell, daughter of Tickell, Esq., the pretended grandfather and grandmother of the defender; that the certificate bore tha the said Sir Robert Barclay and Elizabeth Tickell, both of the city of Ghent, were married there by the said Hon. Robert Cholmondely, in the presence and with the consent of the said Tickell, Esq., in the presence of eight witnesses, according to the rites of the liturgy of the Church of England, and was signed by the said Hon. Robert Cholmondely, the said Sir Robert Barclay the said Elizabeth Tickell, the said Tickell, Esq. and the eight witnesses.

The defender answered-It might be true that no such document as the alleged certificate was submitted to the jury; but the most undoubted and satisfactory evidence of the marriage of the defender's grandfather and grandmother, Sir Robert Barclay and Miss Tickell, was laid before them. In particular, duly authenticated records and attestations of the birth and baptism of Robert Brydges Barclay and Clotilda Elizabeth Barclay, the children of the said parties, who were both baptized on the same day, taken from the baptismal register of the parish church of St. Michael (south), in the city of Ghent, were produced.

These certificates, as translated and laid before the jury, were in these terms:

"The following is an extract from the baptismal register of the parish church of St. Michael (south), in the town of Ghent province of East Flanders:

"The 8th day of December 1783, I baptized, conditionally, Robert Brydges, son of the illustrious gentleman Robert Barclay and the illustrious lady Elizabeth Tickell, husband and wite natives of England, dwelling in this parish, born in the same place the 22d day of May of the year 1782. The witnesses were the Very Reverend and great Mr. John De Fitzgerald, canon d Saint Pharaildis, in Saint Nicholas, and Miss Grace de Fitz gerald, dwelling in the parish of Saint Nicholas, in name and place of the Most High Lord the Duke of Chandos, the Most High Lady the Duchess of Chandos, and the illustrious gentle man John Tickell, Esquire." (Signed) "T. DE CLERCQ, Pastor ROBERT BARCLAY. JN. DE FITZGERALD, Canon of Saint Pha raildis; and Grace De Fitzgerald.”

"The following is an extract from the baptismal register of the parish church of St. Michael (south), in the town of Ghent province of East Flanders:

"The 8th day of December 183, I baptized Clotilda Elizabet the daughter of the illustrious gentleman Robert Barclay an the illustrious lady Elizabeth Tickell, husband and wife, native of England, dwelling in this parish, born in the same place the 27th day of November of this year. The witnesses were the very eminent Master Peter Joseph Damman, licentiate of medi cine, and Miss Grace Fitzgerald, dwelling in the parishes Saint James and Nicholas, in name and place of the illustriou Master Richard Brinsley Sheridan, Esquire, the illustrion Mistress Clotilda Tickell, and Miss Elizabeth Anne Sheridan. (Signed) T. DE CLERCQ, Pastor. ROBERT BARCLAY. PE Jos. DAMMAN, Doctor of Medicine and Regius Professor of Mid wifery ; and GRACE DE FITZGERALD.”

The following addition was made on the margin the register :

"On the margin is found written-This child, and the follow

* This certificate was recovered from the custody of the guar dian of Madame D'Escury's children in Holland, and produce in process.

ing, born of parents not Catholics, I baptized after having asked and obtained leave from the Most High Lord our Bishop, who commanded to write 'testes' (witnesses) in the register, in place of 'susceptores' (sponsors), because the principals are also not Catholics. Which I attest this 8th day of December 1783." (Signed) "T. DE CLERCQ, Pastor."

In connection with these documents, the defender relied on the evidence of the Rev. Mr. Malcolm, a Roman Catholic clergyman, who was examined as a witness before the jury, He deponed

That the meaning of the words, sub conditione, being used, (in the baptismal certificates), is in case there is any doubt whether the child has been already or duly baptized. Depones, That the form here used is that appointed where the parents have been lasfully married, and that it is the duty of the priest to ascer tain this fact before administering the rite. Depones, That if there had been any doubt upon that point the form would have been different. Depones, That the priest is bound to take every means in his power to ascertain whether the parents were lawfully married or not."

