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1876

v.

H. L. (Div.) Judge Ordinary for the opinion of the Court of Session, which (in my judgment) was entirely erroneous; and, secondly, upon an DE THOREN attempt to get rid of the legal presumption arising, according to the law of Scotland, from the doctrine of "habit and repute," and to reduce the question of marriage or no marriage, in this case, to one of evidence as to the constitution of a formal marriage per verba de præsenti at some period subsequent to the 16th of July, 1862.

ATTORNEY-
GENERAL.

Upon the first point I am clear that the learned Judge did not state, or intend to state, as a fact, that there was never, after the 16th of July, 1862, any interchange or expressed consent to marry, or acknowledgment with the purpose of contracting a marriage, between William Ellis Wall and Sarah Wall, but that he merely stated that the question, whether there was or was not snch interchange, consent, or acknowledgment, was to be treated, for the purpose of the Case, as depending solely upon such presumptions or inferences (if any) as the Scottish law would draw from the other facts stated in the preceding paragraphs numbered 5 and 6.

I must add that the facts stated (for the purpose only of the Case) in the paragraph numbered 6a, appear to me to be stated very much more favourably for the Appellant than was warranted by the evidence before the Judge Ordinary, which did indeed shew that the parties whose marriage was in question believed themselves, on the 16th of July, 1862, to have been lawfully married by the ceremony which then took place, but which certainly did not prove that they never afterwards during the lifetime of William Ellis Wall became aware of the legal invalidity of that ceremony: on which point (if material to the result of the case) the burden of proof, in my opinion, rested entirely on the Appellant.

I also think that there is no ground for treating the statements in this Case as so many findings by the learned Judge Ordinary upon questions of fact. Those statements were made solely for the purpose of obtaining an opinion from the Court of Session as to the conclusions of the law of Scotland upon the hypothesis of the facts so stated. If the evidence which was before the Court did not establish that hypothesis of facts on any material point, it

is, in my opinion, the duty of your Lordships now to have regard H. L. (Div.) solely to that evidence and not to the statements in the Case.

Taking this view, I entertain no doubt that the conclusion arrived at by the Court below, that the children of William Ellis Wall and Sarah Wall were legitimate, was, upon the evidence before the Court, and having regard to the law of Scotland, entirely correct.

With respect to the law of Scotland, I apprehend that the argument for the Appellants at the Bar was at variance with the principle of that law so far as relates to the presumption of marriage from habit and repute. It is indeed true that habit and repute is not, by the law of Scotland, a mode of constituting,-it is only a mode of proving marriage. It is, however, an error to suppose that what is called habit and repute is a mere element of proof directed to the establishment of the actual constitution of marriage at some moment of time, supposed to be single and definite, though not precisely ascertained by such mutual declarations as would be necessary for the direct proof of a marriage per verba de præsenti. Consent to be married persons (it matters not in what manner expressed, nor whether expressed at all, otherwise than tacitly, rebus et factis) is all that it is necessary to infer in these cases, from habit and repute-the mutual consent, and not the mode of declaring or interchanging it, being that which, by the law of Scotland, constitutes marriage. When a true and undivided habit and repute of marriage is shewn, a presumption of that marriage from that habit and repute at once arises by the law of Scotland. It is true that this presumption may be rebutted; but the onus of rebutting it is thrown by the law (as I understand it) on those whose interest it is to deny the marriage. Nor does this presumption rest on decided cases, or on the authority of the great text-writers of the Scottish law only. It is expressly recognised and confirmed by the statute of Jac. 4, c. 77, of 1503, which was mentioned during the argument at the Bar. That statute relates immediately to the claims of widows to their tierce; but it is manifest that the presumption which holds in the case of the widow's tierce must hold equally in the case of the children's legitimacy. The question in the present case arose in the exact state of circumstances contemplated by the statute,

1876

DE THOREN

บ.

ATTORNEY

GENERAL

1876

DE THOREN

v.

