(1782) 2 Paton 598
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Constitution of Marriage.—
Circumstances in which a written declaration of marriage, written after pregnancy, was not held to constitute marriage.
The appellant, while living in Aberdeen with his father, and then very young, had become acquainted with the respondent, who passed as an officer's widow. He was only
“Mrs. Fairbairn, I hereby acknowledge that you are my lawful wife, and you may, from this date, use my name, though, for particular reasons, I wish our marriage kept private for some time; and always am, Madam, your most obedient, Alexander More.
Aberdeen, 1 st May 1780.”
The letter, though granted in November, when she was far gone in her pregnancy, was antedated in the draft, and copied exactly as it stands in the original, which was obviously devised in order to make the acknowledgment anterior to the pregnancy. But this was not all. Her friend, Captain Grant, to whom she was indebted for this plan, formed another plan, in conjunction with her brother, of having this followed up by actual celebration, after having been refused a second letter more to their wishes. Being then in the country, he was followed there by Captain
July 2, 1781.
July 27, —
Dec. 19, —
The Commissaries found the marriage proved. On advocation the Lord Ordinary refused the bill; whereupon the appellant reclaimed to the Court, who adhered to this judgment.
Against these interlocutors the present appeal was brought to the House of Lords.
Pleaded for the Appellant.—Marriage must either be completed with the legal solemnities ex facie ecclesiœ, or attended with such circumstances as will authorize a court to interpose. Here it is not pretended there was any regular solemnization of marriage; and the written acknowledgment founded on to supply the place of regular marriage, cannot establish even an irregular one, because it was a written acknowledgment, extorted from the appellant after a criminal intercourse had taken place between them. It was granted to serve a particular purpose at the time, she being then
Pleaded for the Respondent.—By the law of Scotland marriage is constituted by the de presenti consent of the parties acknowledging each other to be man and wife, without the intervention of any solemnity. The deliberate acknowledgment here establishes a marriage passed antecedently betwixt the parties. The phrase used, “I hereby acknowledge that you are my lawful wife,” necessarily imports this, and which simply meant that they had been long married together. The respondent never promised to return this letter, nor was it granted to serve a mere purpose. The circumstances attending the granting of this letter of acknowledgment are quite inconsistent with the smallest degree of concussion having taken place. No one was present but themselves when he wrote and delivered it: and it is pure invention to allege that it was the fear of her brother, Mr. M'Innes, that induced him to give it, for at that time the whole affair was unknown to her brother. But even supposing this letter was not the acknowledgment of a previous marriage, yet as a private declaration of a marriage de presenti,
After hearing counsel,
And due consideration had of what was offered on either side in this cause, the pursuer not having alleged, in the original libel or subsequent condescendence, any marriage or matrimonial contract previous to the acknowledgment mentioned in her libel, as dated on the 1st May 1780, but written in fact in the latter end of November following; and no proof of that, or any other circumstance of the transaction having been produced in the cause, but, from the judicial examination of the defender, whereby it appears that such an acknowledgment was not given by the defender, or accepted by the pursuer, or understood by either, as a declaration of the truth, but merely as a colour to serve another and a different purpose, which had been mutually concerted between them; and other circumstances of the case concurring to prove the same thing; it is declared that the said written acknowledgment is not sufficient proof of any marriage or matrimonial contract having passed between the pursuer and the defender; and it is therefore ordered and adjudged that the said interlocutors complained of in the said appeal be, and the same are hereby reversed; and it is further ordered, that the Court of Session do remit the cause to the Commissaries with directions to find, that the said written acknowledgment is not sufficient proof of any marriage or matrimonial contract having passed between the pursuer and defender, and to proceed accordingly.
Counsel: For the Appellant,
For the Respondent, A. Macdonald, Dav. Rae, G. Buchan Hepburn.