Scottish Court of Session Decisions

Lord Advocate, Scott, and Brand, in support of reclaiming note.

Monro for the defender was not called on.

At advising,

Lord Cowan—This action of declarator was instituted in April 1865, several months after the death of Stewart Sceales, with whom the pursuer seeks to have her marriage declared. His death occurred in November 1864.

As the legal result of her statements in the record, the pursuer pleads constitution of her alleged marriage (1) on the ground of promise to marry, followed by copula; (2) on the ground of “ de presenti acknowledgment” of her to be his wife; and (3) on the ground of the parties having lived and cohabited as man and wife, and of their having been “habite and repute held to be married by their friends, neighbours, and acquaintances.”

As to the 1st and 2d of these pleas urged in support of marriage, little requires to be said.

The first has plainly no foundation in the facts of the case, and has accordingly not been insisted in by the pursuer.

With regard to the second—viz., alleged de presenti acknowledgment—holding article 5 of the condescendence to be relevantly stated, as to which I entertain very considerable doubt, from the want of specific allegation and the vague generality in which it is expressed—there is no evidence to support it, as an independent ground of action.

Marriage is constituted by de presenti inter-change of mutual consent of parties to take each other as husband and wife. No such constitution of marriage is alleged in this record. What is alleged is that on various occasions, and in the presence of various parties, Stewart Sceales acknowledged the pursuer to be his lawful wife, and addressed and spoke of her as such—from which, if proved, it is pleaded there is room for inferring that the parties had interchanged, prior to these acknowledgments, matrimonial consent. I am far from saying that such acknowledgment, when clearly and unequivocally established, may not be enough to entitle the party to have the marriage declared. But, after carefully considering the statements of the several witnesses referred to at the debate, I am quite satisfied, as the Lord Ordinary has been, that no case of the kind is established by this proof. What these witnesses state as to the pursuer having been called Mrs Sceales in the presence of the deceased, as to his having addressed her under that name, and as to her having been treated and spoken to as his wife, may be of more or less importance in the question of habite and repute. In that part of the case such statements require to be considered; but, as grounds for declaring marriage, they are quite insufficient and inconclusive.

The remaining ground of action, however, is that on which the pursuer has mainly relied.

The connection of the parties commenced in January 1853, or within a few weeks after the death of Stewart Sceales' wife, who died in Nov. 1852. It was undoubtedly illicit in its origin, but the allegation is that during the period it subsisted the parties cohabited together and were habite and repute man and wife. This connection is averred in the record to have subsisted till about the years 1859 or 1860. On the evidence it is shown to have subsisted to no later date than the beginning of 1858, or it may be for some months longer. That it terminated in 1858, however, is certain.

Farther, it is to be kept in view that although Stewart Sceales did not die till November 1864, no assertion of her marriage or attempt to have it either judicially declared or privately recognised, was ever once made on the part of the pursuer during the six years that thus intervened. Nor need this be regarded with surprise, when the facts clearly established by the evidence bearing on her conduct and history between 1858, and the institution of this action in 1865, are considered.

In 1858, if not previously, when living in Middle Arthur Place, and about the time she and Sceales finally separated, an illicit intercourse commenced between her and a Dr Price. This connection was continued during the years 1858, 1859, and part of 1860, the parties being resident, after leaving Middle Arthur Place, at the Abbey and elsewhere in and about Edinburgh—the pursuer at the places where she stayed at this time being known under the name of Ellen Darsie and sometimes Price. Nay, to one of the witnesses the pursuer stated, in explanation why Price was in the habit of coming to her room, that she was about to be married to him, and would never marry another man in the world. Then from about May 1860 until Martinmas of that year, the pursuer and Dr Price are found living at Norton Place, still cohabiting together. And finally, it is established by the evidence of Mrs Bell, and her husband William Bell, that from April 1861 till December 1865 the pursuer and Dr Price, having removed from Edinburgh, lodged in the house of these witnesses in Gloucester Street, Bloombury, London, representing themselves as Dr and Mrs Price. Under that name of Mrs Price and no other the pursuer was known and addressed during all these years, and it was not until February 1865— i.e., after Sceales' death, and when this action was about being brought—that they ever heard of the pursuer having been married to any other person than Dr Price; and then she for the first time told Mrs Bell that she had been the wife of a Mr Sceales and had eloped with Price. These facts are all deponed to by unexceptionable witnesses examined for the defender, and whose evidence stands uncontradicted.

Without at all doubting that marriage may be declared on the ground stated, even in such circumstances, when supported by clear and unequivocal proof—it is, at least, a rare occurrence, if not unprecedented, that so short a period of cohabitation and habite and repute, should be maintained to be enough to constitute the marriage relation, in a case where, for six years prior to the death of the alleged husband, no steps had been taken by the woman in vindication of her status, but during all that period the parties had been living entirely separate from each other. In all the cases similar to the present, where marriage has been declared, the intercourse has continued for a considerable number of years; and the general doctrine expressed by all the authorities is that a marriage on this ground will not be declared, unless the cohabitation shall have subsisted for a very considerable time, accompanied with habite and repute of the parties being married.

Not with standing all this, had the pursuer adduced a body of clear, unequivocal, and consistent testimony in support of her averment—the inference that the consent necessary to marriage had passed between them might have been justified; and could it have been certainly predicated that marriage had been thus constituted between the parties, so that in 1859 they were husband and wife—the subsequent conduct of the pursuer, her separation from Sceales, her adoption of her own name of Darsie till she assumed that of Price, and

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