ATTORNEY

H. L. (Div.) viz., after the death of the reputed husband, the marriage never having been challenged during his lifetime. In that state of circumstances the statute says: "It is statute and ordained anent the exceptions proponed against widows, pursuing and following GENERAL. their benefices of tierce, or the profit of their tierce, which is ofttimes proponed against those widows, that they were not lawful wives to the persons their husbands, by whom they follow their said tierce. That, therefore, where the matrimony was not accused in their lifetimes, and that the woman asking this tierce being repute and holden as his lawful wife in his lifetime, shall be tierced and brook her tierce without any impediment or exceptions to be proponed against her, until it be clearly decerned and sentence given that she was not his lawful wife, and that she should not have a lawful tierce therefor;" distinctly, therefore, by statute throwing, in all such cases, the onus of proof upon the persons who deny the marriage. In my opinion, therefore, it would have been entirely contrary to the presumption of Scotch law, and a great miscarriage of justice, if the legitimacy of the children had not been established upon the evidence in this case.

Decree appealed from affirmed, and appeal dismissed with costs.

Agent for the Attorney-General: E. L. Rowcliffe.
Agents for the Appellant: Vallance & Vallance.

Agents for the Respondents: Tatham, Procter, Tatham, &
Procter, London; and Thomas Barneby, Worcester.

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Case in which three grants of land, reserving the minerals, but each reservation varying in substance and expression, were held to have respectively secured, and not to have secured, a right to carry outside minerals underneath and through the land granted.

Remarks by Lord Chelmsford and Lord Selborne as to the question whether the rights reserved were rights of property, or rather in the nature of privileges, servitudes, or easements.

IN this case the suit was instituted by Mr. Blair against Mr. Ramsay of Tilliecoultry and the Alloa Coal Company, to prevent them from carrying their coal works under Mr. Blair's lands, forming portions of the Tilliecoultry estate, which had come to him at different periods from the Ramsay family, as Superiors thereof.

The defence of Mr. Ramsay and of the Alloa Coal Company was that in the grants to Mr. Blair there were reservations which entitled them not only to work the coal under Mr. Blair's land, but also to make and use passages through it for the transmission of coals lying outside and beyond his boundaries.

In

Mr. Blair had three distinct grants of contiguous parcels of land, with reservations of the coal underneath. In 1825, one parcel was granted "reserving the coals and coal-heughs." 1857, another parcel was granted "reserving the coal, with power to dig for, work, and carry away the same, on paying the surface damage."

A much larger retention appeared in the grant of 1827, the reservation "specifying the whole coal, stone quarries, and all other metals and minerals within the said land and with power to search for, work, and carry away the same, paying all damages." The Lord Ordinary (1) decided as to the grants of 1825 and (1) Lord Mackenzie.

1876 RAMSAY

H. L. (Sc.) 1857, that the Appellants had no right to carry outside coal or other minerals through the Respondent's lands, whether below or above ground, except through coal wastes, or through the land granted with the large reservation of 1827. The Second Division confirmed the Lord Ordinary's decision (1); and thereupon Mr. Ramsay and the Alloa Company appealed to the House, having for their counsel Mr. John Pearson, Q.C., and Mr. Cotton, Q.C.

v.

BLAIR.

Mr. Southgate, Q.C., and Mr. E. Kay, Q.C., appeared for the Respondent.

At the close of the argument on behalf of the Appellants, the following opinions were delivered by the Law Peers:

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My Lords, it seems to me, as I believe it seems to your Lordships, that there is no difficulty whatever in this case, and that there is no necessity to hear the counsel for the Respondent.

The simple question arises upon three grants with reservations made by the Appellant, Mr. Ramsay of Whitehill. These grants were made in 1825, 1827, and 1857. The first, that of 1825, contained this proviso:

Reserving always to me, my heirs and successors, the coals and coal-heughs, all of the said haiil lands to be won and disposed upon by me and my foresaids at our pleasure.

The grant of 1857 is said to be practically in the same terms; the reservation is

Excepting always the coal within the said several subjects to the said James Blair, which coal is hereby expressly reserved to the said Robert Balfour Wardlaw Ramsay, with full power to him to dig for, work, win, and carry away the same, on paying the surface damages which the ground may thereby sustain.

With regard to those grants, there can be no doubt at all that the only reservation is of the coal under the surface, and the grantor would have no power whatever to carry under those lands any coals or minerals won and worked from any other lands.

The reservation in the grant of 1827 is more extensive. It is:
Reserving always to the said Robert Wardlaw Ramsay and his heirs and

(1) Scotch Cases, 4th Series, vol. iii. p. 25.

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