A donatar to a gift of bastardy was found obliged to condescend upon the mother's name, and to prove, that the defunct was habit and repute a bastard; quo casu they found, that the son must prove lawfully married, seeing negatives prove themselves.
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In a declarator pursued at Cunningham's instance, as donatar to a gift of bastardy of Montgomery's moveable estate, it being libelled, that he was the son of one Montgomery in Air, who was never lawfully married, it was alleged for the defender, That the donatar's right to the goods could not be declared until first the bastardy were proved. The Lords considering that this was of a general concernment, and that many years after the death of any person such gifts might be purchased, and it might be hard to prove a lawful marriage, they ordained, that the donatar should condescend on the mother's name of the alleged bastard, and that he was tentus and reputatus to be the son of such a person who was never lawfully married; which being done, they would sustain the declarator, unless the defender would offer to prove, that they were lawfully married, because the condescendence being made, and they not being married, being a negative, did prove itself, unless it were taken away by offering to prove the affirmative, that they were lawfully married.
