Scottish Court of Session Decisions

Elizabeth Craigie was the daughter of George Craigie, butler in a private family in the country, and she resided with her mother, Mrs Craigie, who lived in Edinburgh, and kept a lodging-house in Albany Street. George Craigie was seldom in the house. Edward Hoggan, W.S., lived in the house as a lodger; in September, 1834, a declarator of marriage was raised against him by Elizabeth Craigie, in the course of which a proof was allowed, and the following facts and circumstances appeared. In 1831, Hoggan began to have carnal intercourse with her. In consequence of this she became pregnant, and was delivered of a child in September, 1832. Her pregnancy was disclosed by her to her mother after it had reached a pretty advanced stage. The child was sent out to nurse at Hoggan's expense, and was maintained by him till it died in February, 1833. At the date of Elizabeth Craigie's delivery, Hoggan was in the country; but on returning to Edinburgh in December, 1832, for the winter, he went back to Mrs Craigie's lodgings. When he did so, Mrs Craigie urged him, as to a marriage with her daughter. Hoggan refused Mrs Craigie's requests on this subject, but he granted an obligation to pay to Elizabeth Craigie an allowance of £10 per annum. He continued to live in Mrs Craigie's house, and he resumed his carnal intercourse with Elizabeth Craigie. In the mean-time the bond for £10 was regularly paid by him, the last period of payment being March 16, 1834. At this time Elizabeth Craigie was again pregnant to him, and, in February preceding, when communicating to him her pregnancy, she had urged him on the subject of marriage. According to her own statement, she had not yielded to his embraces, at first, without a promise of marriage; nor had she done so, after the birth of the first child, till Hoggan again “promised to marry her, especially if she should have a child.” The alleged promises were verbal; they were denied by Hoggan, and there was no evidence of them. But, in reference to this statement, Elizabeth Craigie averred, that, when Hoggan was urged by her mother in December, 1832, and again when he was urged by herself in February, 1834, as to marriage, it was to publish the marriage which had been already contracted by promise, sequente copula. Hoggan on the other hand alleged, that, as there was no previous marriage, he was urged, on both occasions, to enter into one, which he refused.

On the 8th of March, 1834, Hoggan wrote and delivered the following letter to Elizabeth Craigie:—“ Dear Elizabeth,—Under existing circumstances, I feel anxious to provide for you after my decease, as far as in my power; and with that view I shall, at my decease, leave a declaration, acknowledging you as my lawful wife, which will secure to you the annuity payable from the widow's fund of writers to the signet. It is of the utmost importance that this intention should not be made known, as utter ruin, in that event, must fall on me; and were I to show or give you possession of the declaration, I would then be compelled to announce the fact to the collector of the widows' fund, within three months, under forfeiture of the annuity. The declaration, therefore, shall only be delivered at my decease, in the event of the most strict secrecy being adhered to regarding this communication; and I hereby declare, that in the event of the contents of this letter being made known to any other person or persons, except your father and mother, the letter shall be of no avail, and shall, in no manner of way, be held as binding, or used as a document against me. I am, &c.” This letter, at Craigie's request, was antedated, 25 th January, 1834.

On the same day, March 8th, Craigie wrote a letter to Hoggan in these terms:—“ Dear Edward,—I do hereby declare to take you for my lawful husband, in terms of the document which you have made out, and that I will not make it known to any but my father, mother, and those friends which I wish to be on terms of intimacy with. But should the fact become known, and I have no hand in it, I will not hold responsible, nor forfeit my claim. I will do all to conceal it. Yours, &c. Elizabeth Hoggan.” This letter she put into the hands of Hoggan, after taking a copy of it. He at first admitted, when examined as a haver, that he had “seen a letter from her in terms somewhat similar, which letter he put into the fire in her presence, on receiving it from her.” He afterwards admitted that the tenor of the letter was precisely or substantially what is above set forth, but still alleged that he had immediately burnt it in her presence.

About this time, George Craigie, the father of Elizabeth Craigie, had come to Edinburgh, and was staying in the house in Albany Street. He was ignorant, however, of the existence of any connexion between Hoggan and his daughter, until now, when Hoggan's letter was shown to him. He was allowed, in the peculiar circumstances, ¹ to be examined as a witness, and he deponed that, in a night or two after the letter of Hoggan was written, he solicited an interview with Hoggan, and told him “he was not satisfied with the stipulation of secrecy in the letter, and that the marriage should be made public. That Hoggan said that he wished ‘ it’ to be kept private for some time,” &c.: and that Hoggan, though he neither denied, nor expressly admitted the marriage, in terms, was understood by the deponent as merely desirous of keeping the marriage secret; and the deponent told him, that, unless the marriage was made public, he (deponent) would consult counsel as to raising a declarator of marriage. Ann Craigie, sister of Elizabeth Craigie, deponed that she also had asked for an intercourse with Hoggan, and had inquired “what he meant by the expression in his letter as to keeping the marriage private;” that he said he wished to keep it private, as it would hurt him to publish it; that she urged him “to make the marriage public,” but he refused; and that he never “contradicted” her for using the word “marriage” in this conversation.

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¹ Jan. 19, 1837, ante, XV. 379, which see.

On or about March 25, Elizabeth Craigie laid Hoggan's letter before counsel, and obtained an opinion that she could obtain a decree of declarator of marriage against Hoggan.

On 29th March, Hoggan wrote the following letter, and gave it to Elizabeth Craigie:—“ Dear Elizabeth,—It is most assuredly my intention to provide for yon to the utmost extent my means will permit, during the remainder of your life, while we are separate from each other. If I made any statement last night to your sister to the contrary, it was not my intention. Whatever allowance is made is gratuitous on my part, and any abuse or attempt to compel me to increase these payments, will be attended with a contrary effect, I propose giving you £50 this year, in full of all expenses of maintenance, payable at two terms, and the remaining years to be regulated by circumstances. The doctor and nurse's expenses to be paid. Yours, truly.” In this letter, as at first written, the word “ unmarried” stood in place of the words now printed in italics in the body of the letter. Elizabeth Craigie desired Hoggan to alter that word, and he struck it out and inserted the other words in its place. He stated on the record, that he gave her that letter, “that she might show it to her parents, and that the alteration in the letter was made to please her.” She took the letter, as altered, and kept it, but she was not satisfied with it; and, on April 1st, Hoggan wrote the following solemn declaration, and gave it to her:—“I hereby declare most solemnly before Almighty God, that I never granted a letter to any one, such as I have given to you, and cannot now grant any letter with such an obligation to any other person, as I consider myself bound by my letter,”

