Scottish Court of Session Decisions

This was an action at the instance of Caroline Jane Williamson or Imrie against James William Imrie, concluding, inter alia, for declarator that the pursuer and defender had been lawfully married to each other in May 1889, and for decree of adherence.

The pursuer averred (Cond. 3) that in May 1889, in accordance with a proposal made by the defender, documents in the following terms, duly signed and witnessed, had been exchanged between her and the defender:—“I acknowledge Caroline Jane Williamson as my lawful wife. (Sd.) James

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William Imrie. Witness, Jessie Scott Stewart; witness, Henry Murphy. 8th May 1889.” “I acknowledge James William Imrie as my lawful husband. (Sd.) Caroline Jane Williamson. Witness, Jessie Scott Stewart; witness, Henry Murphy;” and that on the faith of these declarations she had allowed the defender to cohabit with her, and they had acted towards each other as husband and wife.

The defender denied these averments. He admitted that documents had been exchanged by him and the pursuer, but did not admit their terms to be as averred by the pursuer, and explained that they had been exchanged not with the intention to constitute a marriage between the parties, but for a different purpose.

Proof was led. The evidence showed that the pursuer was a hospital nurse, and lived with her mother in York. She was a first cousin of the defender. In October 1888 the pursuer went on a visit to the defender's parents at 17 Florence Place, Glasgow. She was then at least twenty-five, if not twenty-eight years of age, and the defender was nineteen. The defender lived with his parents, and was employed in his father's business as a tailor. A courtship soon began between him and the pursuer, and subsequently they became engaged. As to the date of the engagement there was some doubt, the pursuer putting it in the end of November 1888, and the defender saying that they were not engaged till March 1889. Both agreed, however, that it was understood between them that the engagement was to last for several years.

The pursuer deponed that on 1st May 1889, on the strength of his promise to marry her, she allowed the defender for the first time to have connection with her. She further said—“Shortly after 1st May 1889 I was distressed about having allowed the defender to have connection with me, and he then promised that he would sign a document making me his lawful wife. On 8th May 1889 there were two documents written out and signed.” She described the documents as they were set forth on record, but admitted that she had not signed in presence of the witnesses.

The defender deponed that he first had connection with the pursuer in December 1888, and that there had been repeated acts of connection between that date and May. He admitted that documents in the terms alleged by the pursuer had been exchanged between them, but denied that they had been exchanged with the intention of constituting a marriage. In his examination-in-chief he deponed—“In the month of May there were certain documents signed. (Q) What led to that being done?—(A) There was some talk of insurance between us. I was not very well, and the pursuer suggested that if I gave her a document it would keep her right in case of anything happening to me. She asked me to do something which would enable her to succeed to anything that I had. It was the pursuer's idea that documents should be written out; I would not have thought of it…. The documents were written out by me in the shop on the morning of the 8th May…. I first showed these documents to the pursuer when I took them home with witnesses' names on them. After I wrote the documents I got the witnesses Murphy and Miss Stewart to sign them. Murphy signed the documents in the front shop. I went downstairs and told Murphy that there was a bit of a joke on about a marriage, and that he might come up and sign a paper when he had time. When he came up to the shop I laid down the paper before him, and he signed without thinking there was anything in it. He saw a part of what was on the paper, but there may have been a little bit at the top folded over. After Murphy signed the paper, I took it to Miss Stewart later on in the day. I did not tell her what I had said to Murphy. I just said that I wanted her to sign a paper, and that it was in connection with a lark, and that she need have no fear as Murphy had signed it. She then signed her name underneath Murphy's name without saying anything. Miss Stewart did not see any of the writing, because I folded it over…. There was no intention at that time on my part that that should constitute a marriage. The whole thing was done on 8th May. When the pursuer made the proposal that I should do something to keep the insurance money for her, I suggested that it might just be as well to get married before the registrar, and I was quite willing to do so. The pursuer, however, said that she would not hear of that on any consideration, and said that when she was to be married she would go to church.”

In cross-examination the defender said—“I am quite sure that the documents were not written for the purpose of making a marriage. My intention was, that if I happened to die, the pursuer might get some money through these documents. (Q) How was she to get the money?—(A) I do not know. The pursuer mentioned to me that there was a small insurance upon my life. I did not know anything about that insurance, but I have since found out that my father had insured me when I was a child for about £15 or £20 of funeral money…. (Q) And you thought that if you died these documents would put the pursuer in the position of your wife, and so allow her to get the insurance money?—(A) No. I thought my people might pay her a sum of money rather than have any row.”

In answer to questions by the Court the defender said—“I spoke about going before the registrar shortly before the documents were signed, and I also mentioned that matter again later on…. I was perfectly willing on the 8th of May 1889 to marry the pursuer outright if she would go before a registrar, but not unless she did so.”

