Scottish Court of Session Decisions

By the settlement of Robert Tulloh of Burgie, who died on 17th June 1841, the trustees were directed to pay the free annual income of that estate to his eldest son Alexander, and in the event of Alexander dying leaving lawful heirs to dispone the estate to his lawful heir. In the event of his not leaving heirs of his body alive at his death, they were directed after certain destinations, which failed, to make over the estate to the truster's daughter Mrs Coles and her heirs and assignees whomsoever.

Alexander Tulloh died on 24th March 1890.

In November 1893 Mrs Coles raised an action of multiplepoinding and exoneration in name of the trustees under the settlement of Robert Tulloh in order to determine who was entitled to the estate of Burgie. She herself claimed the estate on the ground that Alexander Tulloh had died without leaving heirs of his body. Competing claims were lodged by Mrs Homer and Miss Ward, who claimed the estate as heirs-portioners of Alexander Tulloh, the former representing herself to be his daughter, and the latter the child of a deceased daughter Mrs Ward. Mrs Tulloh, the wife of Alexander Tulloh, put in a riding claim, claiming, as mother of Mrs Homer and grandmother of Miss Ward, to be ranked on the fund in medio to a reasonable alimentary provision. Mrs Coles

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admitted that Mrs Homer and Mrs Ward were the children of Mrs Tulloh, but denied that Mr Tulloh was their father.

Proof was led. Mrs Tulloh was not examined as a witness by either party. A great number of letters between Tulloh and his own agents (Messrs Hunter, Blair & Cowan, W.S.), and Mrs Tulloh and her husband's agents, extendingover the period during which Mrs Homer and Mrs Ward were born, were produced and admitted as evidence.

The result of the evidence was as follows—Mr and Mrs Alexander Tulloh were married on 11th August 1843. A son named Robert was born of the marriage on 29th July 1844. He died on 8th June 1881. In April 1848 the spouses executed a voluntary deed of separation a mensa et thoro. This contract was brought about by the resolution of the husband, the wife, as appeared from her letters, being unwilling to enter into it. It was never revoked, and Mrs Tulloh continued afterwards to draw aliment under it. The child of the marriage was left in charge of the wife, and the husband bound himself to pay to her £4 per month for her own maintenance and the maintenance of the child.

Mr Tulloh went to Australia in July 1848. He returned to London about 1st July 1849, where he lived till the summer of 1850, when he went to Kirkcaldy. He resided there till June 1851. He then removed to Rosefield, Annan, where he remained till June 1852. He then returned to Australia and remained there till 1857. He came back to Scotland in October of that year and resided at Rosefield till October 1859, when he removed to Dollar.

In 1849 Mrs Tulloh went to Ireland and resided there until about 1860, when she returned to Scotland and took up her residence in Edinburgh. While residing in Ireland she had three children—(1) Mrs Homer, born on 1st April 1851; (2) Mrs Ward, born on 1st July 1852; and (3) William Francis, born on 2nd December 1858, who died on 12th March 1871. They were all born in Ireland. The two elder were baptised as the children of Tulloh. The third was baptised as illegitimate.

The child Robert remained with Mrs Tulloh till June 1851. In that month he was removed by Mr Tulloh's agents, and thereafter resided with his father. In consequence of his removal Mrs Tulloh's allowance was reduced from £4 to £3 per month.

Mr Tulloh's letters showed that he had lost all regard for his wife, and had resolved not to live with her again, and was distressed with the fear that she might discover his place of residence. His letters and other evidence also showed that it was extremely improbable that he was in Ireland during the period of conception of either Mrs Homer or Mrs Ward. The evidence on this point is fully referred to in the opinion of Lord Rutherfurd Clark.

There was no evidence to show that Mrs Tulloh had ever communicated to her husband or to his agents the fact of the birth of her children, or that any increase of her allowance had ever been demanded on the ground of their being his children. After the child of the marriage, Robert, was removed in 1851, Mrs Tulloh often wrote to her husband's agents making inquiries for her son, but no allusion was made in these letters to her other children. No letter from the wife to the husband was produced; all communications appeared to have passed between the wife and the husband's agents.

In 1858 the existence of the children born to his wife in Ireland came to be known to Tulloh. He at once repudiated them and took proceedings to divorce his wife on the ground that she had committed adultery with persons in Ireland, and had given birth to three illegitimate children. The case is reported in 23 Dunlop 639. Mrs Tulloh lodged defences in which she denied the adultery. After some preliminary proceedings Mr Tulloh was allowed a proof of his averments. Mr (afterwards Lord) Gifford, who acted as counsel for Tulloh, advised his client as follows—“When the case comes to be judged of on evidence, it rather seems that the pursuer will be held bound, since he has not condescended on the paramour, to prove that the pursuer could not possibly be the father of the children—that is to say, we must satisfy the Court that during the whole period of conception the pursuer never was in Ireland and the defender never out of that country. If we lose sight of either of them for so much as a couple of days the Court may, and I fear will, take hold of this to say that we have failed to prove our case, because, abstractly, two or three days are enough to go to Ireland and back.” In consequence of this advice, of want of funds and of the difficulty of obtaining evidence, Mr Tulloh, while still denying that he was the father of the children, abandoned his action, which was consequently dismissed. In 1861 Tulloh himself was not a competent witness in such an action.

