assoilzied the defender. The chief contradiction was, that while the condescendence averred (very possibly an agent's fault, to strengthen the statement) that connection had existed between the parties for many years previous to 1834, she swore her first lapse was in that year, and her deposition contradicted some of the witnesses in important points. The court was clear that the woman was not entitled to the benefit of the previous finding of semiplena, as an interlocutor which was impregnable; it being necessary that the proof constituting the semiplena, and the evidence arising out of the oath and the record, should cohere and be consistent as a whole.'-8th June 1838, M'Naughton. The following day a similar decision was given, where the woman directly contradicted the evidence of the one witness on whose evidence chiefly her oath had been admitted. Per Lord Corehouse: The pursuer's averments on record are quite inconsistent with the evidence, and, indeed, her oath directly cuts down that of the witness on which we previously relied.'-9th June 1838, Greig, 16 S. 1132.

63. The man admitted only one act of connection with the woman six calendar months and nine days before the birth of the child, which it was offered to be proved was full-grown. The oath being admitted, she swore to the same fact, thereby contradicting her previous averment of former connection. The Court now held the proof not sufficient, Lord Fullerton dissenting. Lord Jeffrey observed, that the oath in supplement is to be regarded as the oath of an additional witness, who is to be received cum nota, and whose credit it is for the Court to determine; and even if her oath be deliberate and minute, and sufficient in itself to make it a good deposition with reference to the question at issue, yet if it be contradictory of the other evidence in the case, so as not to be sufficient when the whole is taken together, to complete the full measure of legal evidence, then the case fails.'28th June 1848, Folley, 10 D. 1424.

4. Duration and Amount of Aliment, Custody of Child, and Miscellaneous Points. 64. Aliment was awarded the mother of a female child until fourteen years of 25th July 1740, Graham v. Kay, Mor. 441.

age.

65. Aliment was allowed for a boy until he should attain the age of seven years, and thereafter until either the father took the child into his own keeping, or the child attained the age of ten years.—3d March 1778, Oliver v. Scott, Mor. 444.

66. Aliment was decerned for a girl until she arrived at the age of ten years complete, reserving to the child to apply afterwards for aliment as accords.-19th Nov. 1782, Glendinning v. Flint, Mor. 445.

67. Ten years for a girl, and seven years for a boy, were held to be the proper term for aliment and custody.-29th Nov. 1782, Paterson v. Spiers, Mor. 445.

68. The justices of Dumfriesshire found the father of a bastard liable in 20s. for one-half of childbed expenses, and £2, 10s. as one-half of aliment yearly for ten years. The mother married, and the father required delivery when the child was three years of age, relieving her and her husband of all future aliment. Delivery was refused. The Court found the mother entitled to the custody. The sex of the child is not mentioned in the report.-1758, Burges, Mor. 1357.

69. The mother was found entitled to the custody of a girl aged seven years against the father, who claimed her for education, and who had married another woman. The court found the defender liable in £3 for inlying expenses, and £4 of aliment for fourteen years.-1765, Short, Mor. 442. Fourteen years' aliment was given in a prior case, and the plea of the triennial prescription was repelled. £40 Scots yearly was awarded in this case for the whole term of years.-1758, Paterson, Mor. 11,080.

70. The justices awarded £2 of inlying charges, and £5 annually for seven years, against a small farmer or cottar, and the court did not disturb the rates.9th June 1831, M'Crone, 9 S. 962. In 30th May 1832, Jobson, 10 S. 594, £10 for the first, and £8 for the following nine years, were given for a male child against a professional gentleman. In Boyle, 30th May 1840, 2 D. 994, £6 was awarded of yearly aliment. Decree was given for £2 of inlying charges, and £6 for twelve years, of a male child.—5th Feb. 1825, Robert, 3 S. 500; 25th Feb. 1826, Arnott, 4 S. D. 503.

71. A mother having carried away a bastard daughter in pupillarity from a

boarding-school, where with her consent she had been placed by her father's trustees, the court ordered her to restore the child.-22d December 1821, Speid, F. C. In a footnote in 1 Shaw 221, it is stated that, in a case between the same parties, the Court found the mother entitled to the continued custody of her daughter at six years of age. Subsequently the same girl, then eleven years of age, was ordered to be removed and placed in a boarding-school. Per Lord Glenlee: 'It is very doubtful whether a mother of a bastard child, even when she remains unmarried, has any legal claim of custody. It is rather because it is generally best for the child that it is allowed to remain with her, and it was for this reason that in the former case between the parties the Court left the child with her mother notwithstanding her marriage. No such reason now exists, and all claim of right, if any did exist, is at an end by the marriage, so that the only question is, What is best for the child?' The Lord Justice-Clerk (Boyle) observed: 'That though the child was under seven, the Court might have removed her, had the character of the mother been bad.'-28th May 1825, Whitson, 4 S. D. 42.