Murphy, whose name was appended to the documents as a witness, deponed that on 8th May the defender had brought the documents to him to sign; there were no signatures appended to them then so far as he saw; he gathered from the defender's

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demeanour and what he said that the signing of the documents was a “mere lark.” The other witness Miss Stewart was absent from the country at the time of the trial, and was not examined.

After these documents were signed and exchanged repeated acts of connection took place between the pursuer and defender. Nothing, however, was said about the relations between them or the documents they had exchanged with each other either to the defender's family or the pursuer's mother.

On 27th May the pursuer left her aunt's house and went as a nurse to Gartnavel Asylum. She remained there or in attendance on private patients until September, when she went to Port Bannatyne on a visit to another aunt. She returned to Glasgow in November. By that time the fact that she was pregnant was apparent, and the relations between her and the defender had been discussed. She was consequently refused admission to the Imrie's house, and was at once sent off to her mother at York, where she was delivered of a child on 2nd March.

From the time when the pursuer went to Gartnavel until she returned to Glasgow in November a correspondence was kept up between her and the defender, which he habitually addressed her in such terms as “My own dear wife,” and subscribed himself as “Your loving husband,” while she addressed him as “My dear” or “My darling husband,” and signed herself “Your loving wife.” As a contrast to the terms of their letters it was proved that in letters written to the pursuer in November 1888, when she had returned for a short time to York, he had always addressed her as “My dear sweetheart.”

When the pursuer was at Gartnavel the defender used to visit her frequently, and it was proved that on one occasion she introduced him to a nurse at the asylum as her husband, and that he allowed this introduction to pass without remark. She also told the same nurse and another that the defender was her husband before the fact that she was pregnant became known. The pursuer deponed that on another occasion the defender in her presence spoke of her to Miss Stewart, one of the witnesses to the documents signed on 8th May, as his wife.

It was also proved that the defender in July 1889 bought the pursuer a plain gold ring out of money supplied by her for that purpose, and that she sometimes wore it.

The defender sought to weaken the influence to be drawn from the correspondence by pointing out that the pursuer on New Year's Day 1889 had given him a New Year's card addressed to “My dear husband;” that in a letter written from Gartnavel on August 7th, after a quarrel with him, she dropped the title of husband and addressed him as “Dear Jamie,” signing herself “Yours, &c., Carrie Williamson,” and that she had never signed herself as “Carrie Imrie” until December 1889, when the relations between them had ceased to be friendly.

The defender also maintained that the pursuer's conduct subsequent to 8th May was inconsistent with the idea that she looked upon the documents exchanged between her and the defender as having made her a married woman. In the first place, he deponed that about the end of July 1889 she had destroyed the document he had given her in the course of a quarrel with him. He said—“The quarrel took place upstairs in our house in Florence Place; it was partly on the stairhead and partly at the door of my room…. The feeling got worse and worse, and ultimately the pursuer flew out of my room into her own and came back flourishing the document in my face. She then tore it in two, and said that that finished it for good and all. I then went and burned my paper.” In the second place, the defender pointed to some of the pursuer's letters to him as showing that early in August 1889, three months after the alleged marriage, she was carrying on a flirtation with an old admirer of hers named Hamley, and had been for a trip to Greenock in his company. In the third place, he pointed to certain passages in letters from her to him as showing that in the beginning of August she had attempted to procure abortion.

Neither of the documents interchanged by the parties was produced at the trial, but the pursuer denied that she had destroyed the document given to her by the defender in the manner described by him. She said that she had kept the document in her box, and that she first missed it on her return to York in November 1889, and she charged the defender's mother and sister, who had packed her box in Glasgow, with having taken it. She admitted, however, that she had not when she missed it written to them to demand its return. The defender's mother and sister denied having seen or taken the document, but admitted that when packing the pursuer's things they had found and taken, as belonging to the defender, some letters addressed by pursuer to him and returned by him to her.

With regard to her relations with Hamley, the pursuer denied that the meetings with him referred to in her letters had ever taken place. She said that the allusions in her letters to these meetings were untrue, and had been made with the view of rousing the defender's jealousy.

With regard to the charge of having attempted to procure abortion, she denied having made any attempts of the kind, and explained the passages in her letters which seemed to suggest that she had used drugs for that purpose by saying that they had been inserted in order to give the defender the false impression that she had done so, because he had told her on several occasions that she must get rid of what she had.

On 11th July 1891 the Lord Ordinary ( Stormonth Darling), having considered the cause, found, decerned, and declared, and decerned and ordained conform to the conclusions of the summons for declarator of marriage and adherence.