In the end of 1873 Mrs Tulloh raised an action of adherence and aliment against her husband, in which it was stated that Mrs Homer and Mrs Ward were his children. In his defences Mr Tulloh denied this and asserted that they were illegitimate, but the case was compromised. In 1876 Mrs Tulloh raised a similar action; again Tulloh in his defences denied that he was the father of the children and again the action was compromised.

Alexander Tulloh died on 24th March 1890. Since she had taken up her residence in Edinburgh in 1860 Mrs Tulloh had been in the habit of frequently visiting the office of his agents for the purpose of receiving her allowance. In September 1892 she made a statement to Mr Stewart, one of Messrs Hunter, Blair, & Cowan's clerks, to the effect that the children born to her in Ireland were illegitimate, and that a man called Barron, now dead, was the father of both Mrs Homer and Mrs Ward. In October 1892 she made a declaration before a justice of the peace to the effect that a man called Cronin, now dead, was the father of Mrs Homer, and that Barron was the father of Mrs Ward. Mrs Tulloh afterwards denied

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the statements in the declaration, and she claimed in the present action on the footing that Mrs Homer and Mrs Ward were both legitimate. The circumstances in which the statement to Stewart and the subsequent declaration were made are fully discussed in the Lord Ordinary's opinion.

The opinions of the Judges contain at greater length the parts of the evidence that seemed to them most conclusive.

On 20th December 1894 the Lord Ordinary ( Wellwood) pronounced the following interlocutor:—“Finds that the claimant Mrs Louisa Mary Tulloh or Homer and the late Mrs Eliza Jane Tulloh or Ward were born during the subsistence of the marriage between their mother Mrs Mary Durney or Tulloh and the late Alexander John Archibald Tulloh: Finds it not proved that they were not the lawful children of the said Alexander John Archibald Tulloh: Finds there is no evidence that the said Alexander John Archibald Tulloh was survived by any lawful descendants other than the claimant Mrs Homer and the claimant Edith Mary Ward, only daughter of the said Mrs Eliza Jane Tulloh or Ward: Therefore repels the claim of Mrs Frances Josephine Tulloh or Coles, and, for aught yet seen, sustains the claims of the said Mrs Homer and Edith Mary Ward: Finds it unnecessary to dispose of the claim of the said Mrs Mary Durney or Tulloh.

Opinion.—The pursuers and nominal raisers of this multiplepoinding are the trustees of the late Robert Tulloh of Burgie, who died on 17th June 1844. The real raiser is Mrs Frances Josephine Tulloh or Coles younger daughter of the said Robert Tulloh. The fund in medio is the income and produce of the said trust-estate of the said Robert Tulloh.

The purposes of Mr Robert Tulloh's trust-disposition and settlement, so far as material, were those—That after payment of debts, annuities, &c., the trustees should hold the free annual proceeds of the residue of the trust-estate in trust for his eldest son Alexander John Archibald Tulloh, being given power to pay over the free annual proceeds to him, or such part thereof as they should think fit, and in the event of his dying leaving heirs of his body, the trustees were directed thereupon to dispone and convey the said lands and estate, so far as not sold, to the heir entitled by the law of Scotland to Succeed him in his heritable estate. In case of his not leaving heirs of his body alive at his death, they were directed, after certain destinations, which have failed, to make over all his estate and effects to the present claimant Mrs Coles, and her heirs and assignees whomsoever.

Alexander Tulloh, who was only once married, viz., to the claimant Mrs Mary Durney or Tulloh, died 24th March 1890, survived by her. Their son Robert Tulloh, who died childless in 1881, predeceased him. During the subsistence of the marriage Mrs Tulloh gave birth to three other children, the claimant Mrs Louisa Mary Tulloh or Homer, the late Eliza Jane Tulloh or Ward, mother of the claimant Edith Mary Ward, and a son William Francis, who died in 1871 without issue. Both Mrs Homer and Mrs Ward were born, as I have said, in wedlock while the marriage between Alexander Tulloh and his wife subsisted, and therefore, if they were legitimate, as must be presumed unless the contrary is proved, the fund in medio falls to be divided between Mrs Homer and the claimant Edith Mary Ward.