Robert White, W.S., being employed by Elizabeth Craigie as her lawagent, addressed a letter to Hoggan on April 2, requiring an immediate solemnization of the marriage, and offering to allow it to remain perfectly private for a reasonable time, but intimating that a declarator of marriage would be raised if her request was not complied with. The letter also stated, as was the fact, that two counsel of eminence had now given Opinions favourable to her right. On 3d April, Hoggan wrote to White that he was greatly surprised at his letter, and was not aware he had granted “any letters amounting to an obligation to marry;” and asking for a sight of his correspondence and the case and Opinion. After some farther correspondence, in the course of which Hoggan obtained for himself also the Opinion of a counsel of eminence, ^* that he could successfully resist a declarator; a summons of declarator of marriage was drawn by White and revised by counsel. On April 22, and before it was signeted, Elizabeth Craigie went to the office of her agent, White, and stated to him that Hoggan had agreed to acknowledge her as his wife and to give her a letter to that effect, on his getting up the whole documents. White endeavoured to dissuade her from taking the management of the matter into her own hands; but she stated that this would risk the opportunity of her getting the acknowledgment. He then gave her the extended summons of declarator, and the letters of Hoggan and other papers, which she carried away with her. At this time Hoggan was waiting for Elizabeth Craigie, by appointment, in the street, in the vicinity of White's office. He had all along been living in Mrs Craigie's lodging-house; but it was not averred on the record, or proved, that any sexual intercourse took place between Elizabeth Craigie and him, subsequent to March 8, when he executed the letter dated 25th January, until after this time. When Elizabeth Craigie joined him in the street, they went together to a hackney coach, in which they drove to South Queensferry. Elizabeth Craigie carried the papers in her reticule, and, in the inn at Queensferry, she put all her papers into Hoggan's hand. On this occasion, Hoggan deponed, when examined as a haver, that he “addressed a few lines to her:” that he “kept no copy of it, nor does he know what became of that writing.” On looking over the papers, Hoggan considered that there might still be other papers in White's hands which ought to be delivered up. He returned the papers to Elizabeth Craigie, who put them back into her reticule, which she herself carried, and he prepared the draft of a letter to White, which Elizabeth Craigie copied, in these terms, “As Mr Hoggan and I have now arranged the matter, I withdraw all proceedings, and request you to deliver the whole papers, originals, copies and drafts, still in your possession, connected with this business, to the bearer, who will settle your account. I am, &c.” This letter was signed with her maiden name, Elizabeth Craigie. Hoggan inclosed this letter in another, which he addressed to a friend of his own in Edinburgh, whom he requested to call on White, and pay his account, and get up the papers. He at the same time wrote to Mrs Craigie, the mother of Elizabeth Craigie, in these terms:—“To prevent the unnecessary and very unpleasant exposure which must have taken place, had the intended action gone on, Elizabeth and I have arranged and agreed to put a stop to all proceedings; and I hope, from the arrangements which I have made, there will be no cause to regret. We shall return to Edinburgh to-morrow or next day. Edward Hoggan.”

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* The late Andrew Skene, Esq. whose opinion was quite decided. The whole letters of Hoggan were laid before Mr S., but nothing was said as to the tenor of Elizabeth Craigie's counter letter, dated 8th March, except that on one occasion she offered a declaration to Hoggan, which he threw into the fire. The late Robert Jamieson, Esq. being subsequently consulted, on the same memorial, concurred, in the most decided terms, in the opinion of Mr Skene.

These letters were sent to Edinburgh by the coach which returned there after having conveyed the parties to South Queensferry. All the other papers or scrolls in White's hands were got up by Hoggan's friend, under this letter, and White's account was paid by him. In the afternoon of April 22d, Hoggan and Elizabeth Craigie crossed the Forth, and spent the night at Mitchell's inn, North Queensferry. They dined and supped together; they slept in the same bed, and next morning breakfasted together. They remained there till one o'clock, after which they drove together in a post-chaise to Burntisland. During their stay at North Queensferry, it was afterwards deponed by the waiter who attended on them, that they conducted themselves as husband and wife, and that he had considered them to stand in that relation. The parties dined at Burntisland, and, after dinner, Hoggan, who had again examined the papers at North Queensferry, took them once more out of the reticule, and looked over them, after which he put into the fire his letters dated January 25th, March 29th, and April 1st, and also the summons of declarator of marriage.

It was denied by Hoggan, that, on this occasion he had burnt any other papers than those specified; and he alleged that they were burnt in Craigie's presence and with her consent, having been given up to him absolutely, on his granting the note at South Queensferry. She alleged that the papers were burnt against her will; that other papers were burnt, and in particular that Queensferry note which she stated to have been in these terms:—“I shall no longer dispute your status as my wife, which I hereby acknowledge.” Hoggan denied that this was the tenor of the note, and alleged that the note merely contained the settlement of a pecuniary provision on Craigie, and that she had never given it back to him, but had herself subsequently destroyed it, as being injurious to her declarator.

After the papers were burnt, the parties did not separate. They slept together at the inn at Burntisland, and, next day, crossed the Forth to Newhaven, where Craigie staid till the 27th of April. During this time she avoided all communication with her parents. She and Hoggan then went to Glasgow, where they took lodgings at the house of a person who kept a respectable lodging-house there, and who deponed that when Hoggan took her lodgings she understood them to be taken for himself and his wife, and that she admitted none but married people into her house. While in that house they passed under the feigned name of Mr and Mrs Meikleham; they had the same bed and board, and behaved to each other as husband and wife. They went to the lodgings on a Saturday night. On Tuesday morning, Hoggan, whose brother was just dead at Dumfries, left Craigie at the lodgings, and went to Dumfries, from which he wrote a letter to Craigie under the address of Mrs Meikleham, dated May 1, 1834, in these terms:—“ Dear Elizabeth—After a very cold ride, I arrived at home in good time for dinner.On Wednesday I received a box from my tailor, and enclosed there was a letter from Mr M. (Hoggan's friend already mentioned), with one to you from No. 9 (her father's house). He informed me your sister had written to Mrs Gillespie (sister of Mr Hoggan), communicating the whole of our intimacy. Not a word has been said to me on the subject, neither do I expect she will broach the subject. I was detained at home all yesterday, and since my arrival at Dumfries to-day, I have not completed any arrangements for you, but I expect to do so to-morrow, when you shall hear from me. My only object for writing to-night is to send the enclosed (a letter from Mrs Craigie to Mrs Hoggan). Your own sense and feelings must guide you to answer the letter enclosed. I think you ought merely to state whether you feel yourself comfortable or not;—your determination of not seeing them for some length of time, and that your present absence is from your own choice, with my approbation. I hope you are moving about; do not be under any apprehension about me. I shall write more fully to-morrow, and enclose money, as I fear you will be ill-off. Write to me and let me know what you are doing.”

The letter inclosed in Hoggan's was not produced by Craigie. Hoggan alleged that “the arrangements” referred to in this letter, were for providing a quiet place for Craigie during her approaching confinement. Craigie alleged that they referred to his preparing to acknowledge the marriage among his friends who lived in Dumfries-shire.

