This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Presumption in matters of pedigree - of legitimacy of child born in wedlock.
(z) Dorling v. Claydon, (1863) 1 H. & M. 402.
(a) See Co. Litt. 244 a.
(b) Parish of St. George v. St. Margaret, (1706) 1 Salk. 123; Taylor, 244 a.
(c) Bury v. Phillpot, (1834) 2 M. & K. 349; 3 L. J. N. S. Ch. 119; Morris v. Davies, (1837) 5 C. & F. 163; 1 Jur. 911; Hargrave v. H., (1846) 9 Beav. 555; 15 L. J. Ch. 280; R. v. The Inhabitants of Mansfield, (1841) 1 ,Q. B. 444; 10 L. J. N. S. Q. B. 188; Gordon v. G. and Granville Gordon, 1903, P. 141; 72 L. J. P. 33.
(d) Parish of St. George v. St. Margaret, sup.; Hetherington v. II., (1887) 12 P. D. 112; 56 L. J. P. D. & A. 78; consider Evans v. E., 1904, P. 274.
(e) Andrews v. A., 1924, P. 255.
The evidence and declarations of the husband and wife are inadmissible for the purpose of establishing the fact of non-intercourse after marriage (i); and the rule is the same whether the evidence is tendered in proceedings for divorce brought by one of the parties to the marriage, or in proceedings directly raising the question of a child's legitimacy (k). The evidence of the husband is admissible, however, to show that he did not have connexion with his wife before marriage (l).
Declaration of husband and wife, how far admissible.
(f) Lord Langdale in Margrave v. M., sup.; Aglesford Peerage, (1885) 11 A. C. 1. (g) Russell v. R., 1924, A. C. 687, 706.
(h) Morris v. Davies, (1837) 5 C. & F. 163; 1 Jur. 911; Sage and Sele Barony, (1848) 1 H. L. C. 507; and see Burg v. Phillpot, (1834) 2 M. & K. 349; 3 L. J. N. S. Ch. 119; Clarke v. Magnard, (1822) 6 Mad. 364; Re Sinclay, (1853) 17 Beav. 523; Legge v. Edmonds, (1856) 25 L. J. Ch. 125; 4 W. R. 71; Plowes v. Bossey, (1862) 2 Dr. & S. 145; Bosvile v. A.-g., (1887) 12 P. D. 177; Burnaby v. Baillie, (1889) 42 Ch. D. 282; 58 L. J. Ch. 842. And see on the general subject, Banbury Peerage case, (1811) 1 S. & S. 153; Morris v. Davies, (1837) 5 C. & F. 163; 1 Jur. 911; Hub. on Ev. p. 393 et seq.; Saye and Selc Barony, sup.; Hawes v. Draeger, (1883) 23 Ch. D. 173; 52 L. J. Ch. 449.
(i) See Hub. on Ev. 382, 383; Taylor, 11th ed. 649; and see 5 Cl. &. F. 221; R. v. Sourton, (1836) 5 A. & E. 180; 5 L. J. N. S. M. C. 100; Atchley v. Sprigg, (1864) 33 L. J. Ch. 345; 12 W. R. 364; and see Patchett v. Holgate, (1851) 15 Jur. 308; 16 L. T. (O. S.) 297; also Margrave v. H., (1846) 2 C. & K. 701. But the rule does not render inadmissible letters or other documents in which such declarations are contained; Aylesford Peerage, (1885) 11 A. C. 1.
Where evidence of marriage cannot be procured, the deficiency may be supplied by presumptions, arising either from cohabitation preceded by the usual preliminaries of marriage, or by the conduct and behaviour of the parties during cohabitation, and by the general reputation of the fact of marriage (m). Thus, in the cases of the Roscommon Earldom and Stafford Barony (n), the execution of marriage articles, and the grant of a Royal licence to the intended husband to marry his brother's widow, were respectively admitted as raising a presumption that the subsequent cohabitations had been preceded by marriage. In the case of the Saye and Sele Barony (0), the fact of the cohabiting parties having visited with families of respectability was successfully relied on as raising a presumption of marriage: in Lord Ochiltree's case (p), the baptism of a child as if legitimate was held to raise a like presumption. But where, as in Scotland, mere consent will constitute marriage, cohabitation, if in the beginning illicit, will continue to bear that character, unless it be clearly changed by the parties (q). And in the Shrewsbury Peerage case (r), where it was necessary to prove a marriage between W. T. and M. D., and, in the absence of a certificate, the will of M. D.'s uncle was produced in these words, "All this I give to my nephew W. T.," the production of the Act book from Doctors' Commons granting administration to
"W. T., nephew, minor, and legatee," was held sufficient to raise a presumption of marriage between W. T. and M. D. Where an intestate was alleged to be illegitimate, an extract from a certificate in the Scotch form of his brother's marriage containing a full description of the parents was held sufficient evidence of legitimacy for the purpose of granting letters of administration (s).
Presumption of marriage.
(k) Russell v. R., 1924, A. C. 687, 701.
(l) Poulett Peerage, 1903, A. C. 395; 72 L. J. K. B. 924.
(m) Be Nixon, (1856) 2 Jur. N. S. 970; Re Duvall, (1892) 36 Sol. J. 398; Re Shephard, 1904, 1 Ch. 456; 73 L. J. Ch. 401; Taylor. 11th ed. pp. 166 and 398. This rule is not applied in prosecutions for bigamy, it being necessary in such cases that the first marriage should be strictly proved; Taylor, 167.
(n) Cited, Hub. on Ev. p. 257; and see, in ejectment, Doe v. Graze-brook, (1843) 4 Q. B. 406.
(0) Cited, Hub. on Ev. p. 247.
(p) Hub. on Ev. 249.
(q) Lapsley v. Grierson, (1848) 1 H. L. C. 498, 506.
(r) (1858) 7 H. L. C. 1.
Decisions, on such points, in Peerage claims, are of higher authority between vendor and purchaser than similar decisions, even by the House of Lords, in adverse claims to property; inasmuch as, the claimant of a Peerage, like a vendor, is required to show not merely a better title relatively to some other, but to show that the title is absolutely and exclusively in himself (t).
The mere factum of marriage being proved, the Law raises every possible presumption in favour of the existence of circumstances essential to its validity (u). But the Court will not presume a marriage according to the lex loci between persons living in the midst of an uncivilised community, unless first satisfied with the evidence as to the laws and customs of the natives in that respect (x). Such a marriage must be formed on the basis of marriages recognised throughout Christendom, and be in essence the voluntary union for life of one man and one woman to the exclusion of all others (y).