Continuation not necessary in a summons of declarator of bastardy; but on a single summons it may be proved, that the defunct was a reputed bastard.
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Margaret Livingston, as donatrix to the bastardy of a mason in Falkirk, pursues a declarator of the bastardy, and restitution of the goods against Burns, who alleged, No process, because the libel, condescending upon the bastard's father and mother's names, and that the defunct was bastard, the same must he proved by witnesses, and so the summons must be continued, it being a known maxim that all summonses, not instantly verified, either by presumption, or probation by writ, but which must be proved by witnesses, or oath, must be continued. The pursuer answered, That albeit ex abundante, she had condescended on the bastard's father and mother, yet whoever were father and mother, that they were not married together is a negative, and proves itself, and needs no further probation, but is presumed, and puts the burden of probation upon the defender, that they were really married, at least, so held and reputed. 2dly, Albeit probation were necessary, that the defunct was either bastard, or so commonly reputed, the probation may proceed upon the first summons, in favorem fisci, and is so accustomed in declarators of bastardy, and in declarators of nonentry, wherein though the death of the vassal be libelled, yet the summons is not continued.
The Lords found, That the summons behoved to be proved, that the defunct was at least held and reputed bastard, and that bastardy was not presumed; but they sustained the declarator without continuation, and that the declarator might proceed upon the first summons. See Proof.
Fol. Dic. v. 2. p. 178. Stair, v. 1. p. 689.*** Gosford reports this case:
In a declarator of bastardy of James Livingston, son to Henry Livingston of of Castlecarry, it was alleged by Patrick Burn, son of the relict of the said James, who was called as a defender, No process, because the gift of bastardy did not condescend upon the woman's name who was mother to the said James, but only, that he was born a bastard; and the summons condescending upon the mother's name, did require probation that she was his mother, and was never married, and therefore, ought to have been continued conform to the daily pratique and form of process, requiring continuation of all summons where probation is necessary. It was replied, That declarators of bastardy were never in use to be continued, and the reason of the libel being a negative, proved itself, unless the defenders will offer to prove, that the said James's mother was lawful wife, at least, that her father was tentus and reputatus to be her husband.
The Lords having debated among themselves the reasons alleged hinc inde, and that it was of a general concern, being after many years, and the decease of the parents of the alleged bastards; that it was sufficient to libel that they were bastards, without necessity to prove; did find, by their interlocutor in favorem fisci, That the summons needed not to be continued, it not being in use heretofore; but they ordained the pursuer to prove his libel as to that part that the woman condescended on was mother to the said James, which they found sufficient, unless, that the defender would allege, that the said James's father was married to the said woman, or was tentus et reputatus to be so.
