HAMS v. HAMS. CUNNING. Cunningham; so that both could not have been true. Paterson stated that the woman was not in the house at the time. It had CUNNING been argued that they might have been married before. But the effect of Cunningham's declaration and of the certificate was, that Murray was brought there to marry them, and that they were married there. And it appeared to him that the certificate was a piece of false and fabricated evidence. It was inconsistent with the interests of mankind-inconsistent with human security, to give any credit to such an instrument. Was it consistent with an alleged previous marriage, to have a marriage celebrated in 1770, the parties professing themselves to be then, "free and unmarried persons?" When the children were called "bastards" at school, and when instead of putting an end to all such imputations, by an open and unequivocal avowal of marriage, which might have been done in a minute, the parents contented themselves with sending messages to schoolmasters and school-mistresses, desiring them not to permit *their children to be called "bastards "-was it consistent with the conduct of the parties to suppose, that such a celebration of marriage took place in 1770? Or, if it had taken place, was it to be imagined that he should immediately have turned his back on her, and left her to be buried, not merely like one in the humblest situation in society, (for the poorest might be buried with the honours of fair character,) but to be tumbled into the grave as an unmarried woman, and one who had lived with him as his prostitute? [ *510 ] With respect to the case of Moir v. M'Innes, it was unnecessary for their Lordships to enter into it; but he must say in very respectful language, to those who entertained doubts as to the soundness and authority of the ultimate judgment in that case, that he was sure, from his knowledge of Lord Thurlow, that it never could have been decided till after infinite examination. Without saying whether the decision must be an authority in all cases that might come before that House, he knew that it must have been the fruit of most anxious and elaborate consideration. In the present case he did not think the facts and circumstances in proof relevant to infer marriage, and was therefore of opinion that the judgment ought to be reversed. LORD REDESDALE: In every country marriage was a contract, and every contract was a fact, to be proved by positive evidence of the fact, or by other evidence from which the fact might be presumed. By the law of Scotland, cohabitation with habit and repute was presumptive evidence of marriage, *as it was, more or less, in all countries; and so it had been declared in statute 1503, c. 77; which at the same time proved that the presumption might be refuted by contrary evidence. There must be such a cohabitation, as to induce persons to form the opinion that the parties were married. The cohabitation by itself was nothing at all here, as it was known to have been in its origin illicit. Where that was not known, the presumption was in favour of marriage, as it was not to be presumed that the parties would live in such a way unless they had formed that contract; but the evidence as to that presumption must rest on repute. In this case they alleged an actual celebration of marriage in two different instances; one in or before 1764, another in 1770. The noble and learned Lord who had just addressed their Lordships had clearly shown, that there was nothing to prove that the contract was formed on either of these occasions. The question then rested on the repute, and the parties must be reputed and holden to be married:-it must not be an opinion. of A., in contradiction to an opinion of B., and of C. in opposition to D.: it must be founded not on singular, but on general opinion. That species of repute which consisted in A., B. and C. thinking one way, D., E., F. another way, was no evidence on such a subject. It was true, the evidence here was extremely contradictory; but in such cases he had always understood, that they ought to look at what were the collateral circumstances in which there could be no error; and which were not liable to that impression, *one way or the other, to which witnesses were often subject. What then were the collateral circumstances here? There was first the legacy left by the grandfather, in a settlement in the handwriting of Cunningham the father, to one of the pursuers, there described as a "natural daughter." It had been said, that Cunningham, the father, was compelled so to write it, from CUNNING HAMS v. CUNNING HAMS. [ *511 ] [ *512 ] HAMS CUNNING- CUNNING apprehension of the grandfather's resentment. But after the grandfather's death, Cunningham, in a letter of Oct. 7, 1768, to Mr. S. Mitchelson, the factor for the trustees on the Balbougie estate, called her again "his natural daughter," when it was impossible that a dread of the grandfather's resentment could be the reason. In April, 1769, in writing to his brother, Dr. H. Cunningham, he called the pursuers his "natural daughters." What could be the object in holding out to his brother that they were not legitimate, if they had really been so? All this was in the lifetime of A. Hutcheson, and the words in the letter to Dr. Cunningham, "I scarce think I shall ever