Headnote:
This was a question as to the liability for relieving a pauper, Jane Duncan, between the parishes of St Cuthberts, represented by Craig, and South Leith, represented by Simpson. The question depended on whether the pauper was married to a man named Whitelaw. After a proof, in the course of which the pauper herself and sundry relatives were examined, the Lord Ordinary (
Barcaple) pronounced this interlocutor “ The Lord Ordinary finds it is not proved that the pauper Jane Duncan was ever married to John Whitelaw, as averred by the defender: Finds that the settlement of the said Jane Duncan as a single woman, and of her illegitimate children, is in the parish of South Leith: Therefore repels the defences, and finds, declares, and decerns in terms of the conclusions of the libel: Finds the defender liable in expenses, &c.
“Note.—The conduct of Whitelaw and Jane Duncan was calculated to create, and did create, a general understanding among their friends and neighbours that they were married. But the Lord Ordinary thinks it is proved that they did not consider themselves to be married, and did not uniformly hold themselves out to others to be so; and also that some of their relatives and others were expressly told by one or other of themselves that they were not married, and in consequence believed them to be living in concubinage. In this view of
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the evidence, the defender has failed to make out a marriage by habit and repute, which is his sole case. ”
Simpson, for South Leith, reclaimed.
Trayner (
Monro with him) for reclaimer.
John Marshall, for respondent, was not called on.
At advising—
Judgment:
Lord President—I don't think I ever saw so weak an attempt to make out a marriage by cohabitation, habit and repute. The repute is of the most divided and ambiguous kind, and it is most natural that it should be so, because it arises from a cohabitation which plainly was not in the estimation of the man or woman a cohabitation as man and wife. They did not intend—I think that is the plain inference from the proof—to cohabit as man and wife, but only as man and woman, under a disguise for the purpose of misleading their landlady and neighbours. For the purpose of showing how divided the repute is—in itself a fatal objection to such a marriage—it is only necessary to attend to one or two points. In the first place, in 1866 the supposed wife makes that statement on being admitted to the poor-house of St Cuthberts, that she is a single woman and had been cohabiting with Whitelaw for three years. It was argued to us that if there has been cohabitation for three years sufficient to make a marriage, the denial of it will not unmake it, and that is true. But then, one would expect that for the three years there would be no doubt as to the facts. Now the first two witnesses called after the woman herself are Mrs Whitelaw and Jessie Whitelaw, the mother and sister of the alleged husband. The mother makes it clear that so early as 1863, that is just three years before the statement to St Cuthberts, she was satisfied that they were not married persons, and Jessie Whitelaw says she never from the beginning to the end thought them married. Really after that to talk of the constitution of marriage by cohabitation of those persons, and undivided repute, is out of the question, and it would be a waste of time to analyse the evidence farther. The Lord Ordinary has well expressed the result of the proof, and I entirely agree with him.
Lord Deas—It would be a great error to think that anything said as to the import of the proof in this case is to be taken as the entire substance of the proof, which extends to 50 pages, but I am perfectly satisfied that the result is as your Lordship has stated. There is nothing like a proof of habit and repute for any lengthened period. It can only be called a divided repute, because there are various persons to whom they thought it convenient to say they were man and wife, and who knew nothing to the contrary. But anything like undivided habit and repute is matter of which there is no shadow of evidence. If there had been good proof of that, 1 should not have been disposed to hold what passed with the registrar as conclusive, for under that Act these parties were obliged to get their child registered in some way, otherwise they would be subject to a penalty, and if it was not registered as legitimate they had scarcely any choice but to get it registered as illegitimate. Looking at the erratic life these persons led, no one can doubt that the most important witnesses are their own relations, and it is plain that neither on one side nor the other has there been brought a single witness who thought them married. They may have at one time thought they were, but it is plain that the mother and sister of the supposed husband, and the three brothers of the woman, thought they were not married, and plainly that was the opinion of the woman herself. To go over their evidence would merely be to weaken it. I see no ground for altering. It is unnecessary to consider what might be an important question,—whether the same amount of proof would be necessary for such a purpose as this, to prove a marriage incidentally, as to prove it in a regular declarator? But it is unnecessary to go into that, the proof in this case being so clear.
Lord Ardmillan—In this case the repute is divided, and it is not caused by that conjugal cohabitation which is required, but is caused, in the first place, by the false statements that there had been a marriage; and, in the second place, by statements made by persons who did not believe them when they made them, for they say they were made to get into houses and then they apologised for deceiving the landladies; and besides, the parties did not believe themselves married.
Lord Kinloch—I have come very clearly to the same opinion. Habit and repute is by our law good evidence of marriage; but it never can amount to proof where the repute is divided. But independently of this objection, I consider it clearly proved in this case, that the parties never were married by any of the modes of constituting marriage known to the law of Scotland, and never thought themselves married; and, where that is clear, no amount of apparent conjugal cohabitation, and no amount of repute will render them married persons.