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“ Opinion.—I have considered this case with all the anxiety which is due to a question fraught with so much importance to the parties and their infant child. I have grave doubts whether the conclusion to which I have felt compelled to come to is likely to conduce to the happiness of the pursuer and defender, but I must decide the case according to law, and for any consequences which may ensue they are themselves responsible. I am of opinion that they must be declared to be married persons. The facts are, that in October 1888 the pursuer, who was a first cousin of the defender, came from York to Glasgow on a visit to the defender's father and mother. The pursuer, who had been an hospital nurse in London, was then not less than twenty-five years, and probably as much as twenty-eight. The defender was in his twentieth year, in delicate health, and employed in his father's business as a tailor. Very soon a courtship sprang up between them which resulted in a promise of marriage, and during the pursuer's visit, which lasted till the end of May 1889, they had repeated acts of connection. The first of these acts, according to the defender, took place in the month of December, and according to the pursuer, on the 1st of May. The pursuer says that they became engaged on the 25th November, and the defender says not till the middle of March. I do not think it is of much consequence to decide which of them is speaking the truth with regard to these dates, for both admit that connection took place before the 8th of May, and both admit that the engagement to marry was qualified by the stipulation that the marriage was not to take place for several years. The importance of the 8th of May is that on that day they exchanged writings acknowledging each other to be husband and wife. These acknowledgments bore to be attested by two witnesses, but it appears from the proof that these persons were not witnesses in any proper sense of the term, for they neither saw the parties sign nor heard them make any acknowledgment either of their signatures or of the fact that they were husband and wife. The writings are not now in existence. The defender says that the pursuer tore up hers in the course of a quarrel which they had towards the end of July 1889, and that he destroyed his immediately afterwards. The pursuer, on the other hand, denies that she ever destroyed her document, and alleges that it was taken out of her box by some member of defender's family. But the defender admits the terms of the documents, and he explained the circumstances under which he prepared and got them signed.

About the end of May the pursuer left the house of the defender's father and took employment as a nurse at Gartnavel Asylum. She remained either there or at similar work in the country till the end of September, when she went to visit a maiden aunt at Port Bannatyne. Her pregnancy having then become apparent, and her intimacy with the defender having been discovered, she returned to Glasgow in November, and was at once sent home by the defender's parents to her mother at York, where she was delivered of a child on 2nd March 1890. From the time when the pursuer left the house of the defender's father in May 1889 till she left Port Bannatyne in November of that year a correspondence was kept up between her and the defender, in which he habitually addressed her in such terms as ‘My own dear wife,’ and subscribed himself as ‘Your loving husband,’ while she addressed him as ‘My dear’ or ‘My darling husband,’ and signed herself ‘Your loving wife.’

In the month of July he presented her with a wedding-ring, which she sometimes wore, and on one occasion, if not oftener, she introduced him to a friend as her husband, and he did not in any way repudiate the description.

It is firmly settled in the law of Scotland that marriage may be constituted by the deliberate interchange of consent de prœsenti, that the consent may be evidenced by written acknowledgments, and that these need not be either holograph or tested. It is also settled that parole evidence is competent to show that the consent so interchanged, though in form present and deliberate, was not truly understood or intended by the parties to make marriage, and that if such evidence is forthcoming there is no marriage. But I take it that such evidence must show an intention on both sides inconsistent with the natural meaning of the words used, and that a mere mental reservation on one side will not be sufficient. (See the Lord Justice-Clerk's opinion at p. 1045–6 in Fleming v. Corbet, 21 D. 1034.) I also think that where an explanation is made by one of the parties and denied by the other, of a purpose other than marriage as existing in the minds of both, it must be scanned very closely to see whether it is a rational explanation, and whether it is borne out by their conduct both before and after the granting of the documents.

Now, the explanation made by the defender is that the pursuer suggested the granting of the documents in order to give her a claim, in the event of his death, to an insurance of £100 which was supposed to exist on his life, and that he agreed to become a party to the documents for that purpose and no other. In point of fact there was no insurance on his life except one for some £15 or £20 taken out by his parents when he was a child, and to which, apprehend, he personally had no right. He does not even say that he wished the pursuer to have the rights of his widow, whatever these might be, but only that he thought the production of the documents, in the event of his death, might induce his parents to pay her a sum of money rather than have any disclosure.

I cannot say that this explanation strikes me as probable or even rational.

