Scottish Court of Session Decisions

( Poor) Mrs Isabella Gauld or Davidson, residing at 101 Hilltown, Dundee, pursuer, brought an action of declarator of her marriage with the late John Davidson, wine and spirit merchant, Dundee, against George Davidson and others, the trustees, executors, and next-of-kin of the said John Davidson, defenders.

The defenders pleaded—“The pursuer's averments, so far as material, being unfounded in fact, the decree of declarator sought should be refused and the defenders assoilzied.”

The facts are narrated in the opinion, infra, of the Lord Ordinary ( Ormidale), who on 1st April 1920 after a proof assoilzied the defenders.

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Opinion.—“In this action the pursuer, who sues in forma pauperis, designs herself as Mrs Isabella Gauld or Davidson, widow of the deceased John Davidson. She asks the Court for declarator that ‘the pursuer and the said John Davidson were lawfully married to each other at Dundee on the 27th December 1899 and that the pursuer has since been the lawful wife of the said John Davidson and is now his lawful widow.’

John Davidson died at 11 Craigie Street, Dundee, on 1st August 1918, about a year before the summons was signeted. The defenders are his executor and his next-of-kin or some of his next-of-kin. He left a will dated 4th June 1918 and by it he bequeathed various legacies to sisters, nephews, and other relatives, amounting to about £1200, and the residue of his estate to his sister Miss Mary Davidson. The amount of his estate is £1545, 18s. 11d. No mention is made in his will of the pursuer. The pursuer is 55 years of age and Davidson was fully 20 years her senior. Davidson was a wine and spirit merchant and kept a public house in Dundee. He lived with his mother and sister at 11 Craigie Street. He retired from business in 1902. In January 1903 he went to live with his sister Mrs Smith in Arbroath, and in 1905 along with the same sister he went to Montrose. He left Montrose in November 1917, ten months before his death, and returned to Dundee and again resided until his death with his sister Mary at 11 Craigie Street. His mother had died a good many years before this.

In 1888 the pursuer was married to Peter Bruce. Prior to the marriage the pursuer had had an illegitimate so—Stewart Gauld—to a Mr John. After the marriage Bruce and the pursuer went to Glasgow, where Bruce joined the Glasgow Police Force. The marriage was not a happy one owing to the drinking habits of the pursuer. A son and daughter, Peter and Freda, were born of the marriage. In 1893 Bruce owing to the conduct of his wife had to resign from the police force, the home was broken up, and the pursuer returned to Dundee bringing with her her two sons Stewart Gauld and Peter, the daughter remaining with her father.

Davidson and the pursuer had known each other for some time prior to this, and in 1893 or 1894 they commenced to have intimate and illicit relations. Davidson provided the pursuer with money, and about 1896 or 1897 appears to have taken and stocked a crockery and furniture shop in Dundee for her. The life that Davidson was leading with the pursuer was not disclosed to his mother and sister.

In 1899 Bruce raised an action of divorce against his wife on the ground of adultery, Davidson being called as co-defender. He obtained decree of divorce on 12th December 1899 and was also found entitled to the custody of the children of the marriage. He does not, however, appear to have attempted to recover the custody of his son Peter, who since 1893 had been living with his mother.

From the beginning of his association with the pursuer Davidson took an interest in and was a good friend to both Stewart Gauld, the illegitimate child of the pursuer, and Peter Bruce, and he continued to take an interest in them down to his death.

In the divorce proceedings the present pursuer and Davidson maintained that the latter was not aware that the pursuer was a married woman. The pursuer now swears that that was a lie, and I have no doubt it was. Her purpose in stating that she committed perjury in the divorce proceedings is, I take it, to give colour to her present oath that Davidson during the earlier period of their illicit intimacy repeatedly said that he would marry her when she was free.