On the receipt of the letters, Craigie seemed much agitated, and said to the servant of the lodging-house that she must go to see her husband, meaning Hoggan. She went accordingly to Dumfries, and Hoggan having learnt of her arrival there on a Saturday, immediately mentioned it to David Armstrong, writer, Dumfries, the friend in whose house he was then residing. Hoggan had told Armstrong that she was pregnant to him, in consequence of an illicit connexion between them, and that he was desirous of obtaining some residence for her until the period of her confinement was over. Armstrong went with Hoggan to the King's Arms Inn, Dumfries, where the Glasgow coach stopped, and there they saw Craigie, who, at their request, removed on Sunday to the Commercial Inn, Dumfries, as a quieter place. Hoggan, on the morning of that day, left Dumfries, and was absent for a day or two. Armstrong repeatedly called on Craigie at the Commercial Inn, in reference to procuring lodgings for her; and after she had been there till Thursday, her father, George Craigie, arrived from Edinburgh in quest of her. He afterwards deponed, as to his going to Dumfries, “that he went there for the purpose of bringing the pursuer home from that place, but he did not see her there;” that he sent a messenger to tell her “that a person wanted to see her,” but that a message was brought back that the pursuer, on receiving the message, left the house, and he returned next day to Edinburgh without making farther search for her in Dumfries. When Elizabeth Craigie heard of her father's arrival, she became much agitated, declaring that she was most anxious not to meet with him; and Wilson, the innkeeper to whom she stated this, deponed that she made use of the following words, or words of the following import:—“That if she were to meet with her father, the whole would be knocked on the head; but that if she saw the defender (Hoggan), whom she expected to meet at Beatock, that they would get the matter settled together.” And Wilson understood by the “matter being settled,” that Hoggan and she were to be married; and that if she met her father, her father might prevent the marriage. She immediately ordered a post-chaise, and left the Inn. Wilson, from what he saw of the parties at the Commercial Inn, did not consider them to be married. His wife stated that she had never passed a thought on that subject, but that Hoggan, who slept two or three nights at the Inn while Craigie was there, occupied a separate apartment from her's. Hoggan had left Dumfries on a previous part of that day, and Craigie, when in the post-chaise, sent for Armstrong, who went to her. Armstrong urged her to see her father, but she positively refused to do so. Armstrong then advised her to go to Beatock in the chaise, and go on in the coach from thence to Glasgow, and offered to supply her with the requisite funds, on condition of her doing so. She agreed, and received money from Armstrong, and went to Glasgow. After Armstrong returned home, from his last interview with Craigie, her father, George Craigie, called at his house and had a conversation with him. Hoggan, in examining Armstrong as a witness, asked him what George Craigie then stated “to have been his purpose in coming to Dumfries, and whether he made any inquiries about the pursuer.” The pursuer objected that this was mere hearsay evidence, and that, at any rate, Hoggan should have first cross-examined George Craigie on the subject. ¹ Hoggan answered that the conduct and statements of the pursuer's father were part of the res gesta; that they also entered into the habite and repute of the parties; and that, as George Craigie was liable to so strong a bias from relationship, Hoggan was not bound to have cross-examined him as to the statements he then made, though he was entitled to prove, by another witness now, the terms in which the statements were made at the time. ² The commissary examinator disallowed the question, and the Lord Ordinary affirmed the judgment. But the Court altered it, and allowed the question, observing generally that the circumstances of the case were extremely peculiar, and that the examination should be allowed, ad rimandam veritatem. On being examined, Armstrong stated that George Craigie had said his daughter would not see him; that he was much disappointed at this; that he had come for the purpose of ascertaining from herself her precise position with Mr Hoggan, and whether she was married to him or not; that his wife had not satisfied him on this point; that he asked Armstrong what he knew about it, and Armstrong told him there was no marriage; that George Craigie said “it had been a very distressing business from first to last, but that, bad as the worst might be, he would be satisfied if he learnt from the pursuer precisely how she stood with Mr Hoggan.”

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¹ Starkie on Evid., 36 and 42.

² Ibid. 36 and 62.

During Armstrong's intercourse with Elizabeth Craigie, he never considered her to be a married woman, nor did she ever say she was, or give him any reason to believe she was.

Soon after Craigie's return to the lodgings at Glasgow, Hoggan joined her there, and they spent several days together, in the course of which they repeatedly walked together arm-in-arm in the streets of Glasgow, and Hoggan, at least once, termed Craigie his “wife,” in speaking to the servant of the lodging-house. About the 22d of May they went from Glasgow to the village of Aberdour, in Fife, where Hoggan took lodgings in a respectable house, stating that they were for himself and his “wife.” He and Craigie occupied these lodgings for about ten weeks, passing under the name of Mr and Mrs Meikle. Hoggan generally crossed the Forth, to Edinburgh, early in the week, and returned to Aberdour on Saturday evening. The parties lived at bed and board, as man and wife do, and, in the opinion of two residenters in the village of Aberdour, were considered by the inhabitants there, during their whole stay, to be married persons.They never went to church together, however; and Hoggan wore mourning, while Craigie did not. About the end of May Hoggan executed a conveyance of stock in a public company, to the value of £600, to two friends as trustees for him. He alleged that the purpose of the trust was to pay to Elizabeth Craigie the annuity which he had promised her; but, on asking one of the trustees as a witness, what was the purpose for which he agreed to act as trustee, the commissary examinator disallowed the question. On leaving Aberdour, in August, Hoggan took lodgings in a respectable lodging-house in the suburbs of Edinburgh, where he and Craigie spent two weeks, sleeping together, and being considered by the mistress of the house and her servant, as man and wife. During this period Hoggan wore mourning, and Craigie did not.Hoggan then took a flat of a house in Warriston Crescent, Edinburgh, and on 8th August wrote to Mrs Craigie the following note:—“Mrs Craigie will receive herewith the keys of a flat in No. 4, Warriston Crescent. It will be obliging if Mrs C. will give the enclosed £2 to the servant to purchase coals, and other materials requisite for cleaning the house, and to pay for sweeping the kitchen and parlour chimneys if requisite.—Thursday morning.” Hoggan directed the house to be painted, before occupying it, and he took Craigie to the painter's premises in order that she might select the colour which she preferred. It was the impression of the painter's servant who was present at that time, that he treated Craigie as his wife, and called her Mrs Hoggan. When the house was furnished and prepared, Hoggan carried Craigie there. She slept that night in the house, but he neither dined nor slept there. Next day Craigie left the house in consequence of Hoggan having peremptorily refused to acknowledge her as his wife, or to allow her to be addressed as such by the servants. Next month Craigie was delivered of a daughter, and immediately afterwards she raised her declarator of marriage.

Five notes were produced by Hoggan, which he alleged to be holograph of Craigie, and to have been left for him, in his room, at an early period of their sexual intercourse in 1831 and 1832. They were in these terms:—“Before 7, Greenside St. Sdy. you will be in be there by 1 2 past 6—at a little after before 7.”

2.—“Clyde Street at 1 2 past 7 to-night.”

3.—“Can you see me to-night at 8—or tomorrow night at 7—let me know.”

4.—“If you are not better engaged—meet at a quarter from 7 Cl. St. if not, tell when you see me at my own house.”

5.—“So you have not been long in turning your coat,—it is false about your being engaged—be at Cl. St. before 7.”

