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

LAW INTELLIGENCE,—May 6. -

VICE-CHANCELLOR'S COURT.
(Before Vico-Chancellor Sir W. P. `Wood.)
GURNEY V. GURNEY.

The arguments in this case, which had been adjourned at
the conclusion of the plaintiffs' case, were this morning re.
sumed. The object of this suit, as has been already stated,
is to carry out the trusts of a settlement of £2,000 made by
Mr. J. H. Gurney in January, 1862 (after his divorce), for
the benefit of the children of the marriage, and to obtain a
declaration that the two infant plaintiffs (born before Mrs.
Gurney's elcpement), as the only children of the marriage,
are absolutely entitled to the property comprised is the set-
tlement.

The case made by the bill is as follows :—The plaintiff,
Mr. Gurney, of Catton-hall, Norfolk, was married in 1846
to his cousin, Miss Mary Jary Gurney, Previously to 1859
when cohabitation ceased, there were two children of the
marriage, the infant co-plaintiffs. On the 13th of Decem-
ber, 1859, Mrs. Gurney eloped from her husband's hens', in
Kensington Palace-gardens, with one Taylor, a groom in
Ms. Gurney's service. On the 23d of December she left
England, accompanied by Taylor, for France, where they
remained until the 18th of September, 1860. Mr. Gurney
immediately after the elopement commenced proceedings
in the Divorce Court, and on the 13th of February, 1861,
obtained a divorce nisi for the dissolution of his marriage,
the final decree dissolving the marriage absolutely being
dated on the 22d May, 1861. On the 4th of May, 1861,
Mrs. Gurney, who had continued ever since her elopement
to live with Taylor, was confined of a full-grown male child,
the defendant in the present suit. Under these circumstances
the bill was filed against the trustees of the settlement and
the infant born in May 1861, for the purpose of carrying
into execution the settlement made by Mr. Gurney in Jan.,
1862, for the benefit of all and every child then living of
the marriage of the said J. H. Gurney and Miry Jane
Gurney; and in order to exclude the child born to Mrs.
Gurney in May, 1861, a declaration was prayed that the
two infant co• plain tiffs, as the only children of the marriage,
were absolutely entitled to the trust funds comprised in the
settlement. Evidence was given at great length for the
purpose of rebutting the ordinary presumption of legitimacy,
and of showing, from the absence of all access after Decem-
ber, 1859, that Mr. Gurney could not have been the father
of the child born in May, 18,;1.
From the nature of the defence raised, it is not necessary
to advert to the evidence further than to state that the only
time during all this period when Mr. and Mrs. Gurney were
in the same county was towards the end of September,
1860. It appears that on the 18th of September in that year
Mrs. Gurney came to England alone and endeavoured to see
her husband, who was at that time staying with Mr. de
Bunsen, at Abbey-lodge, Regent's-park. On the 22d of
September, early in the morning, she went with Catharine
Gh insworthy, with whom she was then lodging, in a cab to
Abbey-lodge, and sent Mrs. Gainsworthy into the house
while she remained in the cab. Mrs Gainsworthy contrived
to see Mr. Gurney, and the interview was thus described by
Mr. Bunsen—

" In passing along the hall, so as to have a full view of
the front door, I saw Mr. Gurney and a female standing in
the lower part of the hall. That woman was not Mrs.
Gurney. The woman was in what I must call an imploring
attitude—her hands folded, and she was impressively look-
ing into Mr. Gurney's face. Her tone of voice denoted
much emotion. I heard her while in this imploring atti-
tude utter three or four words. I heard her say, Do take
her back,' or Take her back.' Mr. Gurney made no
answer. I recollect his attitude, witb both hands uplifted.
He moved them towards the woman. I immediately left,
It was an instant. I heard and saw nothing more."

The cab drove back with Mrs. Gurney, who had remained
in it all the time, and Mr. Gurney left London that after-
noon. Mrs. Gurney was shortly afterwards joined by Tay-
lor, and they had continued to live together ever sit ce.
The Solicitor-General, Sir Hugh Cairns, Mr. Aspland

common law bar), and kr. Hutton, for the plaintiffs, con

tended that the evidence conclusively negatived the ordi-
nary presumption of legitimacy arising in favour of children

born during wedlock, - Access of any kind for the whole
period after Mrs. Gurney's elopement was shown not only

to have been improbable, but even impossible. The only
time when there could possibly have been a meeting was in
September, 1860, when she left her paramour and returned
alone to England, but the evidence proved distinctly that
Mr. Gurney had absolutely refused even to see her. The
circumstances as to the birth of the child, its recognition by
Taylor, the period of gestation, &c., were all conclusive
against its being the offspring of Mr. Gurney, or entitled to
the benefit of the settlement to which this suit sought to
give effect.
Mr. Walford appeared for the trustees of the settlement,
but took ro part in the argument.
Sir Fitzroy Kelly, for the infant defendant, denounced
the proceedings as a mere contrivance for the purpose of ob-
taining a judicial declaration which would in effect bastardize
the infant defendant. There was no precedent for such a
suit, and the Court ought at once to discountenance any
attempt to obtain its decision upon a merely fictitious
proceeding. Looking at the amount of Mr. Gurney's
fortune, and the trifling amount of the sum settled, there

