Continued presumed cohabitation of a man and his servant, letters addressed to her under the appellation of his wife, and valuable presents given to her by him, with some other circumstances, found to constitute a marriage.
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Mr Robertson, a merchant of some consideration, was sued in an action of declarator of marriage, by Helen Inglis, a servant girl, with whom he had formed a connection. He had taken her from her service, put her to school, and maintained her during an intercourse that subsisted uninterrupted for fourteen years.
In that time he addressed may letters to her, under the appellation of his dear wife, subscribing himself her loving husband; made her presents of a gold watch, gold rings, his father's and mother's miniature pictures, and other such like articles; was frequently seen to behave towards her with the affectionate and respectful manner of a husband; and, on one occasion, when in company with him, she was drunk to as his wife, he seemed to assent to that mode of address.
On the other hand, it did not appear from the evidence, that they were considered by those around them to cohabit as husband and wife; while it was proved, that she, at different times, towards the close of their correspondence, with solemn imprecations, declared that she had never had any carnal communication with him; and, in particular, that she did so to a clergyman, previously to her being admitted to the sacrament.
In an action of declarator, which was instituted by Helen Inglis upon Robertson's entering into another marriage, and in his defence, against which he did not deny concubitus,
The Commissaries pronounced this sentence, “Finds facts, circumstances, and qualifications proved, relevant to infer a marriage between the pursuer and defender.”
On a bill of advocation being presented by the defender, the Lord Ordinary took the cause to report; when it was
Observed on the Bench, The defect in the proof of cohabitation in this case, proceeds in some measure from the witnesses ascribing the intercourse between the parties, to a cause suggested by the disparity of their rank. That defect is therefore to be supplied by other circumstances, such as the so frequent writing of letters by the defender to the pursuer, his making presents to her of valuable family articles, and his assent to the address made to her on the occasion mentioned above.
The Court considered the cause as attended with considerable difficulty; but, in general, the letters seemed to be viewed as furnishing evidence of the marriage.
The Lords refused the bill of advocation.
Reporter, Lord Gardenston.Act. Rolland.Alt. Maconochie.
Fol. Dic. v. 4. p. 171. Fac. Col. No 262. p. 400.
*** This case having been appealed, the House of Lords, 14th February 1787, Ordered and Adjudged, “That the appeal be dismissed, and the interlocutors complained of be affirmed.”