Hoggan produced two engravers, who, on comparing these notes with genuine writings of Craigie, concurred in deponing that the whole were written by the same hand; and he averred that, on looking at them together, this was evident from inspection. In explanation of the tenor of the notes, he averred that Craigie and he were then in the habit of meeting in places of bad fame, and that these were some of the notes of Craigie fixing assignations. Craigie did not produce any counter evidence by engravers or otherwise, but she denied that the notes were hers, or that the evidence of engravers, being so inferior a species of proof, could establish them to be so; ¹ and she also contended, that even if they had been hers, Hoggan had now put a false construction on them, as they were truly immaterial, and certainly were never used in reference to assignations in improper places.

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¹ Melville, March 21, 1820-2; Murr,281. 2 p

Copies of Hoggan's letters had been kept by Craigie, and, in the course of the process, he admitted the tenor of them.

In reference to these circumstances, it was

Pleaded by the defender—

Although marriage was viewed by the law of Scotland as a civil contract, and capable of being perfected by the mere consent of the parties, yet it was a contract of the most momentous import, and nothing less than a full consent, deliberately given by both parties, could establish it. In the present instance the defender, who alleged that, though designed W.S., he was never engaged in business, had been artfully circumvented by the pursuer and her family, and betrayed into indiscreet correspondence with the pursuer; but there was nothing which amounted on his part to a consent to marriage, or which could have induced the pursuer to believe that he so consented.

The origin of the connexion was clearly illicit. It was when residing in the lodgings kept by the pursuer's mother, that the defender's sexual intercourse with the pursuer began in 1831. The pursuer was much inferior in condition to himself; and, after she was delivered of a child in 1832, the defender granted her an obligation for an allowance of £10 per annum, which continued to be paid till March 16, 1834, the last date when payment was made. He never could have tendered such an allowance to her, if she had been any thing but his mistress; and she never could have accepted it, if she had been his wife. After this obligation was granted, the pursuer's mother allowed the defender to continue to reside in her lodgings, and the sexual intercourse between the parties was renewed. In its origin, therefore, it was proved that the intercourse was illicit, and that Craigie's mother was privy to it. But if additional evidence on this point were necessary, the five short notes of assignations made by the pursuer supplied it, as they could not be explained in any other way, and both their style, tone, and their substance, afforded real evidence of the nature of the connexion then subsisting.

In these circumstances, though the pursuer and her friends might desire to betray the defender into a marriage, nothing was more unlikely than that he should either consent to marriage, or do any thing which could justify the pursuer in saying she was led into an honest belief that he so consented. It would require the clearest proof to establish either the one or the other of these things; and without it, no marriage could be established. ¹ That proof consisted partly of written, and partly of other evidence. And, first, of the written evidence.

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¹ M'Innes, June 25,1782 (12683); Taylor, Feb. 16, 1787 (12687); M'Lachlan, Dec. 6, 1796 (12633); Stewart, Dec. 6,1833 (ante, XII. 179).

The first letter, dated 25th January, was granted on March 8, 1834, being eight days prior to the last payment of the allowance for her prostitution. It began by stating an anxiety “to provide for you (pursuer) after my decease;” and then stated that “with that view I shall, at my decease, leave a declaration acknowledging you as my lawful wife,” to secure the annuity from the widows' fund of the Writers to the Signet. The declaration of acknowledgment, here promised, was only what was, de futuro, to be left at his decease. Whether this would be good or bad in law, if he died and left such declaration behind him, was not the question; the only question was, whether this was a de presenti consent to marry, or could reasonably be so regarded by the pursuer; which it clearly was not. The rest of the letter corresponded with this, as it stated the defender's desire “that his intention should not be made known, as utter ruin, in that event,” must fall on him; and that, if he were “to show or give you possession of the declaration,” he would be compelled to “announce the fact to the collector of the widows' fund.” These words necessarily meant that the letter itself was not the declaration, and that only the delivery of the declaration, when executed, would complete the marriage. And the end of the letter expressly stated that “the declaration shall only be delivered at my decease, in the event of the most strict secrecy being adhered to, regarding this communication,” and provided that the letter should not even bind him to leave the declaration, unless that condition was observed. This letter, therefore, contained no de presenti matrimonial consent; ¹ and accordingly, the pursuer understood it so, and took payment of the allowance of £10 in eight days thereafter, which allowance was the wages of prostitution.

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¹ Anderson, Nov. 13, 1795 (12690).

As to the fact that the letter was ante-dated, it was immaterial, because no date was, or could have been given to it, which, in the slightest degree, affected its validity or import as a matrimonial engagement. And as the date did not correspond with the procreation of the child, the pursuer could not even allege any plausible ground for her attaching importance to its date, either through her ignorance of the law of legitimation per subsequens matrimonium, or otherwise.

In regard to the pursuer's answer of March 8, that “I do hereby declare to take you for my lawful husband in terms of the document which you have made out,” the defender had invariably stated that he had never received and kept it, but had put it into the fire, in the pursuer's presence, as soon as he had read it. His admission of having received it at all was intrinsically qualified by this statement. ² And the whole facts of the case corroborated it; because, if he regarded her letter as implying immediate matrimony, it was directly contrary to his own admitted letter of the same date, and placed him in the position which, in that letter, he said would expose him to “utter ruin.” And besides this, the pursuer had subsequently taken the wages of prostitution, which was altogether incompatible with the defender's having, in the mean-time, accepted any letter from the pursuer, acknowledging marriage between them. And, in any view, as this letter merely took the defender as husband “in terms of the document which you (defender) have made out,” it could only be read as agreeing to accept a declaration to be made at a future period, and left at his decease; which was exclusive of any de presenti matrimonial consent.

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2 Tait on Evid. 294; 2 Starkie on Evid. 17.

The defender's subsequent letter of 29th March was perfectly consistent with that dated 25th January, as it merely announced an intention to provide for the pursuer, and expressly declared that “whatever allowance is made is gratuitous on my part.” And the specification that the defender was to pay the pursuer's inlying expenses, was also incompatible with the idea that they were married persons, as, in that case, he was legally bound to maintain her, and to pay all necessary expenses, including these. Besides this, the letter, as originally framed, intimated an intention to provide for the pursuer “while unmarried.” This was an explicit statement to the pursuer that, up to that date, the defender considered that no marriage had taken place; and if she wished honestly to enter into the contract of marriage, and not fraudulently to entrap the defender into the use of equivocal words, for the purpose of afterwards using them in a sense to which he never assented, or was understood to assent, the pursuer should have got other words substituted for these, than the mere statement “while we remain separate from each other,” which, in its more natural and proper sense, merely meant, while they were not united; and these words were so meant, used, and understood on both sides. In the circumstances, the onus was on the pursuer to prove the conversion of illicit intercourse, into that of marriage; and she could not do so, by merely betraying the defender into the use of ambiguous expressions.

The subsequent solemn declaration of April 1, that the defender had never granted “a letter to any one, such as I have given to you, and cannot now grant any letter with such an obligation to any other person, as I consider myself bound by my letter,” was consistent with every plea now stated by the defender. Because, if he was bound, at his death, to leave a declaration acknowledging the pursuer to be his lawful wife, he neither had granted, nor could lawfully grant such a letter to any one else. And the declaration was important, as it proved that, at its date, both parties looked on the letter dated 25th January as that which constituted the subsisting obligation between them, such as it was; and that obligation was merely as to a future and contingent declaration of marriage. It might indeed be said, that an attempt by the defender to bequeath the status of widowhood to a person who had not been his wife, was unfair towards the widows' fund. But as he was continuing a series of annual payments, through life, to that fund, and might perhaps at a future time make the pursuer his wife, he considered himself justified in granting the obligation. At all events, the question was not whether his letter was justifiable as regarded the widows' fund; but whether it contained a de presenti consent to matrimony, which it did not.