But the claimant Mrs Coles, who is entitled to succeed to the whole estate if Alexander Tulloh left no legitimate heirs of his body, maintains that both Mrs Homer and Mrs Ward were illegitimate, and that Alexander Tulloh was not their father. She was allowed a proof of her averments upon that point, the burden necessarily resting upon her of displacing the presumption of legitimacy, and I have now to decide upon the import of that proof.

There is every reason to suppose that but for the declaration which Mrs Tulloh made in October 1892, and the verbal statement which she previously made to Mr Stewart on 12th September 1892, the present question would not have been raised. It is therefore of the last importance to ascertain whether any weight is to be given to that document and that statement. In my opinion, looking to the circumstances in which they were made and obtained, they are absolutely worthless in this inquiry. I must observe in passing that it is very doubtful whether the declaration is admissible in evidence. Nay, more, it may he doubtful whether the justice of the peace did not act illegally in taking it, looking to the terms of section 13 of the Act of 5 and 6 Will. IV., cap. 62, as it was not in a matter ‘the subject of judicial inquiry or anywise pending or at issue before the justice of the peace,’ nor authorised by statute, nor made in regard to any of the other matters therein mentioned. But taking it that an affidavit in such a matter is not wholly incompetent and inadmissible, the value to be attached to it was expressly reserved. As evidence for Mrs Coles, in my opinion, its value is nil; as against her, it may be appealed to as being in startling contrast in a vital particular to the statement made to Mr Stewart on 12th September 1892.

The declaration is dated the 5th day of October 1892. In it Mrs Tulloh circumstantially declares that her three children, Louisa (Mrs Homer), Eliza (the late Mrs Ward), and William Francis, who is now dead, were all illegitimate. She states that the father of Louisa was a certain Dr Cronin, Callan, County Kilkenny, and that the father of Eliza was Henry Barron, a clerk in a bank at Waterford, who lodged at Tramore. She declines to say who was the father of the boy William Francis.

For upwards of forty years before the date of this declaration Mrs Tulloh declares that all three children were legitimate, Alexander Tulloh being their father; not only declared it in private, but maintained it in three separate actions in this Court with such persistence and success that her husband abandoned his contention to the contrary, and died without attempting to prove it. In 1883 she emitted an affidavit

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in which incidentally she asserted on oath the legitimacy of her daughter Eliza (Mrs Ward); and so late as the beginning of 1892 she actually wrote to congratulate her son-in-law, Mr Ward, on the prospect of his daughter, her granddaughter, succeeding to a share of the present fund in medio as daughter of a legitimate child of Alexander Tulloh. Then came this unexpected declaration; and lastly, to complete the list, we find her putting in a riding claim in this process on the footing that her daughters were legitimate,

What faith is to be given to the word of a woman who has told such conflicting stories? Whichever story is true, her conduct is equally discreditable. Her declaration has not even the pitiful impressiveness of a deathbed confession. She has retracted it to the best of her ability. It is only charitable to suppose that age and trouble have impaired her faculties. Be this as it may, it is too apparent that now she cannot recognise, or at least does not regard, the line which separates truth from falsehood, and I am not surprised that neither party has ventured to put her in the box.

But further, the circumstances in which the declaration was taken from her were not satisfactory. From a very early date Robert Tulloh's trustees, and the old firm of Hunter, Blair, & Cowan, W.S., whose partners were throughout trustees, took up a position antagonistic to Mrs Tulloh in regard to the legitimacy of these children. At least the firm acted for her husband Alexander Tulloh when he brought an action of divorce against her in 1859; and they again acted for him when she raised actions of adherence and aliment against him in 1874 and 1876. The partners of the new firm of E. A. & F. Hunter & Company, who are all trustees, are not personally conversant with the older history of the trust. But they have in their service as cashier Mr Alexander Stewart, who has been in that office for fifty years, and is thoroughly conversant with the history of Alexander Tulloh and his wife. One would have thought this was the very last man to whom Mrs Tulloh would have made such a disclosure, and that he would have been the last to allow her to make it without independent advice and without warning. But according to Stewart's evidence she, on 12th September 1892, unsolicited by him, and without any questions being asked, but without any caution being given by him, made a confession as to the paternity of her children, some of which at feast was subsequently embodied in the declaration. I endeavoured to ascertain from Mr Stewart what led to this statement being made, but in vain. I asked him ‘(Q.) Had her statements anything to do with her getting her allowance? (A.) No, but she was very fond of talking.’ And again ‘(Q.) What was it led up to this extraordinary confession? (A.) She was always dropping into the office, and we were glad when she went out.’ Stewart's own account of her is that she is loquacious, importunate, fond of talking at large; and he adds that he had not much faith in her, and was afraid she might misrepresent what he said. And yet he did not hesitate to take this important declaration from her, and get her to swear to it ‘for what it was worth.’ Lastly, although the matter was not in the strict sense of the word litigious, the succession had opened, and it only required this statement immediately to give rise to this litigation in which the trustees, or at least the firm of which they are partners, as might have been expected, support and act for the claimant Mrs Coles, who impugns the legitimacy of Mrs Homer and Mrs Ward. In those circumstances I must say that in my opinion, looking to the previous attitude of the trustees and the firm, Mr Stewart, when Mrs Tulloh began to make her declaration, should at once have refused to listen to her until her own agent was present. Instead of which, without one word of warning, he drew her story from her—whether by silence or questioning is immaterial—and noted it in writing for future reference. He says that he did not ask her any questions. I have difficulty in accepting this. It is true that after she made the statement the matter was mentioned to her agent, Mr Considine, who was taken into counsel before the declaration was extended and sworn to. But by that time it was too late. Mrs Tulloh had fully committed herself by making the statement to Mr Stewart, who had taken a note of it in writing. And I may here observe that Mrs Coles, who is propounding this declaration, was bound to put Mr Considine in the box in order to throw every light upon a very unusual and remarkable proceeding.

