Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Mrs Kennedy
v.
Mrs Campbell

Date: 19 June 1751

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[Elch. No. 7, Proof.]

This was a competition betwixt two ladies about a dead man, the late Campbell of Carrick, who in the year — granted a holograph certificate to Mrs Kennedy, the pursuer, certifying that he had married her such a day before two witnesses named, but not subscribing, at such a place. In consequence of this certificate it was not doubted but the copula had followed though they never publicly cohabited together. Some time after this he married clandestinely, without proclamation of banns, Mrs Campbell, the defender; but at the same time he wrote a letter to the pursuer, acknowledging her for his wife still, and expressing the utmost sorrow for what he had done. However, he lived near twenty years thereafter publicly with his second wife, had children by her, and all this while the first wife made no complaint, (for certain prudential reasons, as was said, and for one obvious one, lest the man should have been hanged;) but on the contrary behaved to Mrs Campbell as if she had been his wife. She now brings an action against Mrs Campbell to have her marriage declared. The Lords found at first, that by her silence for so long a time, and her acknowledgment of Mrs Campbell's marriage, she was barred personali exceptione ; but this decree the House of Peers reversed, as inconsistent with the sacred contract of marriage, and allowed Mrs Kennedy to prove the marriage. In consequence of which decree Mrs Kennedy insisted in the proof of her marriage before the Court of Session ; and to prove the date of the certificate, (which being holograph did not prove its date,) she brought witnesses who deponed they saw it in her possession before the second marriage: yet the Lords found the first marriage not proved. Lord Elchies said that the certificate only created an obligation upon Carrick to marry the pursuer, upon which he could have been pursued for implement ; but not a marriage. But quære, Is not an obligation to marry actionable ; and is not every action of that kind a declarator of the marriage ; besides, that the certificate, if it is good for anything, is an acknowledgment of the marriage being then made, not a promise to marry ?