72. It was found that a party paying aliment for a female child, but denying the paternity, was not entitled at seven years of age to insist on having the custody of the child in his own family. The court fixed £2 as inlying expenses, and £5, 10s. for the first year. The court were unanimously of opinion that the mother was the only proper creditor for the inlying expenses and aliment for the first year, during which she must have nursed the child; but as to the subsequent aliment, that if it had been supported by her father he was entitled to receive payment of it from the defender, and that the averment of his having done so was relevant. One of their Lordships expressed an opinion that even the true father of a bastard child has no right of custody; and all were agreed that the defender, while he denied the paternity, had no such title.'-19th Feb. 1825, Keay, 4 S. 706. It was subsequently found that a father was entitled to the custody of a boy at eight years of age, he offering to take him home and instruct him in his business as a plasterer. The aliment in this case was fixed at £5 in the year.-14th June 1826, Keay, 4 S. D. 706.

73. In an action at the instance of an illegitimate daughter, aged fourteen, and in delicate health, with concurrence of the person alimenting her, against the judicial factor on the estate of her deceased father, she claimed £10, 103. of yearly aliment. On a remit, the sheriff of Fife (A. E. Monteath, Esq.) reported: Had the action been brought in the Sheriff Court of Fife at the instance of the mother of the child, I should have thought £4 or £5 a moderate sum to have awarded against the father in the circumstances, on the assumption that the mother should bear her proportion of the expenses. At the instance of a stranger, who was under no obligation to aliment, I should think £8, 88. a proper sum, and certainly not too much.' The Lord Ordinary awarded £8, 8s., and the court adhered, but found that the claim could only be ranked on the estate with those of other creditors.-8th Feb. 1848, Gardner, 10 D. 650.

74. The mother of a bastard girl, of nearly six years of age, was found entitled to her custody, to aliment at the rate of £150 per annum, aud £40 for house rent, in a question with the trustees of the father, who had died leaving a succession of £60,000 to the child, and who had provided the mother with an annuity of £100. Lord Balgray observed: 'It is undoubted that where parents maltreat their children, or violate the trust committed to them by nature, the court is entitled to interfere, whether the children be legitimate or illegitimate. But it is only in such a case that the parents can be deprived of the custody of their children. The law of nature, the civil law, and the law of Scotland, concur in holding that the mother of an illegitimate child is entitled to its custody in its tender years, where there is no accusation against her except that which arises from the circumstance of her being the mother of the child. If she misbehave or marry a stranger, the court is entitled to interfere for the protection of the child.' Per Lord Craigie: There is no fixed rule as to the custody of illegitimate children; and the only general rule which can be laid down is, that the court must attend chiefly to what is most beneficial for the child.'-5th July 1825, Baxter, 4 S. 137. Lord Craigie made a similar observation in the case of Fairweather, infra.

75. A woman obtained an award of £6 per annum against a man with an

income of £1500 a-year; and after a medical inspection of the boy, he was at the age of six years ordered to be removed from the mother, who had married, and to be placed with a schoolmaster at a board of not less than £12 per annum. Lord President Hope observed: With regard to the rate of aliment, we should be governed more by the rank of the mother than by that of the father; because, if we come to give it in proportion to the amount of his income, we would just be holding out a premium to persons in her situation to submit to the embraces of the rich; or, it might have been added, to fasten the charge on an innocent wealthy person, in preference to a poorer one really guilty.-23d May 1826, Fairweather, 4 S. D. 614.

76. A medical man put the child of another party to nurse, and the nurse refusing to restore the child to him, he was found no longer liable in aliment.-1st March 1832, Forbes, 10 S. D. B. 410.

77. Held that an agreement with a mother as to the aliment of her child did not bar the claim of the child, and that the father is liable in aliment so long as the child, from ill health, is prevented from maintaining himself; but that he was entitled to the custody of the boy to teach him a trade.-7th Dec. 1833, Pott, 12 S. 183.

78. Where the mother had granted a discharge for future aliment of her child, found that she could not prosecute for bygone aliment. The agreement was not binding on her and the child for future aliment. Per Lord Cockburn: The discharge is effectual against the mother, but is of no efficacy as against the child.'— 12th Feb. 1842, A. B. v. Chisholm, 4 D. 670.

79. The father of the mother of a bastard, the father of which was unable to pay for its support, was found entitled to relief from the parish poor's funds, though the father offered to take the custody of the child. Per Lord President: • With regard to the custody of a natural child, I understand it to be fixed that the mother is entitled to have it for seven or ten years.' Per Lord Jeffrey: 'In a question between the father and the mother as to the custody, the mother's right is absolute, and no offer by him can be pleaded against her natural right during the tender years of the child.'-20th June 1844, Weepers, 6 D. 1166.