The written evidence, therefore, entirely failed to prove either that the defender had consented, or that the pursuer had understood him to consent, to marriage. For, as to the note which he gave her, on getting up the documents at South Queensferry, that was merely an obligation to provide her in an annuity, considerably larger than the former allowance of £10; and accordingly he had taken steps for this purpose by placing 30 shares of stock belonging to him in a public company, and amounting in value to £600, in the hands of trustees who were to pay her the interest. He had proved the investment of this stock in trustees in May, 1834, and the pursuer alone had stopped him from proving by one of the two trustees the trust-purpose.

As to the terms of the Queensferry note, the pursuer had herself destroyed it, subsequently, as being fatal to her claim of marriage. The allegation that that note contained an acknowledgment of her as his wife, was not only quite unsupported by evidence, but was contradicted by the real evidence of the case, which showed that the defender thought it would be utter ruin to him to become bound by entering into such marriage; and by the fact that he held the Opinion of one of the most eminent counsel that he might safely resist her declarator. Besides this, it would have been of no avail to him to get up the papers from White, and particularly the additional papers for which the mandate was written from South Queensferry if he was granting a note to the pursuer, acknowledging her as his wife. If he did so, he was completely in her power, and he lost every thing, and gained nothing by such arrangement. Whereas, on the other hand, if he merely stipulated in the note to pay her an increased annuity, that was consistent with all the real evidence of the case, and with the actual position of the parties relatively to each other. And such was the tenor of the note, which was subscribed by the pursuer with her maiden name, Elizabeth Craigie, a circumstance, decisive in itself, but particularly so when contrasted with the signature, Elizabeth Hoggan, which she had formerly put to her letter of March 8th.

In regard to the other evidence in the case, it was quite insufficient to establish matrimony, either apart from the written evidence, or in connexion with it. The travelling of the parties in company with each other made it necessary, as they chose to frequent respectable inns and lodgings, that they should not disclose the fact of their being unmarried; and they had adopted feigned names, merely as a disguise to cover their true connexion, which continued to be illicit. There was not the well founded, or general habite and repute, among persons possessing sufficient means of observation, which alone could establish a matrimonial status on the foundation of habite and repute. ¹ Many of the persons who had occasion to see the parties, and to judge of the behaviour of the pursuer as well as of the defender (such as Armstrong, Wilson, and his wife), thought them to be merely a man and his mistress. And, in many important particulars, the conduct of the pursuer could be explained on no other supposition; such as her remaining at Newhaven for some days, after crossing from Burntisland, without communicating with her parents; her not wearing mourning when he did so; her anxiety to shun an interview with her father at Dumfries ; her fear that his arrival would spoil every thing, &c.

_________________ Footnote _________________

¹ Cuningham, July 20, 1814, 2 Dow's Rep. 483.

There was no evidence of any promise of marriage, on the faith of which the pursuer had yielded to the embraces of the defender. Their connexion began illicitly, and, even if a promise had, in the course of it, been given, and had been followed by subsequent sexual intercourse, it had been decided ¹ that that did not make a marriage, because, in these circumstances, whatever had followed on the promise, in point of time, nothing had followed on the faith of the promise. But independently of this, as it was admitted that the whole letters which were alleged to contain the promise, were stipulated to be given up voluntarily by the pursuer, on condition of getting the South Queensferry note from the defender; and as there was no evidence of the parties having slept together, subsequently to March 8, when the first of the letters was granted, until the night when they crossed to North Queensferry, no copula had ever followed on the faith of any thing contained in these letters.

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¹ Macdowall, 1796; Fergusson's Rep. 163.

In dealing with the case, it was important to keep in view that the evidence of the pursuer's father and sister stood so strongly tainted with partiality, and the bias of affection and relationship, that it would be subversive of justice if it was regarded otherwise than with the utmost distrust and suspicion; especially as they spoke to their recollection of conversations, and words, as to which there was no check on them. But their evidence, such as it was, was not material.

If, therefore, the written correspondence left both parties in the position of mere paramours, and in the understanding that they were so (which was the genuine import of that correspondence), nothing had taken place in the conduct or behaviour of the parties which could change that relation, and substitute marriage in its stead. The defender, therefore, ought to be assoilzied from the action.

Pleaded by the Pursuer—

If both parties consented to marriage, they thereby became married persons, equally, whether the consent was signified by writ, or by parole, or by conduct and behaviour such as necessarily implied consent. ² And in this case, as the defender was a professional man, and bred to business, every presumption as to their intercourse should be construed favourably for the pursuer; and, in particular, if he addressed writings to her which were intended by him to induce, and which did naturally induce, the belief in her mind that he consented to a marriage, he was not entitled to avail himself of any reserved understanding in his own mind, or of any studied equivocation as to the words used by him. ¹

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¹ Macadam, May 21, 1813, 1 Dow, 189; Honeyman, July 9, 1830 (Opinion of Lord Pitmilly); Dalrymple (Opinion of L. Stowell); Dodson's Report.

² Voet ad Pand. L. 23, T. 2, § 2; 1 Ersk. 6,5.

The defender had promised marriage before the pursuer yielded to his embraces in 1831, and he renewed the promise before their sexual intercourse again began in 1832–3. As these promises were privately and verbally given, the pursuer had no means of proving them. But sufficient evidence subsequently existed to establish a marriage, independently of this. By the letter granted on March 8, but antedated January 25, the pursuer understood, and was led to understand that she was acknowledged as the defender's wife. He bound himself, at his death, “to leave a declaration acknowledging you as my lawful wife, which will secure to you the annuity payable from the widows' fund of the Writers to the Signet.” On the supposition that the parties were already married, but that no legal evidence of marriage existed, every word of this obligation was fair and just on the part of Hoggan towards the pursuer. In that view, it merely bound him to take care to leave evidence of the existing relationship of marriage. It was not a mere promise to contract marriage at a future time; but, to leave a declaration, acknowledging a marriage which was previously contracted. If the words could be read as importing that no marriage yet existed, and that the defender was merely to leave a mortis causa declaration to take effect after his death, then his purpose in writing the letter was fraudulent in a high degree. Because it was well known that such a writing never could entitle the pursuer to the status of his widow, or to a provision as such, if she had not first been his wife; and he was therefore attempting either to cheat her, or to cheat the widows' fund, unless the letter was read, as the pursuer read it, and as implying that marriage already existed between them, though not yet acknowledged.

The threat, in the close of the letter, that it would be of no effect unless the pursuer observed secrecy, was quite consistent with this construction, as the defender might perhaps suppose, that, even though marriage did actually exist between them, the pursuer might find it difficult to establish a claim on the widows' fund, if he resolved to frustrate it.

