Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Perthshire, in an action at the instance of Catherine Scott, Auchnahyle, Pitlochry, against

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John Stewart, Moulinearn, “for the sum of £500 sterling, in name of reparation and damages for the loss and injury which she has sustained in her character and reputation through the defender's failure and refusal to implement and fulfil repeated promises of marriage, deliberately and solemnly made by him to the pursuer, and accepted by her in or about the month of March 1858, and at various times during the subsequent years down to and including 1867, the defender having during the whole of said period courted the pursuer, and engaged her affections for the purpose and with the intention of marriage: and as a solatium to her feelings for the breach of the said promises on the part of the defender.”

After a proof, the Sheriff-Substitute ( Barclay) pronounced this interlocutor:—

“ Perthshire, 31 st December 1869.—Having heard parties' procurators, and made avizandum with the process and proofs,—Finds, as matter of fact, that the pursuer has failed to prove such distinct mutual promise and agreement to marry between her and the defender as can found an action of damages for breach thereof: Therefore assoilzies the defender from the conclusions of the summons: Finds him entitled to expenses, and remits the account thereof to the auditor to tax, and decerns.

Note.—The Sheriff-Substitute is of opinion that to found an action of damages for breach of promise of marriage there ought to be as strong and direct evidence of the promise as, when followed by sexual intercourse, would according to the Scotch law (as still existing) constitute very marriage. The only distinction between the two class of cases is, that in the latter class the proof of the promise is prudently limited to the writing or the oath of the party on whom the marriage is sought to be fixed. The kind of promise in either class ought to be the same, not merely general courtship, however close and lengthy, or words of empty adulation or fancy promises, but a serious, distinct, and mutual offer and acceptance to marry. The great point is mutuality. An offer or promise on one side to marry on some future contingency, or which on the other side is rejected or not accepted, cannot ground an action of declarator of marriage, or for damages because of breach thereof. Both parties must be bound or neither. If mere vague and insincere promises on one side were to stand for mutual promise or agreement, there are few of the host of filiation cases where such fient of promise may not be proved.

In these numerous cases the woman either seeks to screen her sin by the cover of such promise, or if such has any colour of truth, it is easily resolved into the base treachery of a heartless seducer, and in that case in an action for seduction he ought, even on more slender proof, most justly to be made liable as a seducer. Indeed, the Sheriff-Substitute has far more reliance on promises of marriage where there is no child in question. In such state of facts, there is the prominent fact of the high moral character of both parties, and therefore every presumption in favour of the promise being made with no vicious intent, but for the pure and sole purpose of holy matrimony.

Testing the proof in the case by the rule of evidence above indicated, it cannot be said that though the defender in a declarator of marriage had, on reference to his oath, sworn to every thing in his declaration, nay, to every item of the evidence of the pursuer's witnesses, there would have been proof of such mutual promise to marry as, followed by childbirth, could have formed a Scotch marriage between the parties. Take the converse. Suppose the defender had sued the pursuer for breach of promise, and that the same evidence was then adduced, still there would have been awanting the essential element of mutual promise and acceptance as could have rendered the pursuer liable to the defender.

The Sheriff-Substitute, in such cases, is inclined to place much weight in the written communications between the parties. In letters written in silence and away from human eye and ear, and designed only to reach the object of affection, the swain is apt to pour out the secrets of his inmost heart, often in language of hyperbole. It is certainly matter of observation that in this case, during so long a courtship and with the averment of copious effusions, only three letters have been put in. These certainly show acquaintance, even courtship, but they are wholly awanting in the excelsior strain characteristic of such epistles. Nevertheless no general rule can be laid down as a common standard, and some temperaments are uniformly frigid even in matters which with others occasion excessive heat. One letter does appear to the Sheriff-Substitute as indicative of the truth of the axiom that ‘the current of true love never runs smooth.’ It would appear as if some cloud had darkened the bright prospects of the defender, and that the pursuer had on one occasion scowled on him in passing. It is strange that neither party was examined on this epoch in their amatory history. But at all events, looking at the date of that letter, the breach had been healed, and the parties had afterwards become reconciled and affectionate to a degree far beyond the limits of propriety.

On the face of the letters, and of the parole evidence, there can be no doubt of the existence of a lengthy courtship, but that alone will not make up for a distinct promise, however much it may add weight to the proof of such promise. The danger of relying entirely on the evidence of near relations of the parties is well exemplified in this case. The relatives on one side directly swear antagonistically to those on the other. Nevertheless, relations are not to be altogether excluded—seeing that the marital secret is likely to be first divulged to them rather than to the public, to whom indeed the denial of all such treaties is unfortunately thought rather a virtue until the consummation takes every one by agreeable surprise.