80. Where a mother had made no claim for aliment for fifteen years, she was found, on proof of semiplena and her oath in supplement, to decree for inlying expenses and aliment from the child's birth 'aye and while it shall be unable to support itself,' and the triennial prescription was found not to apply.-7th July 1809, Finlayson, Fac. Col.

Note. At one time the triennial prescription was held to apply to aliment of bastards.-1758, Paterson; 1791, Forsyth, M. 11080-1. But a series of decisions has now fixed it to the contrary.-19th Feb. 1807, M'Dowal, F. C.; 26th Feb. 1842, Thomson, 4 D. 833. But when aliment is supplied by a stranger, the prescription still applies.-21st June 1872, Legerwood, 44 Jur. 472; 2 Napier on Prescription, 804; M'Glashan on Aliment.

81. A sum of £5 of inlying expenses, and £8 of yearly aliment, was awarded against a person said to be a farm-servant.-16th July 1857, Orr v. Kinloch, 29 Jur. 477. 82. Where a small payment had been made after decree for aliment, and there was the delay of upwards of ten years until the man died, who had lodged in the woman's house, held there was no presumption of settlement of the decree.-19th June 1855, Melrose, 17 D. 965.

83. The mother of a male bastard obtained interim decree against the father for aliment for seven years, reserving her claim for further aliment. On the death of the father, an action of transference against his representative was found competent, and aliment at the rate of £8 awarded until the child should reach the age of twelve.-7th July 1858, Fleming, 30 Jur. 725.

Note.-The case of Kerr in 1692, Mor. 1868, finding that the claim for aliment of a bastard did not attach to representatives, was doubted.

84. An action was brought in the Sheriff Court of Forfar for a child born in the county, but the connection was alleged to have been in England, and the defender an Englishman resident there, but personally cited within the county. Held there was no jurisdiction in the Sheriff Court.-9th Feb. 1860, Crichton, 32 Jur. 279.

85. A suspension of a decree for aliment craving to be allowed further proof was refused.-4th Dec. 1861, Crawford, 34 Jur. 60.

86. A woman having obtained decree for aliment before the justices, afterwards raised an action before the sheriff for a higher rate. She abandoned the first decree, and the plea of res judicata was thereon repelled.-13th Jan. 1864, Campbell, 36 Jur. 194.

87. A fuga warrant found competent on a claim for the aliment of a child unborn.--9th Feb. 1861, Duncan, 33 Jur. 268.

88. Where the woman negatived connection on the only time condescended on, the Court on an advocation refused to allow her to be re-examined to explain.— 7th Feb. 1856, Scott v. Campbell, 28 Jur. 199.

89. Mere taciturnity will not exclude the claim of aliment. After thirty-eight years the mother's claim was sustained, paternity being admitted, and there being no proof of settlement.-11th Jan. 1859, Waugh, 31 Jur. 124.

90. Inlying expenses and expenses of nurse are incident to aliment, so as to authorize imprisonment under the exception in the statutes abolishing imprisonment for small debts.-19th July 1860, Cheyne, 32 Jur. 679.

91. The father of an illegitimate male child of seven years of age offered to aliment the child in his own house. The mother was held entitled to the custody, but refused aliment. Per Lord Cowan: 'If no demand for aliment is made by the mother, the father cannot demand the custody of the child from the mother. But after the age of seven if a boy, and of ten if a girl, if no delicacy is alleged to exist, the father, if aliment is demanded, is entitled to meet that demand by an offer to take the child into his own house, or to make other arrangements for its aliment.' -24th Feb. 1860, Adair, 23 Jur. 377.

92. The paternal grandfather of a bastard, who had alimented him, held to have a claim of relief of the mother's proportion of aliment against her estate, and that the relatives of the deceased mother had no legal claims to the custody of the child, the right being peculiar to the mother.' Per Lord Cowan.—4th July 1865, Wilson, 37 Jur. 557.

93. The mother of an illegitimate girl, aged eight years, found entitled to her custody on discharging the father from all claim for future aliment.-14th Jan. 1865, Simpson, 37 Jur. 182.

94. The father of a female bastard, aged ten, found entitled to demand the custody of the child from the mother to be placed under charge of a married sister, though he ten years previously had committed perjury in denying the paternity. -29th Feb. 1872, Grant, 44 Jur. 276.