The pursuer was entitled to read the letter on the assumption that it was written without any fraudulent purpose towards her; and the defender had no right to object to her doing so. Upon that footing, she understood it to import an acknowledgment of the existence of marriage between them. And this was enough for her, whether the pursuer had any reserved intention or meaning, in his own breast, respecting the construction which he might choose to give to the letter. And in reference to this belief created in the pursuer's mind, the circumstance of antedating the letter at the pursuer's desire was material, as the only intelligible explanation of that circumstance was, that she supposed that the farther back the acknowledgment, implied in it, was carried, it placed her on a more respectable footing.

The sense in which the pursuer viewed, and was led to view this letter, was farther apparent from the circumstance that it was granted in consequence of her soliciting the defender to give her a satisfactory acknowledgment. Even taking it on the footing stated by the defender, that she asked him, not to merely acknowledge, but to contract, a marriage with her, it still followed that his granting her a letter in the terms quoted, was done to make her believe she held the status of his wife.

And the pursuer had clearly evinced to the defender the sense in which she understood the letter, as, on the same day, she addressed to him a letter, declaring “to take you (defender) for my lawful husband, in terms of the document which you have made out.” The defender admitted that he received this letter from the pursuer; and his allegation that he then destroyed it in her presence was denied, and was not proved. And he was not entitled to say that his admission was effectually qualified by that allegation; the allegation was extrinsic and required to be proved aliunde, especially as Ann Craigie, the pursuer's sister, proved the terms of the letter, independently of his admission. But this alone was conclusive of the acknowledgment of marriage.

There was another part of the evidence, however, which bore strongly upon this subject. The defender had had interviews separately both with the pursuer's father, and her sister, where this letter, and the marriage of the parties was the subject of anxious consideration. And both of these witnesses deponed that they understood the import of the conversation to be, that the defender acknowledged, expressly or by inevitable implication, the existence of a marriage, and merely desired to conceal it for a time. This tallied so well with the other circumstances in proof, that there was no just room to doubt the accuracy of the testimony which was given very cautiously and candidly by these witnesses, whose characters were wholly unimpeached.

In addition to this, the defender's letter of 29th March was, of itself, conclusive. The pursuer's parents were unsatisfied with the letter dated 25th January, particularly the secrecy required to be observed, by the pursuer who was pregnant. She therefore urged the defender to grant her a more satisfactory letter, and he wrote that of 29th March. She had much cause to be displeased with its terms, and in particular, as it originally contained a promise to provide for her “during the remainder of your life, while we are unmarried,” she saw that these words were highly objectionable, as they falsely imported the non-existence of the marriage-relation. She remonstrated with the defender, who could not deny the justice of her objection, and, at her desire, struck out these words and, in their place, substituted, “while we are separate from each other;” and he had admitted that he did this, at her desire, and “to please her.” These last words were correctly applicable to married persons living apart, or concealing their status, as the defender wished the pursuer for some time to do; and she therefore did not object to them. But it was impossible to explain the history of this alteration, except on the footing that the pursuer was asserting her right and status to be that of the defender's wife, and was entitled to object to his saying or doing any thing inconsistent with that relation; and that he acknowledged this.

This was strongly confirmed by the solemn declaration, dated April 1, in which the defender called God to witness that he never granted to any other, such a letter as he had granted to the pursuer, and that he could not grant such a letter to another. This was consistent with the view of the pursuer, but utterly repugnant to that of the defender, who could not be allowed to say that he was only contemplating the continuance of an illicit intercourse, to be effected by means of perpetrating a gross fraud, and that it was this which he solemnly called on God to witness.

Independently of this, the note which he gave to the pursuer at South Queensferry on April 22, was, of itself conclusive, as it explicitly acknowledged the pursuer to be his wife. He now denied the terms of it, but it was sufficiently proved that they must have been as alleged by the pursuer. The pursuer had obtained an opinion of counsel that she would succeed in her declarator of marriage. Her summons was drawn and ready to be signeted, when the defender induced her to call up these documents from her agent, and go off with him to South Queensferry. It was not denied that she was seriously bent on establishing the existence of a marriage, and, in these circumstances, no motive would have induced her to take these steps, except that which the defender presented to her, in the promise of a note explicitly acknowledging her as his wife. And when she got up her papers from her agent, she told him that it was on this express condition that she was to give up her papers to the defender, and she resisted her agent's advice against managing the matter herself, because, as she said, she feared that any delay might lose the opportunity of obtaining this explicit acknowledgment. As these words were used by her in the moment of getting up the papers, and while the defender was waiting for her in the street, they formed part of the res gesta, and were important evidence of what was really done and intended by the parties. On reaching South Queensferry, the defender did put a note, to the effect promised, into her hands, and she then showed him all her papers. He carried her across the Forth with him, and next day, burnt these papers without her consent, and also, as the pursuer alleged, the note he had just before given to her. As he burnt the papers for the sole purpose of destroying evidence, he took care to burn that note along with the rest, and, in the circumstances, the pursuer was entitled to every presumption in her favour, ¹ and could now therefore found on the note, and the terms of it, as being sufficiently established against the defender, and as being conclusive of the cause. The mere circumstance of the pursuer having signed her name to the mandate as Elizabeth Craigie was not material in itself, being merely accidental.

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¹ Honeyman, July 9, 1830 (ante, VIII. 1039).

After the papers were burned at Burntisland the pursuer considered herself at the defender's mercy, but, as he treated her as his wife, she thought it best to remain with him and attend to his wishes, in the hope of obtaining erelong a public recognition of the marriage. It was on this account, that, on crossing to Newhaven she did not communicate with her parents; and that, at Dumfries, she was afraid of meeting her father. Subsequently to this, however, as the tenor of all the pursuer's letters had been admitted by him, in the course of the present action, the pursuer had established her case, independently of the note, which he still refused to admit.

But even laying aside the written evidence, the marriage was sufficiently established by parole. The defender had expressly called the pursuer his “wife” to the servant of the lodging-house in Glasgow, and to the mistress of the lodging-house at Aberdour. They had lived together at Glasgow, and again for about 10 weeks at Aberdour, as man and wife. Though they passed under a different name, that did not affect the fact that they held themselves out to all parties, and behaved to each other, as man and wife. And they were so reputed at Glasgow in May; at Aberdour till August; and at the lodgings in the suburbs of Edinburgh thereafter. After this, the defender took a flat of a house in Warriston Crescent, and furnished it, and he placed the pursuer there. He had applied to the pursuer's mother to assist in furnishing the house, which was only reconcilable with the view that there was a marriage-relation established between the pursuer and himself. In the course of furnishing it, he behaved to the pursuer as his wife, and expressly called her so at the painter's shop. And, so fully did she rely on being treated as his wife, that she left the furnished house, on the day after she entered it, solely because the defender had then improperly changed his mind, and refused to acknowledge her as he was bound to do.