In reference to this evidence, the defender pleaded, that the legitimacy of Robert Brydges Barclay, and his sister Clotilda Elizabeth, was clearly demonstrated. In the first place, it was a legitimate presumption that parties in the situation of life in which Mr. Barclay and Miss Tickell were, would take care that there should be no doubt about the legality of their marriage. In the second place, the names given to the children, and the circumstances attending the celebration of their baptisms, clearly proved that (in the opinion of the parents and the other respectable persons who were present) they were legitimate children. Conclusive evidence of their legitimacy was afforded by the circumstances under which the rite of baptism was administered by the Romish Church. It was in evidence, that as the parents were Protestants, their children could only be baptized by a license obtained from the Bishop of the diocese. This license, accordingly, the priest of the parish in which they resided, Monsieur Le Clercq, had applied for. He of all persons was the best qualified to ascertain whether Mr. and Mrs. Barclay were truly married persons; and it was in evidence that it was his duty to inquire as to this fact, in order that he might be able to report to the Bishop of the diocese the circumstances under which these parties requested that the rite of baptism might be administered. Accordingly, it was proved that he did make this inquiry, and, after the administration of the rite, gave the attestation, or rather judicial declaration, applicable to the case, that the children were legitimate-that they were the offspring of conjuges-the appropriate term for lawful spouses; and this attestation was duly recorded agreeably to the laws of the country.

In addition to the evidence of the marriage (of Sir Robert Barclay and Miss Tickell) just noticed, the defender pleaded, that the parole evidence submitted to the jury completely established the marriage of his grandfather and grandmother. The witnesses, many of them of the first respectability, proved that the parties were married in Flanders at the period above stated; that they were universally acknowledged and reputed as such by all their relations, and the society in which Sir Robert and his family moved on his return to England, which was of the very first order; and that their children were educated, received in every quarter, and treated as their lawful issue, (Robert being considered the heir of the family), and lived in family as such with Sir

SCOTTISH JURIST.

Robert and the lady whom he married for his second wife, and her children, the pursuer and a brother; and that it was not till after Sir Robert Barclay's death that it was alleged by the second wife and her family that the first marriage was unlawful, and the children illegitimate.

A great number of family papers, consisting of wills, settlements, correspondence, &c. &c., were also proved and produced in the service, the terms of the whole of which, the defender contended, were utterly irreconcileable with any other supposition but that Sir Robert Barclay and Elizabeth Tickell were lawfully married persons, and their children their legitimate offspring.

The third and fourth grounds of reduction libelled by the pursuer were in the following terms :—

Tertio, That the defender neither is, nor ever was, the nearest and lawful heir-male and of line in general to the said Sir Robert Barclay, his pretended grandfather, but that the pursuer David William Barclay, who is the eldest son of the marriage between the said deceased Sir Robert Barclay and Miss Durell, who were regularly married in 1802 in the chapel of the British factory at Hamburgh, by the Reverend Knipe is the nearest and lawful heir-male and of line in general to the said Sir Robert Barclay, his father, and is alone entitled to be served heir in that character: Quarto, More particularly, the foresaid pretended marriage, being the only marriage ever solemnized between the said deceased Sir Robert Barclay and Elizabeth Tickell, both then residing permanently in Ghent, where they continued to reside till the dissolution of the marriage by the death of Elizabeth Tickell in the year 1788, was illegal and void, as it was not celebrated within a British factory, or in the house of a British ambassador, according to the rites and regulations prescribed for the case of British residents abroad, and was null according to the law of Flanders, which, annulling all others, required for the validity of a marriage that there should be proclamation of banns, that the ceremony should be performed in public, and by a Roman Catholic clergyman only, and that there should be an entry in a public record, besides other formalities-none of which were observed in contracting the foresaid pretended marriage."