Lastly, no notice was given to those who were acting for Mrs Homer and Edith Ward of the fact that Mrs Tulloh had made a statement as to the paternity of her children until some days after the declaration was sworn to; and this, although Messrs Hunter were in correspondence with some of them at the time, and were actively trying to obtain information as to the grounds of their claims, the terms of certificates in their possession, and the memorial to counsel.

Coming now to the contents of the declaration, counsel for Mrs Coles maintained that the statements in the declaration were corroborated by independent evidence; in particular, that it was proved that the persons therein named were real persons who lived at or near the places where the children must have been begotten. That does not carry us very far. Falsehoods are often circumstantial to give them an appearance of truth. It is true that there is evidence that in the year 1850 a Dr Cronin lived at Callan, not far from Kilkenny, where Mrs Tulloh resided. But Dr Cronin is dead, and there is no further evidence about him. It is also true that in the years 1851–1852 there was a gentleman of the name of Henry Barron, who was clerk in a bank at Waterford from June 1851 till July 1863; and that Tramore, where Mrs Tulloh lived in 1851, was only six miles from Waterford. But there is no evidence

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that this man (who also is dead) ever knew Mrs Tulloh, and the witness Carrol says of him, ‘He was married and had a family of three daughters, all of whom are alive. He had a good character when I knew him, and I never heard anything against him.’ Thus, although it is true that Mrs Tulloh named as fathers of her children two real men who once existed, and might possibly have been their fathers, she might just as well have named any man then resident in Kilkenny or Tramore, because there is no evidence to connect them with Mrs Tulloh and her children except her statement in the declaration.

Fortunately there are the means of to some extent tracing the genesis of this declaration in the jottings taken by Mr Stewart, which form a very curious and suggestive record. Under date 12th September 1892 this entry appears in the jotting then made by Stewart:—‘T (that is Mrs Tulloh) admitted to me that the father of both the children was Henry Burn or Barn (this should be Barron), clerk in a bank at Waterford, near the Quay. He lodged at Tramore when the acquaintance commenced.’ And in his evidence Stewart repeats that statement. After making that statement as to the paternity of Louisa and Eliza, Mrs Tulloh must have remembered, or some one must have reminded her, that when the first child, Louisa, was begotten she was not living at Tramore, and that therefore Henry Barron could not have been the father of that child, and accordingly another name had to be substituted.

It will here he convenient to note one or two dates. Mrs Tulloh resided at Kilkenny from June 1849 to November 1850; at Carlow from November 1850 to October 1851; and at Tramore from October 1851 till September 1852, when she went to Waterford. Louisa was born at Car—low on 1st April 1851, and therefore must have been begotten in June, July, or August 1850, at which time Mrs Tulloh was living at Kilkenny. Eliza was born at Tramore on 1st July 1852, and therefore the time of conception must have been in September, October, or November 1851, at which time Mrs Tulloh was living either at Carlow or at Tramore.

Now, some time after stating to Stewart that Barron was the father of both Louisa and Eliza, Mrs Tulloh altered her statement, and finally declared, as we see from the declaration, that Dr Cronin, and not Barron, was the father of Louisa. I have not been furnished with direct evidence as to how and when the change was made. Mrs Coles cited Mr Considine, but did not put him in the box. I see, however, from the note of charges against the trustees in connection with the declaration, that a declaration was drawn on 30th September, and that a new declaration was drawn on 3rd October; and in the absence of any explanation, I presume that this was done to give effect to the change in Mrs Tulloh's story. Now this discrepancy between the deliberate statement made to Mr Stewart on 12th September, and the equally de liberate declaration made on 5th October, seems to me of grave significance. It cannot be explained away on the ground of mistake or forgetfulness. The matter was not one which, if true, a woman could have forgotten. But, fortunately, failure of memory as to details is a well-known characteristic of falsehood, and this slip raises such doubts as to the truth of the story as of itself to lead to the declaration being put aside.