marry," were very material, as they demonstrated that he did not then consider himself as married. In the same year he took a note payable to A. Hutcheson, and signed by her with her initials, in which she was called his housekeeper; so that both declared that there was nothing like a marriage, on which repute could be founded. After A. Hutcheson's death, in a letter to Mitchelson in 1771, and in writings dated 1773 and 1775, and signed by him, A. Hutcheson was still described as his housekeeper. These were instruments with respect to which there could be no error, and which were not liable to that sort of affection of the mind which might lead witnesses into mistakes. In the surgeon's and shoemaker's bills, she was called Mrs. Hutcheson, which showed that they considered her merely as a housekeeper. These were the more valuable as evidence, from their not being framed with any idea of ever being brought into a court of justice. Such collateral circumstances operated in a great degree to decide on the character of the parol testimony, and, where they existed, were always the best means of ascertaining the truth on any subject whatever. [ *513 ] One thing decisively showed that there was a great deal of management in this business; he alluded particularly to the marriage lines (certificate) of 1770: Cunningham must have had these before him, and have known their contents, but he said he had mislaid them-and when were they produced? After the death of Shiells who had not been examined; Paterson the other witness having been examined, and having contradicted them. He could not account for Shiells not having been examined in any other way, except from a conviction that his evidence would have been in conformity to Paterson's. Under these circumstances, judging from what had, and what had not been produced, &c.; he was of opinion, that there was not here such evidence of repute, as was necessary to establish the fact of a marriage by presumption. Much stress had been laid on Cunningham's declaration to Mudie. But that was after the death of A. Hutcheson, and could form no contract; and besides, considering what he had declared respecting his marriage in 1770, in which he was so materially contradicted by Paterson, a declaration of his was not much to be relied on. Then the matter rested on the cohabitation and repute at Balbougie; and it appeared that some thought they were married, and some thought they were not. But the repute of marriage, as he had already stated, must be general; the conduct of the parties must be such as to make almost every one infer that they were married. Here the connexion had been long illicit, and it did not appear when it became lawful. There was not repute sufficient to form presumptive evidence of a marriage. That the facts and circumstances, &c. proven were IRELAND.-APPEAL FROM THE COURT OF EXCHEQUER. MEREDITHS v. SAUNDERS. (2 Dow, App. Cas. 514.) THE only material passage in this case, consisting of an observation upon the case of Mortlock v. Buller, will be found in a note to O'Rourke v. Percival. See 12 R. R. at p. 70. 1814. June 30. [ 514 ] 1814. June 17. July 28. ELDON, L.C. [519] [ *520 ] SCOTLAND. APPEAL FROM THE COURT OF SESSION. SHAND v. HENDERSON, CLERK AND MANAGER FOR (2 Dow, App. Cas. 519-525.) Where a particular jurisdiction is appointed under a Canal Act to determine all questions that may arise respecting things to be done in pursuance or in execution of the Act, if the canal proprietors do anything in a way not strictly within the powers of this Act, the individual conceiving himself aggrieved, in applying for redress, is not limited to the particular jurisdiction; but the complaint is to be entertained by the ordinary jurisdictions, and the wrong to be redressed in the same way as other wrongs. Where a party stood looking on while an act not strictly legal was done, having the means, but without taking the proper steps, to prevent it, the remedy by injunction, which he would otherwise have, was gone. But if the Company entered on an individual's land without authority, they were trespassers, and liable to an action, although the damages might be nominal. THIS was an action of declarator and damages by the appellant, Shand, advocate in Aberdeen, against the respondent, Henderson, as representing the Aberdeen Canal Navigation Company. The summons *stated, "that in 1798 the Company had, without any legal authority, seized upon, and appropriated to the use of the canal, part of his lands of Tanfield, severing and dividing the same in a very irregular and awkward manner;" and concluded to have that fact declared, and for damages. The illegality, as it was afterwards alleged, consisted in the Company having unwarrantably deviated from the line prescribed in the Act under which they were constituted; and in their not having in the earlier proceedings, in occupying the appellant's grounds, and settling the amount of his claims, strictly adhered to the previous steps required by the Act. After answers on the merits, the respondent stated, that a particular jurisdiction had been appointed by the Act to settle all differences that might arise between the Company and the individual proprietors, in the execution of the Act. After condescendance, the Lord Ordinary allowed a proof; but his inter |