To this ground of reduction the defender answeredIt is denied that the pursuer is entitled to be served heir-male and of line to the late Sir Robert Barclay. The defender alone possesses that character, and he has been served and retoured accordingly. It is not admitted that the defender's grandfather and grandmother were domiciled at Ghent. Supposing a marriage ceremony of the nature of that alluded to by the pursuer was in reality solemnized at Ghent between the defender's grandfather and grandmother, by the Honourable and Reverend Mr. Cholmondely, according to the rites and liturgy of the Church of England, the defender does not admit that it was the only marriage ceremony performed between them, as the pursuer alleges, and which he must instruct before the argument at which he appears to point can be open to him. On the contrary, as has been already shown, those parties are proved by the most incontestible evidence to have been married persons while living in Ghent, recognized as such by the ecclesiastical authorities there, and known as such to individuals of the highest rank and respectability, both British subjects and the native inhabitants of that city. But, even were the pursuer to be successful in showing that the ceremony of marriage performed by the Honourable and Reverend Mr. Cholmondely was the only ceremony solemnized between Sir Robert Barclay and Miss Tickell, his prospects of success in the present action would not be improved. The question between the parties here involves the right to a territorial honour in Scotland, and must be discussed in the courts of this country, and determined by the rules of its law. No particular form or rite is required to make the marriage effectual. Now, according to the pursuer's own account of the matter, the fullest and most deliberate matrimonial consent passed between the parties. He states that they were married by a beneficed clergyman of the Church of England, according to the rites and liturgy of that church-a form, as every one knows, in which the parties respectively declare, in the most solemn and deliberate manner, their acceptance of each VOL. XXII.-No. IX.

1

other as "wedded husband and wife." Farther, as already mentioned, the defender's grandfather and grandmother lived for a series of years cohabiting as man and wife, and were universally held and reputed husband and wife, and their children lawful children. This alone, by the law of Scotland, would constitute them married persons.

To the pursuer's statement in his fourth reason of reduction, quoted above, that the law of Flanders prohibited all marriages within that country excepting those celebrated between Roman Catholics according to the strictest observance of the Romish ritual, the defender answered—

He is not aware, and he does not admit, that this is a correct statement of the law of that country at the period in question. But, assuming it to be so, nothing can be clearer than that the alleged marriage ceremony between the defender's grandfather and grandmother, performed by Mr. Cholmondely, would, by the law of Scotland, be in every respect valid and sufficient. That law has emphatically declared the Roman Catholic religion to be idolatry, (1 William and Mary. c. 5, § 24), and the Pope of Rome, its head, "to be that antichrist, that man of sin, and son of perdition, that exalteth himself against Christ, and all that is called God."-(Ibid. § 25). Consequently, in the eye of the law of Scotland, a marriage between Sir Robert Barclay and Miss Tickell, according to the alleged lex loci, would have been entirely opposed to our own policy and institutions; and a principle admitted in all similar discussions, both in Scotland and England, would at once come into operation, that, in such circumstances, a marriage between British subjects in such foreign countries, according to a form effectual in Britain, would be in all respects valid and sufficient. The later British statute, 4 Geo. IV. c. 91, regarding marriages of British subjects celebrated within British factories, and in certain other circumstances abroad, according to the forms used in this country, to which the pursuer appears to refer in this reason of reduction, does not "prescribe rites and regulations for the case of British subjects abroad," as he supposes, but was passed, as its preamble bears, for the purpose of "relieving the minds of all his Majesty's subjects from any doubts concerning the validity" of such marriages. All these marriages had acquired the fullest reputation of validity before this act was passed; and by § 2 it is expressly provided, that nothing in the statute shall confirm or impair, or in any way affect, the validity of marriages solemnized beyond seas, which may not have been celebrated in the places, forms, and manner mentioned in the statute.