It is needless to speculate as to the motives which led Mrs Tulloh to make the declaration. Mr Stewart says that she said it was her conscience made her confess; but when conscience remains peacefully asleep for forty years, and goes asleep again after a sudden fit of apparent wakefulness, one is not disposed to regard it as the true cause of such a confession. It is significant that for five or six months before this declaration was made Mrs Tulloh's allowance had been stopped by the trustees. She was thus in destitution. She had quarrelled with both of her daughters, and she was dissatisfied with the amount of the sum which her son-in—law Mr Ward was prepared to allow to be paid to her … It is therefore suggested with some reason that, actuated partly by spite and partly by necessity, her motive was to conciliate the trustees, who were the paymasters, and obtain from them money which she urgently required. It is said that she received a payment on 7th September before she made the declaration, the trustees having by that time obtained a guarantee from Ward. A note of payments by the trustees to Mrs Tulloh is in process. From that note it appears that from January 22nd to March 9th 1892, she received about £20. Between March 9th and September 7th there is no entry. On September 7th there is an entry of £20, the next entry being £1 paid on 12th October. From 7th September 1892 to 21st November 1893 she received in all about £124. There is no evidence as to the shape in which the payment of £20 was made; but I find that Mr Somerville, writing on behalf of Mrs Tulloh on 7th September 1892 to Mr Ward, says—‘With regard to the £40 of aliment which you have authorised Messrs Hunter & Company to pay on behalf of Miss Ward's proportion of the property, Mrs Tulloh is very grateful for the same, but as the sum in question is quite inadequate to meet the outstanding debts which Mrs Tulloh has been compelled to contract, and seeing after her call on Hunter & Company yesterday she received nothing from them, and who explained that they had promised to pay her landlord for arrears of rent, she has asked me to write to see if you could send her some ready cash until once matters are put upon a satisfactory footing.’ Probably the £20 went to pay rent; but it will be seen from the passage which I have quoted that Mrs Tulloh on 7th September was not satisfied, and urgently required ready money.

If to obtain money was not her motive in making the declaration, I can see no other, and none has been suggested, except

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he stings of conscience; but, as I have already said, she is now endeavouring to get what she can out of the fund in medio, on the footing that that declaration is a lie from beginning to end.

On the whole matter I have no hesitation in discarding the verbal statement and the declaration. They may be true or they may be false, or partly true and partly false, for the reasons which I have given. They are wholly unreliable, and the case must be considered as if they had never been made.

I do not think that there is any dispute as to the law on this question, apart from the admissibility of affidavits. A statement made by a husband or wife as to the legitimacy or illegitimacy of a child born stante matrimonio, if made in circumstances free of suspicion, and proved as part of the conduct of the reputed parent is not only competent but the best evidence that could be obtained. The case of Mackay v. Mackay, 17 D. 494 (1855), is a good illustration of a case where such declarations were admitted. But in that case Lord Deas said (page 506)—“If I had the slightest doubt of the truth of the statements attributed to the husband and wife—if I found anything startling, incredible, or mysterious, or unexplained in the evidence, I should reject the whole of it so far as adverse to the pursuer, and give effect to the legal presumption of legitimacy.” Accordingly in Walker v. Walker, 1857, 19 D. 290, the declaration of the mother was rejected, she being, when she made it, old and feeble and of deteriorated habits, and under the influence of a younger son. And in the case of Gardner v. Gardner, 1876, 3 R. 695, the statements of both husband and wife to the effect that the child was illegitimate were disregarded.

The case of Tennent v. Tennent, 17 R. 1205, is just the converse of this. There, until near the end of her life, the wife consistently admitted the illegitimacy of the child, just as here Mrs Tulloh until 1892 consistently maintained the legitimacy of her children. Towards the end of her life, Mrs Tennent for the first time began to talk of her son as legitimate; as here Mrs Tulloh after forty years suddenly did the reverse. The Court disregarded the later statements by Mrs Tennent as open to suspicion, preferring her earlier statements and conduct as evidencing the truth of the case.

Tennent's case is also valuable as showing the strength of the presumption, because there Mrs Tennent was proved to have committed adultery about the very time of conception, and the child was registered by her as the paramour's son, and he acknowledged and paid for it as his; and yet the case was anxiously argued and considered before it was held that the presumption was overcome. Both cases show that it would be dangerous to allow the legitimacy of a child to depend upon the caprice, the spite, or the necessity of a parent in her old age, in contradiction of her previous conduct and statements regarding it.

Mrs Tulloh's declaration cannot be regarded as a natural part of her conduct. It was made and obtained under exceptional circumstances, which, in my opinion, deprive it of all credit.

