The Sun.
London, England, 1863-05-07 00:00:00

them because that determination might involve in its con-
sequences large and grave interests far exceeding the matter
originally placed in issue. As to the jurisdiction of this
Court, the cases cited by the Solicitor •General as to the cus-
tody and guardianship are entirely applicable. This Court
had acted and continually acted in cases where the matter
upon which it had acquired jurisdiction was for the very
purpose of raising these larger and more important quest ions.
Cases as to the guardianship and custody of children in-
volving quite as important interests as in this case were of
frequent occurrence, in which some provision had been made
for the purpose of giving the Court jurisdiction. In many
instances this bad notoriously been done for the express
purpose of taking the child from its father's custody, or of
educating it in a faith different from that of its surviving
parent ; and with what success he need only refer to the
case of Shelley's children, before Lord Eldon, and to that of
Alicia Race, before Vice-Chancellor Kin.dersley, within the
last few years. On the settlement now before him, how
could he escape from determining who were the objects of
the trust by the circumstance that be might happen to know
the oosition and fortune of the father, and that he had made
the settlement for the express purpose of raising the question
of who were or were not his children? It was said that the
peace of families ought not to be disturbed by allowing a
stranger to come forward and make such a provision in
order to raise a question of this kind. Courts of common
law had no doubt refused to countenance wagers, as interfer-
ing with the peace of families. (H is honour referred to the
case of the notorious Chevalier D'Eon and the wager as to
his or her sex), and there were instances in which this court
had struck out provisions from settlements when inserted
for an obNiously improper purpose. The answer to all these
objections was, that the Court dealt with such cases as it
found them. The case before the Court was that of a father
who had good reason to dispute the legitimacy of this
child. He had other children, and considered it for their
happiness, and even for the happiness of that infant, if it
were his child, that the status of the family should be at
once ascertained. A more proper object could hardly be
suggested. The settlement was made, and the infant plain-
tiffs, by their father as their next friend, sought to have its
trusts carried into execution. No one could dispute that it
was for their benefit that their interests in the trust fund
should be ascertained and determined. The mode of meet-
ing the case which had been suggested at the bar, viz., by
lodging in the hands of the trustees a sam of money equal
in amount to that settled by Mr. Gurney, could not for a
moment be listened to. Besides protracting for this infant
the period at whit h his status would be ascertained, it would
be altogether stultifying the proceedings of the court to
alluw the suit to be thus bought off. Some argument had
been founded on the circumstance that the Legislature
had recently sanctioned proceedings for the purpose of ob-
taining a declaration of legitimacy, but had not given a cor-
responding power for the purpose of obtaining eideclaration
of illegitimacy. The Legislature might have thought that
the peace of families would be disturbed by allowing pro-
ceedings for that purpose to be instituted by any stranger;
but it must have been aware that in various collateral pro-
ceedings these questions constantly had to be determined.
He could not, therefore, draw any inference from that cir-
cumstance either one way or other. Having had full op-
portunity of considering the cese since it was first opened,
he saw nothing to lead him to say that he ought not to
entertain the bill. As to the facts, the case was in effect un-
defended. Every step, no doubt, had been taken that was
possible, and this infant had not suffered from any lack of
means for having its interests protected and asserted. It
gave him the greater satisfaction in determining the case
that all that was possible had been done for the purpose of
proving the child's legitimacy. It was hardly necessary to
dwell for a moment upon the evidence. The case was very
much stronger than that of " Morris v. Davies," 5 Cl. and
Finn (in the House of Lords), for it was proved, so far as
negative evidence could establish the fact, that never for a
single moment were Mr. and Mrs. Gurney even within
sight of each other from the first moment of the elopement
down to the birth of this child. The time of Mr. Gurney
had been so accounted for that there was not even a pre-
sumption upon which to go to a jury that he ever left this
country for France during all that time ; and so with Mrs.
Gurney in the same way. It was quite true that in Sep-
tember, 136(1, she seemed to have some wish for a reconci•
liation, and that she came over to England alone, and made
an attempt at an interview with her husband (whose ad-
dress she clearly did not then know). But it was clear
upon the evidence that the attempt utterly failed.
Even if the husband had not been active from
first in taking proceedings in the Divorce Court to separate
himself from this woman, there was every possible reason
for presuming, under the circumstances, that an interview
between them was impossible. Every circumstance in this
case was much stronger agsinst the legitimacy of this child
than in "Morris v. Davies," and the only conclusion that
he could come to was, that it was the offspring of the un-
lawful union between Mrs. Gurney and her paramour.
There must accordingly be a declaration that the trusts of
the settlement of January, 1862, ought to be carried out,
and that the infant plaintiffs, as the only children of the
marriage, were absolutely entitled as tenants in common to
the whole of the trust funds comprised iu the settlement.