The defender farther pleaded

That in every case the presumption of law is for marriage and the legitimacy of offspring-pro statu semper respondendum. The validity of the marriage of the late Sir Robert Barclay and Miss Tickell is not called in question, for a period of about sixty years, and not till after the death, not only of the parties themselves, but of all their children. Sir Robert Barclay and his wife lived and died in the fullest reputation of being married persons, and were universally acknowledged and received as husband and wife. Their children, the late Major Robert Brydges Barclay, the defender's father, and Clotilda Eliza beth, the Baroness D'Escury, also lived and died in the fullest reputation of legitimacy. It is not till the third generation that the marriage is attempted to be impeached. In England, the validity of a marriage cannot be called in question after the death of either of the parties; and although this salutary principle may not be observed with the same strictness in the law of this country, still our Courts have invariably acknowledged the policy, and enforced the application of the rule, that the status defunctorum post lapsum temporis is not to be impeached.

The Lord Ordinary granted commission and diligence to both parties, for the examination of witnesses and havers in Great Britain, Ireland, and on the continent.

Under this commission, the authenticity of the signature of the Rev. Mr. Cholmondely to the marriage certificate at Ghent was proved; that it was probable Mr. Cholmondely was in Ghent at the date of the document; and that no certificate of the marriage appeared in the parish registers of the city of Ghent.

A number of eminent Belgian counsel were examined

by both parties with reference to the validity of such marriage ceremony between British Protestants a that appearing to have been performed by Mr. Chol mondely at Ghent in 1780. They were nearly equally divided in opinion on the question.

The Lord Ordinary, after hearing counsel at grea length, ordered cases. The pleas of parties, so far not already stated, will be seen from the interlocuto and note of his Lordship:

"18th July 1848.-The Lord Ordinary having resumed con sideration of the cause, and advised the cases for the partie repels the reasons of reduction; assoilzies the defender staph citer; and decerns: Finds him entitled to expenses; allows a account thereof to be given in; and remits the same, whe lodged, to the auditor to tax and report.

Note.-The marriage which is here called in question tod place so far back as 1780. Its validity from that time down wards appears never to have been doubted. On the contrary not only during its subsistence, but after it was dissolved the wife's death, and even when a second marriage came to b contracted by the husband, as well as during the whole perio of that second marriage-which did not come to an end unt 1839, at the distance of about sixty years from the date of the first marriage, when the husband of both marriages died-it wa most distinctly and expressly recognized; and this everywhere and under every possible diversity of circumstance, and in every conceivable way and manner; by the parties themselves, by numerous body of relations on all sides, more especially by the second wife herself, and her family, by an extensive circle friends and acquaintances, and, generally, by the public ar public authorities; in short, by all and sundry interested and not interested, as well in the place where the marriage had a first taken place, as in the successive localities to which th parties and their issue happened afterwards to remove.

"It is proved, accordingly, that the children of the marriag were baptized as legitimate by the priest of the parish, whos duty it is established to have been previously to satisfy hims of the marriage of the parents; that the wife and one of children were buried in acknowledged possession of the lega status, the mortuary acts duly setting forth the fact; that whe a second marriage came thereafter to be gone into, it was the express footing that it was a second, and not a first, marriag that the pursuer's mother, accordingly, (the wife in this ma riage), received her husband as a widower, and his children by the first marriage as his lawful offspring; that she afterwards in like manner, considered and reared her own children as stand ing in the relation of a second and younger family; that sh continued throughout to treat the first family as legitimate more particularly introducing her step-daughter into the highe circles of society, getting her even presented at Court, &c.; that when this daughter afterwards married, it was still holding th same character, and possessing the same acknowledged st of legitimacy, the act of marriage and relative deeds in terma describing her as a lawful child; and, finally, so far as circum stances permitted, that precisely the same course of recognitio took place in regard to the defender's father, as being the onl surviving son of the first marriage, and, qua such, the old lawful son and heir-apparent of his father, and future natura representative of the family.

"Nor is it unimportant to keep in view, that two entire gend rations have passed away since the date of the marriage in ques tion, before any challenge of its validity was thought of. Now had such a challenge been brought in the lifetime of either of the married parties, who can say what additional sources of eviden might have been open to them? But first the wife died; the after the lapse of half a century more, her husband. Not onl so, but it is now nearly a quarter of a century since the defe der's father, then the only son of the marriage, departed. Ma dame d'Escury, the daughter of the marriage, is likewise gone So that it is not until the third generation, and in the person the defender, a grandchild of the marriage, that the status these parties, as well as of their whole families, (for not on had the defender's father other issue, besides the defender, bu Madame d'Escury also left a child), has at last been made th subject of attack.