The incident of the declaration does not leave the case exactly where it stood before. It practically deprives the parties of the evidence, if it be competent, of probably the only living person who knows the truth of the matter. But the loss, such as it is, must fall upon the party upon whom lies the burden of proof, viz., Mrs Coles.

I shall now proceed to consider the evidence apart from Mrs Tulloh's declaration. If I do so somewhat briefly, it is not because I under-rate the importance of the evidence, such as it is, or the force of Mr Ure's comments upon it. It would be idle to say that the evidence does not raise doubts of the legitimacy of Mrs Homer and Mrs Ward. It does raise doubts—serious doubts; and if the question were a thing of yesterday the evidence might be sufficient to induce reasonable conviction. But I cannot so regard the case; all that is known now, and probably much more, was known to Alexander Tulloh's advisers upwards of thirty years ago, and yet the action at his instance against his wife was abandoned, because in the opinion of his skilled and able advisers the evidence was utterly insufficient to warrant decree of divorce. It was abandoned after the pursuer had successfully met the pleas to jurisdiction and relevancy, and when the way was cleared for a proof upon the merits.

It is urged for Mrs Coles that at that time, 1861, a stricter view was taken as to the burden of displacing the presumption pater est quem nuptiæ demonstrant, and that counsel and agents for the pursuer were alarmed by warnings from the Bench as to the strictness with which the evidence for the pursuer would be scrutinised. In particular, it is said they were alarmed by the remark of Lord Benholme:—“It seems to me that the pursuer must prove the locus of every moment of the defender's existence for ten years, or at least of every half-hour. As to the pursuer's own whereabouts during that period of time, it will be necessary that he should prove not only where he lived, but also how he journeyed or voyaged when he went from one place to another.”—23 D. 646. As to the latter observation, perhaps not much exception can be taken. As to the former, it will be seen that the Lord Justice-Clerk (Inglis) at once expressed his inability to concur.

Now, in the first place, no one could accuse Lord Gifford (Tulloh's senior counsel) when he was at the bar of being a timid counsel; he was a bold and fearless pleader, and the last man to give up a case which he had a chance of winning. He was also in large practice, and necessarily conversant with recent decisions. I think it is a mistake to say that in 1861 there had not been a relaxation as to the nature of evidence by which the presumption might be overcome. The case of Mackay v. Mackay, 17 D. 494, which was decided six years before, viz. 24th February 1855, marks a departure in this matter; and that case must have been

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within the knowledge of Lord Gifford, as it certainly was within the knowledge of Lord Justice-Clerk Inglis, who was senior counsel for the successful claimants. The rubric correctly states the principle upon which the case was decided—“Although the legal presumption pater est quem, nuptiæ demonstrant remains in full strength and effect, there is considerable relaxation as to the nature of the evidence by which that presumption may be overcome; and if there be such clear evidence as completely satisfies the tribunal which has to decide the question that de facto a husband is not the father of his wife's child, that child will be held to be illegitimate, although neither impotency nor the utter impossibility of access be established by that evidence.” In the subsequent case of Brodie v. Dyce, 11 Macph. 142, Lord Ardmillan refers to the case of Mackay as an authority for the law which he there lays down with much force and clearness (page 145)—“But it is necessary to go further than this, and I do not hesitate to do so. I think it is now recognised as sound law that the fact that access or intercourse was physically possible is not of itself sufficient to fix the status of legitimacy. The cases must be very rare, indeed, where access or intercourse is proved to have been physically impossible. I do not think that necessary. I do not think it reasonable to expect it. If the result of a careful consideration of all the facts and circumstances proved be that the Court was satisfied that there actually was not access or intercourse at or about the period when the child must have been procreated, and if the Court is also satisfied that another man had access and had intercourse with the wife at that time, then the presumption from the maxim pater est quem nuptiæ demonstrant cannot receive effect in the face of such evidence. The presumption is rebutted by such evidence as is sufficient to satisfy the judicial mind that the husband could not be the father of the child. If there be clear evidence to the satisfaction of the Court that de facto a husband had not intercourse with his wife, and could not be the father of his wife's child, that child will be held illegitimate, though the utter impossibility of access be not established by the evidence. It may be physically impossible, and yet in the circumstances, and according to the evidence, the possibility may be excluded. Nothing less than complete satisfactory evidence can be sufficient; but if there be such evidence, then in the face of it the presumption cannot receive effect. There is plenty of authority for this in the more recent decisions, both in Scotland and in England. It is the opinion of Lord Curriehill as Lord Ordinary in the case of Mackay v. Mackay, 24th February 1855, and that opinion is accepted as correct, and authoritatively approved by Lord President Colonsay, who expressly states it to be ‘sound law.’ Lord Ivory and Lord Deas expressed in that case the same opinion.”