There was still a separate ground, on which alone the marriage would be sufficiently established if it were necessary to resort to it; the letters of the defender, especially that which was dated 25th January, amounted, in any view, to a promise of marriage; and it was admitted, that, on crossing at Queensferry, the parties slept together that night, before any of the documents were destroyed. Besides this the defender failed to prove that the pursuer had ever released him from his obligation to marry her, and, therefore, their whole subsequent cohabitation and intercourse fell within the rule of a promise sequente copula. But that was enough to establish marriage by the law of Scotland; and therefore the pursuer ought to prevail in her declarator of marriage.

The Lord Ordinary pronounced this interlocutor:—“Finds facts, circumstances, and qualifications proved, relevant to infer marriage between the pursuer and defender: Finds them married persons, husband and wife of each other, accordingly: Therefore, ordains the defender to adhere to the pursuer, and to cohabit with, treat, cherish, and entertain her as his wife, in terms of the conclusions of the libel, and decerns: Finds the defender liable in expenses; and allows an account thereof to be given in, and to be taxed by the auditor. Farther, and in regard to the conclusion for aliment in case of non-adherence on the part of the defender, appoints the cause to be enrolled, that parties may be heard thereupon.” ^*

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* “ Note.—The question will be found to depend in a great measure, if not entirely, upon the import of the writings which passed between the parties in March, 1834. The Lord Ordinary has felt it to be one of considerable difficulty;—a difficulty arising from the very equivocal mode of expression used, and as he cannot help thinking intentionally used, by the defender in these letters. They are certainly not the letters of a person intending to declare, without subterfuge or ambiguity, a present intention to contract marriage,—merely qualified with the condition that it should be kept secret. They have as little the appearance of letters unequivocally intimating to the party to whom they are addressed, that the connexion had been, and was to continue illicit, and undertaking merely an obligation for a pecuniary provision. There is, however, yet another object which the writer might have had in view, viz. to create an impression on the mind of the party receiving them, that they amounted to a declaration of marriage, while the mode of expression left the means of escape, if he found it convenient to deny their effect. The Lord Ordinary has found himself compelled to adopt the last supposition as the true one. But the mere circumstance of the defender's intention in this particular, is not conclusive. The questions will still remain,—1st, Whether the letters did admit of being construed as present declarations; 2dly, Whether the pursuer did receive and construe them as such; and, lastly, Whether the defender knew that that construction was put upon them by the pursuer. For if these questions are answered in the affirmative, the defender will be bound, and cannot be allowed to plead the concealed and fraudulent intention, with which the writings were framed, in defeat of the meaning put upon them, and known by him to be so put upon them, by the other party.

“The first letter, bearing date the 25th January, 1834, but of which the true date is admitted to be the 8th of March, is strongly indicative of some such intention as that already alluded to. In fact, it is impossible for the defender to give to it, according to his own view, any reasonable or consistent meaning. It sets out, no doubt, with stating his anxiety to provide for the defender, and promises to leave at his decease, a declaration acknowledging her as his lawful wife. It then assigns as a reason for not giving her instant possession of the declaration, that he would be compelled to announce the fact to the collector of the Widows' Fund. Looking at the terms of the existing statute on the subject of that Widows' Fund, it may well be questioned how far this last representation was correct. But what is of more importance,—it is nearly certain that the defender must have been satisfied at the very time, that the obligation, according to his construction of it, was absolutely worthless. The defender is a writer to the signet, and could not be ignorant on a point which, even amongst the comparatively uninitiated, may be now considered as a matter of notoriety; that unless marriage is contracted during lifetime, the mere declaration left at death, will not confer the character of widow. If the defender then had a private object in this letter, different from that of an admission of marriage de presenti,—it was not so much the object of defrauding the Widows' Fund, as that of defrauding the young woman he was addressing, not only of her belief of marriage, but of her hopes of a provision;—but while this letter does not present any very clear or consistent meaning if strictly construed, it might, when read more loosely, very easily create the impression that it admitted the existence of the marriage at the time, while it merely postponed the granting of a document in evidence of that existing marriage, in consideration of the defender's motives for keeping the marriage secret. Though far from being explicit, it is a letter which might have been written by a party, who, knowing and admitting that he was married, stipulated only for the delay of the delivery of a document, which would

once enable the other party to declare it. And with reference to this last construction, the circumstance of the antedating of the letter is not immaterial. It is admitted that this was done to please the pursuer; and as she was then pregnant, there was an intelligible object in the antedating of the letter, if it referred to an existing marriage;—while, according to the view of the letter taken by the defender, the antedating is utterly inexplicable and unmeaning.

“But that letter must not be taken singly, it must be combined with the rest of the correspondence. It was followed by the letter from the pursuer of the same day, commencing;—‘Dear Edward,—I do hereby declare to take you for my lawful husband, in terms of the document which you have made out,’ &c. One fact regarding this letter is admitted, viz., that it was delivered to the defender, although he denies that he retained it, but avers that he objected to it, and threw it into the fire in the presence of the pursuer. Upon these last points, there is no evidence on either side,—certainly no conclusive evidence. For the Lord Ordinary cannot view in that light the inferences drawn respectively by the parties, from the statements made to counsel, and the correspondence which took place relative to the opinions of those counsel. The admitted fact, however, of such a letter being written, and delivered to the defender, is evidence of the meaning attached by the pursuer to the preceding letter of the defender, and is also evidence of the communication by her to the defender of the meaning so put upon it; and it would rather appear to the Lord Ordinary that the defender was bound to produce something more conclusive than his own mere averment of his rejection of that letter. As the correspondence did not stop there, the continuance of it clearly allowed the opportunity of placing this matter beyond the reach of doubt. But it so happens, that the remaining part of the correspondence fortifies the presumption that the pursuer's letter had not been repudiated by the defender, and is, according to every probability, nearly irreconcilable with his statement upon this subject.

“The next letter, that of 29th March, 1834, begins,—‘ Dear Elizabeth, It is most assuredly my intention to provide for you to the utmost extent my means will permit during the remainder of your life, while we are separate from each other,’ and it is admitted that the last member of this sentence stood originally ‘while unmarried;’ and was altered to the present form of expression, on the application of the pursuer, and that the alteration ‘was made to please her.”

“Now, it appears to the Lord Ordinary that this was just the occasion on which the defender, if he truly had rejected the pursuer's letter of 8th March, must have adhered to the expressions originally used. It was the very opportunity for taking off, by a written qualification or denial, the effect of any erroneous construction put upon his former letter by the pursuer. Yet, instead of taking that opportunity, he agrees to the substitution of a certain form of expression, which, contrasted with that struck out, amounts very nearly to complete evidence of acquiescence in the view taken by the pursuer in her letter of the 8th March of their relative situations. As it is admitted then, that the pursuer's letter of the 8th March was written and delivered to the defender, as there is no evidence of his rejection of it, but on the contrary, the adoption by him of a phrase in the letter of the 29th, nearly irreconcilable with such rejection; there is a preponderance of evidence in support of the presumption that her letter of the 8th had been received and retained without objection.

“Next comes the letter of the 1st April:—‘I hereby declare most solemnly before Almighty God, that I never granted a letter to any one such as I have given to you, and cannot now grant any letter with such an obligation to any other person, as I consider myself bound by my letter.”