But I think it is displaced by the conduct of the defender himself. In the first place, he admits that both before and after the documents were granted he was willing

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to marry the pursuer before the registrar, and he says that he proposed this course to her and she declined. She denies that he made any such proposition, but the important thing is that he was prepared in his own mind to go through a ceremony of marriage, and if so it is difficult to understand why, being situated as he was, he should not have been willing to accomplish the same object by an easier, more secret, and less formal method. Then, if his object was only what he now says it was, I cannot account for his constantly addressing her in his letters as his wife, his permitting her to describe him to others as her husband, and his presenting her with a plain gold ring. All these circumstances seem to me consistent with the acknowledgments having meant what they professed to mean and what she says they meant, and inconsistent with the meaning which he ascribes to them.

Thus far I have considered the case as if the documents were still in existence. But it was strenuously and ably maintained by Mr Younger that the destruction of them left the pursuer entirely at the mercy of the defender, and that his admission of their terms could only be taken subject to the qualification that they were not intended to make marriage. I cannot assent to that proposition. The moment the defender admits their terms I think the Court is bound to inquire, not only by his own evidence and his own writ, but by other evidence as well, whether they were seriously meant. It is clear that if they were sufficient to signify consent de prœsenti, the marriage so constituted could not be undone by the mere destruction of the documents. The act of destroying them can only be important as throwing light on the intention with which they were granted. Even if they were destroyed, as the defender says they were, in the course of a sudden quarrel, it would not go far to show that they were regarded by the parties as insignificant. It would rather seem to me to indicate the contrary. But I am by no means satisfied that the defender's statement on this head ought to be accepted. His candour in admitting the terms of the documents disposed me on the whole to believe him, and I am sorry to add that the pursuer's admission of the untruthfulness of some of the statements in her letters very seriously shakes her credibility. But it is remarkable that the correspondence about the time when the alleged destruction of the documents took place, while it contains evidence of the parties having had a quarrel, does not indicate any serious change in their relations, and in particular the defender continues after that to call the pursuer his wife, exactly as he had been doing all along. On the whole, I think it is more probable that the destruction of the documents took place about the time of the rupture consequent on the discovery by the defender's parents of the pursuer's pregnancy, and that the pursuer was not herself a party to it.

I do not forget that the defender was much younger than the pursuer, and indeed little more than a boy when he granted his acknowledgment, and that his circumstances at the time were such as to make marriage in the highest degree imprudent. But he was undoubtedly at the time attached to the pursuer, they were in the same rank of life, and nearly related, and marriage was the best reparation for the wrong which he had done her (with, however, little resistance on her part, and it was, I fear, but little) in obtaining possession of her person. On the whole, it seems to me that the pursuer is entitled to the declarator which she asks.”

The defender reclaimed, and argued—It was not enough for the pursuer to prove that documents bearing that the parties acknowledged one another as spouses were exchanged between them. The onus was also laid upon her of showing that these documents had been interchanged with the deliberate intention of constituting a marriage— Lockyer v. Sinclair, March 3, 1846, 8 D. 582 ( per Lord Justice-Clerk Hope, 595–602); Fleming v. Corbett, June 24, 1859, 21 D. 1034 ( per Lord Justice-Clerk Inglis, 1043). The pursuer must show either that both parties had acted with such an intention, or at least that she had acted in the belief that she was concluding a marriage, and that the defender had intentionally induced this belief on her part— Robertson v. Stewart, February 27, 1874, 1 R. 532 ( per Lord Deas). The pursuer had failed to discharge the onus laid upon her. Her conduct subsequent to 8th May favoured the truth of the defender's story that the documents had been exchanged, not with the intention of constituting a marriage, but to give her a claim in the event of his death for the amount of insurances upon his life. Documents exchanged for such a purpose could not be founded on, whatever their terms, as constituting a marriage between the parties— Anderson v. Fullerton, 1795, Hume's Dec. 365.

Argued for the pursuer—It was understood by the pursuer that defender's acknowledgment of her as his wife was bona fide; it was immaterial that the defender had made it under a mental reservation— Fleming v. Corbett, 21 D. 1034 ( per Lord Justice-Clerk Inglis, 1045–1046). The pursuer had discharged any onus that lay on her by setting up a prima facie contract of marriage. It then lay on the defender to explain away the prima facie case made by her. He had not only failed to do so, but the evidence as a whole strongly supported the pursuer's account of the purpose with which the documents had been exchanged. The pursuer was therefore entitled to declarator of marriage— M'Kie v. Ferguson, 1781, Hume's Dec. 358; Forster v. Forster, June 11, 1872, 10 Macph. (H. of L.) 68; Maloy v. M'Adam, January 9, 1885, 12 R. 431; Leslie v. Leslie, March 16, 1860, 22 D. 993; Fraser on Husband and Wife, i. 317–318; M'Alister v. Dun, May 2, 1759, 2 Pat. App. 29.

At advising—

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