We must therefore seek for some other reason for the abandonment of the action. As I have said, Alexander Tulloh's advisers had before them the whole of the evidence, and in particular the whole of the correspondence which is now before the Court. They had been making searching inquiries in Ireland, and they had even had Mrs Tulloh watched by detectives. It cannot be suggested that they were not fully alive to the significance of the evidence obtained, and in particular to the important bearing of the letters which passed between the trustees on the one hand and Mrs Tulloh on the other; and yet they advised their client to abandon the action because the evidence was ‘utterly insufficient.’

It will be observed that it would have been sufficient to entitle Alexander Tulloh to obtain decree of divorce if he could have shown that any one of the three children was illegitimate. In order to do that, he had simply to account for his residence and movements during a period of two or at most three months, during which the child must have been begotten. I take it that the action was abandoned simply because he was unable to do so. I can imagine no other reason. His advisers knew well with whom they had to deal. I gather from the correspondence that Alexander Tulloh was by no means a reliable or trustworthy man; that he was flighty, fond of wandering, and by no means a man of strict morality. His advisers knew that at the periods during which all of the children were begotten his residence was either in England or Scotland, and thus within a very short journey of the place where his wife was living. It is plain that the evidence of the persons with whom he resided cannot have been deemed sufficient to account for his time. That evidence has now been lost, and that is one serious objection to the question being reopened now.

Well, the action was abandoned, and Alexander Tulloh never thereafter made any attempt to obtain a divorce, although he was fairly challenged to do so in 1874, and again in 1876, by which time at least the law was sufficiently matured, and under a recent statute he might have given evidence for himself. In the end of 1873 Mrs Tulloh raised an action of adherence and aliment against him, in which it was stated (cond. 2) that the children Louisa and Eliza were his children. In the defences the defender denied this, and asserted they were illegitimate, but the case was compromised, the defender agreeing to pay £70 of aliment per annum. Again, in 1876 Mrs Tulloh raised another action, and Louisa Tulloh also raised an action against Alexander Tulloh on the footing that she was his lawful daughter. In the defences Alexander Tulloh denied the paternity, but these actions were also compromised; and thus the matter stood at the death of Alexander Tulloh on 24th March 1890.

It is in the light of this history that I have felt bound to consider the evidence laid before me, and while taken by itself it is formidable and raises serious doubts of the legitimacy of the children, I do not think that the burden has been discharged. The case for Mrs Coles is put thus—Alexander

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Tulloh and his wife separated in 1848, and it is not proved that they ever met again. She went to reside in Ireland. He went to Australia in 1849, and afterwards returned to this country. It is not proved that thereafter he was ever in Ireland. It is not proved that his wife was ever out of Ireland. By far the most telling evidence for Mrs Coles is to be found in the correspondence, which consists of letters passing between Alexander Tulloh and the trustees, and Mrs Tulloh and the trustees. To judge from that correspondence, Alexander Tulloh positively hated his wife, and was anxious to prevent her knowing where he was. She, on the other hand, was anxious to find out where he was. Again, Mrs Tulloh does not inform the trustees of the birth of the children, although she was always in want of money, and the children, if legitimate, would have been a good ground for her demanding an increase of her allowance. She mentions only one child, the son Robert, who was admittedly legitimate. On the other hand, the letters contain little that tells in favour of legitimacy. There is one letter, however, to which I was referred, written by Mr Blane, one of the trustees, 18th June 1850 (just at the time when Louisa was begotten), in which the words occur—‘If he and his wife live together again, as I have understood to be the case.’

But it is said for the other claimants that Tulloh and his wife had never really quarrelled; that they were both afraid of the trustees, on whom they were dependent, and who did not desire that they should come together again; and Mrs Tulloh formerly declared, and in 1883 said to the witness Samuel Ward, that her husband used to come over to Ireland and visit her. On this matter, while I feel the force of Mr Ure's comments on the letters, I also feel that if the case had been brought to trial in 1861, evidence not now available might have been forthcoming to remove the doubts which the letters undoubtedly create.

There is one point in favour of Mrs Coles which it is right to mention. A certificate is produced from the baptismal register from the St Nicholas Church, Francis Street, Dublin, of the baptism of the child William Francis Molloy, born 2nd December 1858, the father's name being James Molloy and the mother's Mary Durney. This entry looks suspiciously like the entry of the baptism of Mrs Tulloh's son William Francis, who was born just at that time. The entry has not been proved to apply to that child, and it is not proved that it was made on information supplied by Mrs Tulloh; but it is a significant fact. But even if it does apply to that child, it is by no means conclusive in regard to the present question. It does not follow that the children born in 1851 and 1852 were illegitimate because a child born in 1858 was. Again, Mrs Tulloh caused her children Louisa and Eliza to be registered as the children of her husband Alexander Tulloh. If they were not legitimate, it is difficult to see why she made any distinction between them and William Francis. As she registered the older children as legitimate, one would have expected that she would have done the same in the case of William Francis. She was presumably not less hardened. The whole matter is left in obscurity, but the certificate is a point against the legitimacy of the other children whatever its worth may be.

