Found in conformity to King's Advocate against Craw, No 541. p. 12637.
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James Sommerville as having a gift of bastardy of Janet Stains, upon which there is a debate marked December last, No 43. p. 2197; it was now further alleged for the defender, That the declarator is not relevantly libelled, that the defunct was held and reputed bastard in her life. It was answered, That being bastard results from this, that the father and mother were not married, which is a negative, and proves itself, unless the defender offered to prove that they were married. The defender replied, That the common stile of all declarators of bastardy is, that the defunct was reputed bastard in his life, which must have a positive probation. It is true, that if this were offered to be proved, and the defender did offer to prove lawful marriage, and to have cohabited as man and wife, the defence would be preferable; but there is no necessity to propone it, unless the pursuer offer to prove that the defunct was reputed bastard in her life, otherways upon the gift of bastardy the whole lieges might be put to prove the real or reputed marriage of any, or all of their predecessors, which were a great inconvenience; for, in all these cases, if a negative proving itself were sufficient to infer bastardy, it might reach not only to father, but grandfather and predecessors.
The Lords found, That the pursuer was obliged to prove that the defunct was held and reputed bastard in her life.
Fol. Dic. v. 2. p. 262. Stair, v. 2. p. 731.*** Fountainhall reports this case:
James Sommerville, Usher to the Exchequer, raises a declarator of bastardy of Isobel Stains. It was debated, 1mo, If it was necessary to call the nearest of kin to this process. He alleged they needed not, for ex parte patris she had none, and on the mother's side cognition is not reckoned. Yet the Lords ordained them to be called, they being condescended on. 2do, It was debated if he was obliged to prove that she was tensa, habita et repututa a bastard. Some thought not; for this allegeance that her father and mother were never married was a negative, and so needed not probation. Others contended, That the presumption stood for marriage and legitimacy; and, that one was lawfully begotten was more charitably presumed, than that he was a bastard; and that the burden of probation was in law devolved over, and incumbent on the donatar to the bastardy who asserted it, and not on them who proponed and founded upon the legality and hability of the person; for quod inesse debet inesse præsumitur; see 25th February 1642, Crawford, No 539. p. 12636.
Fountainhall, v. 1. p. 67.
*** A similar decision was pronounced, 15th June 1670, Livingstone against Burns, No 22. p. 11972, voce Process.