Soon after the divorce proceedings the pursuer says that Davidson proposed that they should be married on 27th December, his birthday. On the evening of that day there was a meeting of the parties at the house in Mid Street, where the pursuer was then living with her two sons and in which Davidson had frequently spent the night with her. It was on this occasion that the pursuer swears that her marriage to Davidson was celebrated. That there was a ceremony of some sort approximating if not amounting to an interchange of verba de presenti must be taken to be beyond doubt.

I have come to the conclusion, however, that the proceedings were not seriously intended by either party to constitute a marriage and did not constitute a marriage, and that there was no deliberate interchange of matrimonial consent.

In a question of this kind the evidence must be examined with the most scrupulous care and attention, especially after the death of one of the parties. The witnesses here are speaking of an event which took place twenty years ago. Their memory is naturally not very clear as to what exactly was said or as to what actually occurred. Further, Davidson being dead and the alleged marriage not having been brought to the knowledge of his relatives or personal friends the evidence is necessarily ex parte.

In addition to Davidson and the pursuer there were present the pursuer's father and mother, her two brothers William and David, her two sons Stewart Gauld and Peter, and two friends of the pursuer, Mrs Stewart and Mrs Gray. Mrs Gray speaks to other persons having been present, but their names have not been recorded. A man Langton appears also to have been about the premises, but he was not called as a witness. Of the persons named by the pursuer, her father and mother and her brother William are now dead. Her brother David is alive, but was not called as a witness. Her two boys were at the time aged 11 and 15 respectively, and do not profess to have anything but a hazy recollection of what was said. There remain only Mrs Stewart and Mrs Gray.

The story told by the pursuer is as follows—On the afternoon of the 27th December the pursuer met these two and told them that Davidson had made up his mind to marry her that night, and she asked them if they would come along to her house in the evening. They said they would, and

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the three of them then went to Davidson's public-house and got from him a bottle of whisky and a bottle of wine to take to Mid Street. In the evening the rest of the party had assembled before Davidson put in an appearance. On his arrival the company had a drink—‘There was a drop of spirits going, and then he asked me in front of them all if I would bring out the family Bible, which I did, and put it on the table, and then he said, “I, John Davidson, take you Bella Gauld by the hand to be my lawful wife,” and he took a ring out of his pocket and placed it on my marriage finger. When he held me by the hand and uttered those words I made a similar reply, and I said “I'm thankful it's over.” (Q) By a “similar reply” what do you mean?—(A) Just something the same statement as he made. I cannot remember exactly the words I said, and then I said I was thankful it was over. (Q) Did he do anything after this? Did he write anything?—(A) Yes, he signed his name in the Bible, and I also signed mine. (Q) Was it merely his name or an entry of the marriage?—(A) He entered into the Bible the words he said himself and signed his name “John Davidson,” and I signed myself “Isabella Fotheringham Gauld Davidson.” There was a page in the front of this Bible for recording domestic events such as births, deaths, and marriages. All the witnesses were present when this was written into the Bible.’

Thereafter supper was served, and there was singing and speeches. Davidson said—‘Now are you all satisfied?’ (Q) Satisfied with what?—(A). That he had taken me as his wife.’ This jollification went on ‘…’ until about four o'clock in the morning.

Mrs Stewart, who is the wife of a labourer, knew about Davidson's intimacy with the pursuer. She corroborates the pursuer as to what was said about her invitation to the marriage and the visit to Davidson's public-house. She says that Davidson mentioned that he was going to be married to the pursuer. Her account of what passed is as follows:—‘After Davidson arrived he gave us a dram, and he made the pursuer stand up on her feet, and he took a ring from his pocket and he said, “I take Bella Gauld as my lawful wife,” and the Bible was brought out, and he signed it and she signed it, and she said she was thankful it was over. He put the ring on her finger after he said “I take Bella Gauld as my lawful wife.” She did not say anything when he said that; she just thanked him and said she was glad it was all over. After this ceremony she put the Bible before him and he signed his name with pen and ink in the family Bible, and then she did it after him. I did not see exactly what he wrote in the family Bible; I was not just close enough to see what he wrote. I saw him writing something. (Q) In addition to signing his name did he write anything?—(A) I was not so close as to see what he wrote, but I know, whatever he wrote, that it was that he was taking her as his wife. I did not see what he had written in the Bible.’