The Sheriff-Substitute is rather unfavourably impressed with the proof as to the Sabbath visit at Pitlochrie and the night visit at Moulinearn. Both these visits are somewhat suspicious, and are inconsistent with the existence of a fair and honest promise to marry.

Preparations made on either side for marriage always form one of the strongest facts of the real evidence in this class of cases, such as taking and furnishing a house intended for the marriage pair. In the present case these preparations were all on one side. The extraordinary length of time devoted to them is inconsistent with any immediate intention to consummate marriage. As another aspirant for the pursuer's hand is brought prominently forward, there is no evidence that these preparations were the direct result of any act of the defender. Besides, the enumeration is of articles at all times found useful in any respectable household without any immediate prospect of the marriage of any of its members. No marriage gown or garments are in the catalogue.

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There is considerable effect due to the delay in enforcing the claim, and it is not satisfactorily explained why the action for breach of promise should not have been combined with that of filiation and aliment of the child. It has let in the plea that the pursuer was desirous of trying her strongest case first, and only on its success to put forth the far more important claim of damages for breach of promise.

“The parties are in age and in every social respect alike, and there is not a stain on the pursuer's character but that which the defender has inflicted, and after so long a courtship it is matter of deep regret that the defender did not see his way to make reparation to the pursuer in a manner which would receive the approbation of his conscience as well of the general public by doing justice alike to her, who at one time was doubtless the object of his affection, and still more to their child. Even yet this result is not beyond remedy if parties be left to themselves.”

The pursuer having appealed, the Sheriff ( Tait) pronounced this interlocutor:—

“ Edinburgh, 28 th March 1870.—Having considered the minute of appeal, reclaiming petition, and answers, and whole process, and made avizandum, — Recalls the interlocutor appealed from: Finds, as matter of fact, that for a long period a courtship on the part of the defender, and a favourable reception thereof on the part of the pursuer, existed between the parties: Finds that the said courtship and reception thereof was with a view to and in contemplation of marriage between the defender and the pursuer: Finds it admitted by the defender that on one occasion at least the defender distinctly asked the pursuer to marry him: Finds that although the marriage was delayed on one consideration or another, the offer was not rejected or repudiated by the pursuer; but, on the contrary, the defender states that the pursuer also asked the defender to marry her: Finds that the pursuer's relations were under the belief that the pursuer and defender were engaged to be married; that the defender was received into their houses on that footing; and that preparations were made and gifts given by them with the view to such marriage: Finds that the liaison or intimacy between the parties continued on this footing until the defender obtained possession of the person of the pursuer, and in the circumstances it must be held that the pursuer yielded such possession of her person to the defender on the faith of the defender's offer of marriage, and the implied engagement between them: Finds, in law, that in the whole circumstances there existed an implied engagement for marriage between the defender and pursuer, and that should the defender refuse to implement the same, he is guilty of breach of promise of marriage, and is liable in damages for the same; but before answer as to the amount of damage, or pronouncing decree for the same, appoints the defender to give in a minute within one month from this date, stating explicitly whether he refuses now to marry the pursuer.

Note.—The defender in his defences has maintained that there was no promise or engagement to marry between him and the pursuer, and that therefore he is not liable in damages for the breach thereof, but he has not said that if it be decided otherwise he will not now marry the pursuer.

The Sheriff does not concur with the Sheriff-Substitute in thinking that this case must be regulated by the views applicable to a declarator of marriage on a promise subsequente copula. An actual marriage, which not only determines the status of the offspring thereof, but may also affect the rights of third parties, is a very different thing from a mere action of damages for breach of promise. Accordingly, our law, which alone acknowledges the constitution of marriage in such circumstances, wisely requires the establishment of an express and distinct engagement by evidence as to which there can be no possible mistake—viz., by writ or oath. But a case of damages is a mere jury question, to be determined on the whole facts and circumstances proved prout de jure. If these facts and circumstances are such that an engagement or promise of marriage is to be implied therefrom, on the faith of which the pursuer is entitled to rely, then damages may be given for breach thereof, and cases of this kind constantly occur in England, where there is no marriage by promise subsequente copula. The previous action of filiation with regard to the child, which was necessary for the aliment of the child, is no bar to the present action, especially considering the reservation therein.”

The defender appealed to the Court of Session.

Shand and Moncreiff for him.

Watson and Strachan in answer.

At advising—