If a title, by adjudication upon a trust-bond, be objected to upon the ground of bastardy, the pursuer must prove his legitimacy.
Click here to view a pdf copy of this documet : PDF Copy
Alexander Geddes and Sarah Fry were said to be married, and had an only son, Alexander Geddes junior. Before Sarah Fry's death, however, her alleged husband deserted her, and connected himself with Jean Bull, with whom he settled in Wales, called her his wife, and executed settlements in her favour, conveying to her some lands in Scotland, and his whole moveable property.
Alexander Geddes, after his father's death, being advised to challenge these deeds, as granted adulterii causa, executed a trust-bond in favour of Allan Clark; who, after deducing an adjudication on it, brought a reduction of the settlement.
In defence, it was stated by Jean Bull, That Geddes was a natural son, and consequently had no title to pursue.
Mr Geddes averred, That his father and mother had been received as husband and wife by their friends in Scotland; and produced, in evidence of the celebration of their marriage, a notorial extract of its entry from the register of marriages kept by the person who performed the ceremony, an Episcopal clergyman in Haddington, who is since dead.
The Lord Ordinary, “in respect the pursuer alleges, that he is the lawful son and heir of his father, and that the defender contests his legitimacy, finds the pursuer, before further precedure, must instruct his legitimacy.”
In a reclaiming petition, the pursuers
Pleaded; Mr Geddes has produced prima facie evidence of his legitimacy, which was more than he was bound to do; for as bastardy is not presumed, Stair, b. 3. tit. 3. § 43.; 19th February 1669, King's Advocate against Craw, No 541. p. 12367.; 6th January 1680, Sommerville, No 544. p. 12638.; the defender, before she is entitled to insist in her present defence, must establish it in a regular process of declarator. The onus probandi lies upon her, nor can she be relieved of it merely by making a vague allegation in this action, that the pursuer is not legitimate.
Observed on the Bench; The evidence of the marriage of the pursuer's parents, hithero produced, is not complete; and an adjudication upon a trust-bond being obtained, without any evidence of propinquity, the pursuer must support his title by proof.
The Court refused the petition.
Lord Ordinary, Dreghorn.For the Petitioners, Rolland.Clerk, Sinclair.
Fac. Col. No 205. p. 488.