“The defender seems to think that this letter may be easily disposed of. According to his view, it merely stated ‘that he considered himself bound to abide by, and fulfil the obligation which he had granted by the letter dated in January;’ which again, according to him, meant nothing more than to enable her to go against the fund of the society of Writers to the Signet for the annuity, ‘the question being here, not whether this was a proper or improper purpose, but whether it was not plainly the meaning of the letter.’ The Lord Ordinary must demur to this reasoning. In the first place, the words are not merely that ‘he will not grant,’ but that he cannot grant such an obligation to any other person—words which clearly imply an indissoluble or irrevocable engagement. Secondly, the previous correspondence admitting at least by possibility of this last construction, it being proved that such a construction had been put upon it by the pursuer, and there being a strong presumption that he had acquiesced in that construction, the solemnity of the adjuration in the letter of the 1st of April, enters deeply into the question as a question of evidence of intention. That the defender should call God to witness a legitimate but secret engagement, and which for this last reason, might require and justify such an appeal, was perfectly natural and proper. But is any man to be allowed to state in a court of justice, that his meaning was only to call Almighty God to witness his engagement to provide for his associate in an illicit intercourse through the medium of what he himself admits to be a gross fraud? Can it be supposed that the pursuer could have viewed it in that light? Is it not, on the contrary, quite clear that the pursuer was entitled to consider an obligation so solemnly attested, as importing in the first place, a legitimate engagement, and at all events, an irrevocable engagement, neither of which condition, it will be observed, can be possibly applicable to it, as explained by the defender?

“Such, then, being the letters, it only remains for the Lord Ordinary to consider the evidence of the pursuer's father, and sister, whose examination has been authorized by the Court, in the special circumstances of this case. It is needless to state, that witnesses so circumstanced must be presumed to have a strong bias; and that their testimony, if unsupported, a fortiori contradicted, must be received with great hesitation. The testimony of these witnesses, however, seems to stand clear of any imputation on the score of appearance of partiality, and is in all its essential particulars, consistent with the inferences which the Lord Ordinary has thought himself entitled to draw from the letters themselves. By the testimony of both these witnesses, it is clear that they conceived and expressed that belief to the pursuer, that it was the secrecy of the marriage, and not the postponement of it, which they understood to be his object in the letters. And it is equally clear, according to their evidence, that that view was admitted, or at least acquiesced in, by the defender. Upon the whole, then, the Lord Ordinary has formed the opinion, that the letters, combined with the parole proof by the pursuer's father and sister, afford sufficient evidence of a de presenti declaration of marriage.

“As to the remaining part of the parole proof, and the whole proceedings of the parties, after the raising and abandonment of the declarator of marriage, there seems to be a great difficulty in connecting them with the correspondence hitherto considered. This arises from the defect of the evidence of the conditions on which the action was abandoned. The defender alleges, that it was in consideration of his becoming bound to grant the pursuer a pecuniary provision; while it is averred by her, on the other hand, that she agreed to abandon the action, and give up the documents on which it was founded, solely in consideration of his engaging to give her an absolute and unequivocal acknowledgment of her status as his wife.

“As a mere question of probabilities, the Lord Ordinary has no hesitation in avowing his belief in the latter statement. Even in the most trivial question of pecuniary obligation, a party, a professional person, who contrived to transact with his adversary, an inexperienced young woman, under the cautious seclusion of her parents and legal advisers, could not well complain of any unfavourable construction being put on his conduct. But these unfavourable presumptions are incalculably stronger in the present case, where the defender must, from the nature of his connexion with the pursuer, have had a great influence over her, and where, having got her into his power, and having obtained, through her means, possession of all the documents considered to be of importance, he induced her to abandon, by her own unadvised act, that legal proceeding which she had commenced under the sanction and council of her natural guardians, and legal advisers. But whatever may be the probabilities, the Lord Ordinary is of opinion, that there is no sufficient proof of the terms on which the pursuer agreed to give up the action of declarator.

“And it may be observed, that this circumstance goes far to exclude the second or alternative view of the case maintained by the pursuer, viz.—that the continued connexion between the parties, after they left Edinburgh on the 22d of April, 1834, when combined with the letters of the defender, must at any rate constitute a marriage, by the force of the promise followed by copula.

“These letters, viewed as a declaration de presenti, were beyond the reach of any recal or surrender by the parties; but if viewed as constituting merely a promise, that promise admitted of being retracted on the one hand, or abandoned on the other; and no copula following on such retraction or abandonment, would be of any relevancy in a question of marriage. Now here it is admitted that the letters were given up; and as there is no sufficient proof of the terms on which, according to the pursuer, they were so given up, viz.—in consideration of an absolute acknowledgment, it does appear to the Lord Ordinary, that there is here a defect in one indispensable link of the pursuer's chain of evidence.

“A remark of the same kind is applicable to the whole of those subsequent proceedings, in so far as they are founded upon substantively, as affording a proof of marriage by cohabitation, and habit and repute. The doubtful nature of the terms on which the pursuer agreed to abandon the action of declarator, throws a corresponding obscurity over the true nature of the connexion which afterwards subsisted between them. That connexion did not continue under circumstances to make it in itself conclusive. It is proved, no doubt, that they lived together as man and wife, and were be considered in the lodging-houses where they resided. But it is also proved that this took place under assumed names, a circumstance which goes far to neutralize the inference of marriage; as the assumption of the appearance of marriage may be easily accounted for, from a consideration of decorum and convenience, and may be ascribed to such considerations, when the true names are concealed. On the other hand, the assumption of feigned names is not absolutely conclusive the other way, as it is quite consistent with the notion of a really existing marriage, which the parties wish to keep secret. It certainly does not appear to the Lord Ordinary, that there is here any such inconsistency, as to raise doubts of the true meaning of the letters forming the main ground of the pursuer's action. Even the expressions which she is said to have used at Dumfries admit of an easy explanation, when it is considered, that her object was to obtain an unequivocal acknowledgment of her marriage, and that, after the abandonment of the action, and the delivery of the documents, she had every reason to believe that she was at the defender's mercy. Neither is it to be thrown out of view, that there are some other circumstances in these subsequent proceedings, which the defender will find it difficult to explain. The taking of the house in Warriston Crescent, and the intimation of it to the pursuer's mother, are not very easily reconcilable with the notion of a mere continuance of an illicit connexion. Inferences still more strong may be drawn from the letter addressed to the pursuer's mother from South Queensferry on 22d April, on their way from Edinburgh, and also from the letter of 1st May, 1834, addressed by the defender to the pursuer in Glasgow.

“These letters arc written with the defender's habitual caution; but no person, on the mere reading of these letters, and in the ignorance of any private views on his part, could for a moment suppose that they implied any thing but a legitimate connexion between him and the party to whom the first of these letters related, and to whom the second was actually addressed. But the Lord Ordinary finds it unnecessary to remark farther on the evidence of the proceedings of the parties after they left Edinburgh. His opinion is formed on the letters of the month of March, corroborated as they are by the testimony of the two Craigies; and for the reasons already given,—that opinion is in favour of the pursuer.”

The defender reclaimed, and the Court ordered cases, on considering which the following opinions were delivered.