"In the meanwhile, the defender has been duly served an retoured as his grandfather's lawful heir, before the proper tr bunal. The pursuer, who had at first maintained a competin

right, but afterwards withdrew from the field, allowed this proceeding, no doubt, to pass in absence; so that the verdict obtained by the defender may not have the same conclusive weight of effect against him which, otherwise, it might have had. Still, among all the other circumstances attending the case, it is a feature not perhaps unworthy of notice, that the pursuer has thus voluntarily placed himself in the situation of a party who must reduce a verdict duly pronounced in his adversary's favour. For, as at present, the defender stands possessed both of the status and the legal title. The onus lies exclusively upon the defender. And the question is, how far he has satisfied this onus. "Now, without entering upon the nice consideration, whether, ufter such a lapse of time, and under such extraordinary circumstances as have just been adverted to, it be competent for the pursuer, himself a child of the second family, and brought up In the unqualified and unbroken recognition of the legitimacy of the first, to bring at all under challenge the legality of his father's former marriage, and the status of legitimacy hitherto possessed in consequence, by so many of his descendants-the Lord Ordinary is at all events satisfied, that nothing short of the most clear and absolute proof, carrying a thorough and undoubting conviction into the mind of the Court, that any marriage contracted in 1780 must have been radically null, can possibly entitle the pursuer to succeed. It will not do to bring the matter merely into a position of difficulty or doubt. On the Contrary, the Lord Ordinary adopts implicitly the language of Dr. Lushington, (cited in the pleadings), as embodying the only sound principle of decision in questions of this class :-'In every case of doubt, I ought never to pronounce a marriage null and Fold Applying which principle to the case actually in hand, and still substantially adopting the learned Doctor's words, he most add, as a general conclusion on the facts, quite sufficient, in his mind, to support the judgment, that he does entertain (to express his opinion in the weakest terms) great doubt as to the marriage having been proved a nullity.'

"In the first place, the pursuer has, in the Lord Ordinary's opinion, fallen very far short of establishing, in anything like a Complete or conclusive manner, his primary and indispensable proposition-that, as between Protestant parties, the subjects of a Protestant country, the law prevailing in Ghent about the year 1780 absolutely excluded as a nullity any constitution of marriage but what was conducted in conformity with the decree of the Council of Trent. Taking the legal evidence in the most favourable view for him, it is, to say the least, divided and contradictory; and even, therefore, did the balance hang more equally than it does, this difference of opinion, entertained by the lawyers out of whose mouth the law is to be gathered, leaves the matter very much in dubio. But the Lord Ordinary is rather disposed to think that the balance of the legal evidence preponderates upon the whole matter towards the defender. And, most redly, in a practical view of the question, the conclusion arrived at by the witnesses on this side receives the strongest and most important real corroboration from a variety of concurrent considerations. 1st. It seems past all doubt that, in 1780, and for long prior, the marriage, even of Protestant natives, in various districts of Austrian Flanders, where the decree of the Council of Trent must have had otherwise precisely the same measure of authority that it had in Ghent, was recognized and given effect to as perfectly valid, though celebrated according to Protestant forms, and by a Protestant clergyman, and without the intervention, or even presence, of the Catholic curé pastor. 2d. If this was so, even in regard to native subjects, it is not to be conceived that a different practice, or a more igorous rule of conformity with the Catholic form of administration, should have been insisted in and enforced against Protestants, the subjects of another and a Protestant country. 3d. In any other way, indeed, it is difficult, if not impossible, to account for the universal and unbroken repute which is proved to have existed from the very first moment in favour of the marriage-known though the parties were to be Protestants; reven for their own bona fides and belief of the fact, inasmuch they could not have had the slightest ground to rest upon, had the decree of the Council of Trent been so notorious and absolute in its operation, as rendering all such marriages no better than nullities; or for the known status of the parties, as recognized, among others, even by the Catholic pastor, in baptizing their children as legitimate; which he could not have done without a flagrant breach of duty, if, as is now pretended, it was at that time an impossibility for the parties, as Protestants resident at Ghent, to have lawfully married at all—or, finally, for