could be no doubt—in_ fact, it was not disputed—that

the settlement was a mere device for the purpose of
raising this question, which was of most vital interest to
this poor helpless child. If this suit were to succeed a most
dangerous precedent would be established, and it would go
forth to the world that any stranger, however malignant his
motive, however overwhelming the misery thereby occa-
sioned, would have nothing to do but to create a trust deed,
invest some hundred pounds in the funds, and then be able
to raise such a question. What an advantage would be
afforded to the rich over the poor if such a contrivance were
allowed to succeed 1 The question might be raised upon
most honourable, virtuous, and praiseworthy motives, but
it was equally true that a man with money at his command
might by this means be enabled to gratify his determination
to wound and lacerate the feeling of a whole family, and
bastardise a, poor infant possibly destitute of the slightest
protection. Such a suit, whatever might have been the
conduct of the mother, ought to be at once discountenanced.
The propositions that had been stated by the Solicitor-
General as to the possibility of rebutting by evidence the
ordinary presumption in favour of legitimacy could not be
disputed, but, at the same time, if there had been any possi-
bility of access, the case against legitimacy must be over-
whelming and irresistible. There must be that which
amounted to an absolute physical impossibility, that the
husband could be the father of the child. No doubt the
evidence against legitimacy in thiscase was strong, but not,
it was admitted, conclusive. Access in September was not
only possible, but easy; and looking at the facilities for
travelling now existing, the old doctrine that the party must
be intra quatuor maria to afford a possibility of access was
considerably modified. Could the Court say that the case
was free from doubt ? If not, then this child ought not to
be bastardised. But he would rest his defence mainly upon
the objection that he had already urged to the frame of the
snit, and the dangerous precedent that would be established
if the social status of this child were allowed t > be thus
affected for life by the contrivance to which Mr. Gurney
had resorted.

Mr. Sergeant Ballantine and Mr. G. N. Colt followed
on the same side, and offered on behalf of the guardians of
the infant defendant to bring into court a sum equal to that
comprised in the settlement, and that the trustees should
be at liberty to apply the whole of the settled fund for the
benefit of the infant plaintiffs.
_ _

The Solicitor-General, in reply, said that upon the recDrd
and upon the evidence the suit was equally just and benefi-
cial to the infant plaintiffs. A settlement had been made,
the money had been invested, and there was not a single
fictitious element in the transaction to which the infant

plaintiffs by their father as next friend sought to give effect.
In cases as to the custody and guardianship of infants no-

thing was more common than to settle some small sum for
the purpose of giving the Court jurisdiction to deal with
these questions. (The cases of Shelley's children, Mr.

Adrian Hope's children, and that of Alicia Race were re.

(erred to.) Here the object of the contrivance, if contri-

vance it was, was righteous, honest, and just. It was for
the benefit of these children—aye, even for the benefit of

the infant defendant himself, that his status should be now
determined, rather than at a later period, when associations
had been formed, and the stain of illegitimacy would be
more keenly felt. The plaintiffs were therefore entitled to
have the question now determined once for all, and as the
attempt to show that the defendant was illegitimate had been
abandoned the declaration asked by the bill must follow as
a matter of course. His Honour, in the course of the argu •

ment, observed that although the Legislature had rec-mtly
given jurisdiction for obtaining a declaration of legitimacy,

no similar jurisdiction as to illegitimacy had been afforded.
Mr. Rolt was also in the case, on behalf of the infant de-
fendant, but is still confined to his house by illness.
The Vice-Chancellor said that he had been from the
first struck with the novelty of the manner in which the
question at issue in this cause had been raised, and the ob-

jections were undoubtedly entitled to great weight and con-
sideration, Looking at the large and vital nature of the
iutereets involved, and the great anxiety that must natu-
rally exist in questions like the present to obtain the di-
rection of the Court, it was eingular that this simple course
had never before been adopted. As to comparative justice or
injustice, emparative advantage or disadvantage, it was

very difficult to discover any consideration upon which it
could be for the interest of this child that this question as

to his legitimacy or illegitimacy should be determined after
he had attained riper years rather than now in his infancy,
when he had acquired no status whatever, There could be
. _

no doubt that it was of the greatest possible importance for
this child's welfare that his social position should be deter-

mined at the earliest Fossible period. The cases at common
law cited by Sir F. Kelly did not appear to raise any real
difficulty. The Courts had said that they would not allow
their proceedings to be trifled with by having questions
submitted to them in a fictitious form. This Court, he
feared, had very often been mado an instrument of by means

of proceedings which were in reality instituted for the mere

purpose of advertising particular articles, and it might be
well that some test should be adopted for the purpose of as-
certaining the bona fide nature of the proceedings in cases
of that description. In this case, however, grave and serious
interests were beyond question at stake. It was said, in-
deed, that those grave and serious interests were not those
. . .

which were properly raised by the bill. But courts of com-
mon law had never proceeded so far as to say that they
would not determine a point legitimately brought before