As I have indicated, I have been much influenced by the lapse of time, the abandonment of the action in 1861, and the acknowledgment implied in Alexander Tulloh's failure to raise another action that his case could not be proved. If the legitimacy of a child born in wedlock is to be challenged, in common fairness it should be challenged at once while the means exist of proving or disproving the charge. But when the question is now again raised after an interval of upwards of thirty years, things are no longer entire. Both children, Louisa and Eliza, married, and one of them is dead. If it cannot be said that their legitimacy was never impugned, it can be said that it was not successfully impugned; that the attack upon it by their reputed father was abandoned, and that, at least until after the dissolution of the marriage by his death, their mother maintained it.

Alexander Tulloh is dead; he can no longer be subjected to examination or cross-examination; and evidence as to his residences and movements at the critical periods has been lost.

From age or other causes, Mrs Tulloh's word cannot now be accepted on either side, and the persons whom, for the first time, she named in October 1892 as the fathers of her children Louisa and Eliza, viz., Dr Cronin and Mr Barron, are both dead and have no opportunity of clearing themselves or helping to maintain by their evidence the legitimacy of the children.

On the whole matter, although the case is by no means free from doubt, I think the safer course is to find that Mrs Coles has not overcome the presumption, and that therefore her claim falls to be repelled.”

The claimant Mrs Coles reclaimed, and argued—The presumption pater est quem nuptiæ demonstrant had been overcome. The Lord Ordinary would have decided against the legitimacy of the other claimants but for the fact of the proceedings for divorce having been abandoned in 1861. But it was plain that they were abandoned on account of the opinion expressed by Lord Gifford. That opinion contained a totally erroneous view of the law, viz., that Mr Tulloh would have to account for every day of his own and his wife's time during the period of conception. That was not the law. Even if the impossibility of access on the husband's part was not proved, still, if there was sufficient evidence to convince the Court that the husband was not in fact the father of the children in question, the child would be held to be illegitimate. In this case the evidence, on the ordinary principles of probability as applied to human conduct, was sufficient to show that the husband was

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not the father of either Mrs Homer or Mrs Ward. Even although Mrs Tulloh was alive and had not been examined as a witness, her letters could be used as evidence in the case. She was a party to the case and her letters had been admitted by the counsel in the case. Letters admitted as passing between the parties at the time were the best testimony of their views at that time. The testimony of both parents as expressed in their letters showed that these children were illegitimate—Stair, iii. 3, 42, and iv. 45, 20; Mackay v. Mackay, February 24, 1855, 17 D. 494; Brodie v. Dyce, November 29, 1872, 11 Macph. 142; Gardner v. Gardner, May 30, 1876, 3 R. 695; Montgomery v. Montgomery, January 21, 1881, 8 R. 403; Steedman v. Steedman, July 20, 1887, 14 R. 1066; Tennent v. Tennent, July 18, 1890, 17 R. 1205; Morris v. Davies, 1837, 5 Clark and Finelly, 163.

Argued for the claimants Mrs Homer, Mrs Ward, and Mrs Tulloh—Mrs Tulloh had not been called as a witness, therefore her declaration before a justice of peace was incompetent evidence and could not be looked at. It was admitted that the letters produced were written by her and passed between the parties, but they were incompetent as proof of the facts contained in them. Oral testimony was best, and Mrs Tulloh should have been called by the other side if they wished to found on her evidence. As regarded the merits of this case, the duty of the reclaimer was to make it clear to the Court that the husband was not the father of the child. There must be a certainty that he was not, either produced by proof of absence or by other evidence giving the same result. The question to be decided was, “Is the evidence so clear and conclusive as to satisfy the Court that another person and not the husband was the father of these children.” The Court must not be satisfied merely that all the facts proved pointed in one direction, but must be satisfied all the facts were before them. It was a most weighty ground for holding the children to be legitimate that the husband had abandoned the proceedings for adultery against his wife in 1861. Evidence was then obtainable which was now lost for ever, and that evidence would weigh with him in determining not to proceed with the case. The case of Mackay was not in point, as in that case both parents were dead, and the Court proceeded on declarations and statements made by the parents. In Tennent also both parents and paramour had treated the child as the paramour's. Brodie was an action of filiation, and Montgomery and Steedman were actions of divorce, and were therefore not in the same category as an action of bastardy. The evidence in this case was totally insufficient to upset the presumption, and the Lord Ordinary's judgment should be affirmed.

At advising—