the conduct of the Canon Fitzgerald (himself proved to have been a Catholic priest) in having countenanced the English ceremonial of marriage, as he did, by his presence, if that ceremonial was really a breach of the law of the Catholic country of which he was a member, and the marriage thereby attempted worthless in effect, and so a deception upon all concerned. 4th. Nor is it by any means to be overlooked, that the opinions of the witnesses who are adverse to the legality of the marriage are, as an exposition of the decree of the Council of Trent, most materially shaken by the testimony recently given by Bishop Wiseman and others in the case of the Duke of Sussex, with reference to the construction put upon that decree in Rome itself, and by the highest authorities connected with that supreme seat of all Catholicism.

"But, in the next place, if it must be held that Protestants could not, at the date in question, contract lawful marriage in Ghent, without substantially forswearing their own religion, and becoming, or seeming to become, Roman Catholics, then the Lord Ordinary is disposed to think, that the marriage must still, in such circumstances, from the moral necessity of the case, receive effect, and be acknowledged as lawful in this country, upon much the same principle that is applied in the case of marriages in deserto. In such a case, rather than that marriage between the subjects of this country should be altogether an impossibility, the Lord Ordinary would say, with Lord Stowell, that however much it must undoubtedly be received as a general rule, 'that a foreign marriage, valid according to the law of the place where celebrated, is good everywhere else,' yet that it has not been, 'e converso, established that marriages of British subjects, not good according to the general law of the place where celebrated, are universally, and under all possible circumstances, to be regarded as invalid' in this country: And, therefore, that although it is certainly to be advised that the safest course is always to be married according to the law of the country-for then no question can be stirred-still, if this cannot be done on account of Tegal or religious difficulties, the law of this country does not say that its subjects shall NOT marry abroad,' &c. &c. Or, as the same doctrine is expressed by Mr. Justice Storey-' Whenever there is a local necessity, from the absence of laws, or from the presence of prohibitions or obstructions in a foreign country, not binding upon other countries, or from peculiarities of religious opinion or conscientious scruples, &c., marriages will be allowed to be valid according to the law of the native, or of the fixed actual domicile.'

"In the last place, looking to all the important specialties that attend the present case-the honest belief and bona fides of the parties themselves-the universal recognition of both their status and that of their children-the length of time that has been allowed to elapse before a challenge brought-the still more unfavourable circumstance, that this challenge has been postponed until after the death, not only of the married parties themselves, but also of the first generation of their issue-the chances and accidents that are thus accumulated, whereby most important evidence, both actual and potential, must have been lost, or its depositaries passed from remembrance-the Lord Ordinary cannot help thinking, that scarcely anything short of proof positive that no other ceremonial of marriage but what appears on the face of the English clergyman's certificate either did, or could by possibility have taken place, would entitle the pursuer to succeed in this most peculiar case. Now, the presence of a Catholic dignitary as a witness to the English ceremonial points at least to the possibility of his having himself officiated, perhaps, at a duplicate ceremonial, more accordant to the ritual of his own church. It is notorious that double celebrations are not unfrequently resorted to, where interests so important and so lasting are dependent on the validity of the contracted marriage. And it is not altogether impossible, though certainly nowise probable, that the parties here may have been so far overpowered by the necessities of their position, as even to have reluctantly conformed to the formalities of a Catholic celebration. If so, the mere absence of the cure or pastor of the parish would clearly not be enough. For the Court would presume that the priest, Fitzgerald, was possessed of the necessary delegation. And after all, is it so very clear, that the English certificate is here per se sufficient to overturn all the other evidence in the case in favour of the legitimity of the marriage Had it not been produced, could it possibly have been held enough merely to prove that the parties (having been married in Ghent) were Protestants, and so not within the provisions of the foreign law, which was exclusively adapted to the marriage