Justices in England had the power of issuing an order of filiation by the 18 Eliz. c. 3, s. 2, and 4 and 5 Wm. IV. c. 97 (1834). The law as to bastards, 35 and 36 Vict. c. 65 (1872), authorizes the mother to apply to the justices in Petty Sessions for an order of affiliation. She may summon the putative father any time within twelve months after the birth, or at any time on proof of money having been paid to her in respect of the child. Not more than thirteen weeks' arrear can be claimed. It is not absolutely necessary that the mother should be examined if the case can be otherwise proved; but if she is heard, then her evidence must be corroborated in some material particular by other testimony to the satisfaction of the justices, who, taking care that there is some evidence of that nature, are therefore the only judges of its weight.'-Burns' Justice of the Peace, thirtieth edition (1869), p. 413. The term 'single woman' in 7 and 8 Vict. c. 101, s. 2, includes a widow (Reg. v. Wymondham, 2 Q. B. 541). It seems, in the case of illegitimate children, the mother is the proper party to have the custody of them during the age of nurture. She is liable for their maintenance until the age of sixteen; and if she neglects her offspring, she may be punished under the Vagrant Act, 5 Geo. IV. c. 83. See the author's pamphlet On the Law and Practice of England and Scotland in Affiliation Cases (1875).

BATHING. In England 'it is an established principle, that whatever openly outrages decency and is injurious to public morals, is a misdemeanour at common law. It is therefore indictable for a person to bathe in an indecent manner near a highway or in any part of a public river.'- Blackstone 65; Burns' Justice

(Chitty's edition), p. 408; 1 Hume (Bell's Suppl.) 85. See case in Perth Circuit, Sept. 1864, as to bathing at Brechin.

BATTERY, in English law, is when any injury whatsoever, be it ever so small, is actually done to the person of a man in an angry or revengeful or rude or insolent manner, as by spitting in his face or throwing water on him, or in any way touching him in anger, or violently jostling him out of the way, and the like.' 1 Hawk, c. 62, s. 2. See Assault.

BATTERY PENDENTE LITE was an assault by one of the parties in a lawsuit on another, during the dependence of the action, and which was formerly punished under the statutes 1584, c. 138, and 1594, c. 219, by loss of the cause to the assaulter, a most anomalous punishment, indicative of the then state of society. This law continued until the recent statute 7 Geo. IV. c. 19, by which it was abolished.

BEASTS, WILD BEES (FERÆ NATURE). The property of these is acquired by occupancy. So, in a conviction under the Game Laws, the animals taken remain the property of the offender, unless expressly forfeited by statute. When enclosed, they become private property, such as bees in a hive or skep, fish in a pond, and birds in an aviary; the taking of any of which is theft. If they escape, and pursuit given up, they are again common, and so become the property of the finder. With bee-hives, if the identity can be clearly made out, and the claim made without delay, the owner ought to have the property in preference to another, on whose premises they may have alighted.

BEATING OF JUDGES sitting in judgment was at one time a capital offence. -1593, c. 173; 1600, c. 4; 1 Hume 405.

BEER ACT.-See Publican.

BEFORE ANSWER. Where there exist serious doubt and difficulty whether averments, though proved, are sufficient in law for the success of a party, and the legal question may somewhat depend on the exact amount and nature of the proof, it is allowed before answer;' meaning thereby that the relevancy of the averments is reserved, so that, though proved, the decision may nevertheless be adverse on the law. If the proof ultimately fail, then the case may be thereon decided without applying a doubtful rule of law; but where the proof is full and successful, it is painful to be set out of court, after the expense of proof, on a pure point of law, which might as well and better have been decided at the first. Unless, therefore, on very doubtful points, or where the law is so much mixed with the fact (hitherto too prevalent in Scotland), this form of procedure is not to be recommended; and it appears much like an apology for indolence or timidity in the judge entertaining the hope that failure in the fact may render the application of some delicate point of law unnecessary, so that the knot may be cut which he cannot well untie. In English law this inconvenience is obviated by the procedure known as demurring to the pleadings, i.e. either party contending that the facts of the other, even if proved, give him no ground for maintaining or defending the action, as the case may be.

BEGGARS. The following severe statutes were passed against beggars and vagabonds :-1424, c. 42; 1535, c. 22; 1579, c. 74; 1592, c. 149; 1597, c. 272, and chiefly 1698, c. 21; but these are now much in desuetude, though still useful for reference in questions on the history and policy of the Scotch Poor Law. The first ordinances of Bridewell in 1557 declare: There is as great a difference between a poor man and a beggar as between a true man and a thief. The poor man is he whom sickness and age oppresseth, or by losses or otherwise is driven to the ground with necessity, which doth labour willingly to gain that which may be gotten so long as power and strength will serve. The beggar is the contrary; one who never yieldeth himself to any good exercise, but continually travaileth in idleness, training such youth as cometh to his or their custody to the same wickedness of life.'-1 Hume 477.

BEHAVIOUR AS HEIR (gestio pro hærede) renders an apparent heir in heritage liable universally for the debts of his ancestor: 1st, By the Act 1695, c. 24, if the heir enter and possess, or purchase by himself or other person, any part of his ancestor's estate, except at public sale, he incurs this liability; but he must possess under the right purchased to create liability.-1796, Clelland, Mor. 9759.