In cross she says—‘(A) He just came in and took off his hat, and said he hoped we had been making a good night of it. The next thing he did was to take the bottle and give us all a dram out of it, those who would take it. (Q) After you had all got the dram, what was the next thing that was done?—(A) The marriage party; he put the ring on her finger. The first thing remember about this ceremony was the taking of the ring and putting it upon the pursuer's finger, and I have told the Court what Davidson said. (Q) Do you not recollect what the pursuer said?—(A) Yes, that was all she said—that she was glad it was over and she thanked him. (Q) Was it after the ring had been put upon her finger, and after Davidson and the pursuer had said what you have told us, that the Bible was got?—(A) Yes—no, the Bible was brought forward before the ring was put on her finger. It was a big family Bible. I could not tell you what kind of binding it was in because I never took that particular attention. I never thought it would come to this to take all the particulars. I did not see what was written in the Bible at the time, and I do not know what was written in it either by Davidson or by the pursuer. After the signing of the Bible had been done there was nothing more said about what had taken place.’

Mrs Gray, who is a sister of Mrs Stewart, speaks about the visit in the afternoon to Davidson's shop. Her account of the evening proceedings is as follows:—‘John Davidson arrived last of the party. After he arrived on the scene he told Bell to bring forward the Bible and he said he was going to marry her. So she brought forward the Bible, and he took a ring out of his pocket, and he took her by the hand and he said, “I here take you, Bella Gauld, for my lawful wife,” and he put the ring on her finger and they both shook hands and signed their names in the Bible, and she said, “Well, I am very glad it's all over now.” (Q) After she said that, was any writing done in the Bible?—(A) Yes, they both signed their names. I saw them do so. Nothing else that I remember was done except that they signed their names. I do not remember whether anything else was written into the Bible.’

I do not regard the pursuer herself as a credible witness for reasons which I shall state later, and while I cannot say that I saw anything in their demeanour in the witness-box which led me to doubt the credibility of Mrs Stewart or Mrs Gray, their evidence is in my opinion insufficient in the very peculiar circumstances of this case to warrant the inference that there was a serious interchange of consent by the parties. The different accounts of what took place agree generally as to some of the leading incidents or features of the ceremony—Davidson's declaration, the Bible, and the ring. But Mrs Stewart and Mrs Gray depone that the pursuer made no such declaration as Davidson made. She merely at the end of Davidson's declaration said she was thankful it was all over. There was no express interchange of matrimonial consent therefore, and I think that it is at least doubtful on the authorities ( e.g.,

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Fraser, H. & W. i, pp. 295–7; M'Adam v. Walker, 1 Dow. 148; Aitchison, 1 D. 42) whether the pursuer merely by her conduct can be taken to have indicated her assent to Davidson's declaration, and to have consented to take him as her husband. Looking to the existing relations of the parties something more definite than silence, or an observation which was largely irrelevant, was requisite to instruct deliberate matrimonial consent. But be that as it may, the want of an express declaration deliberately and solemnly made by the pursuer that she accepted Davidson as her husband indicates to my mind that she regarded the whole affair, as I think Davidson did, as an idle farce, furnishing an excuse for a merrymaking in celebration of Davidson's birthday. It is not as if on the faith of what took place the pursuer was about for the first time to surrender her person to Davidson. The latter had nothing to gain by it. She had been his paramour for several years. There was no child to make legitimate. The pursuer was fond of Davidson, but in my opinion she was quite indifferent as to whether she had the status of a wife or not. That kind of consideration did not occur to her at all.

It is averred on record with reference to the divorce proceedings—‘At the hearing of the case Lord Low remarked on the difference in age between Davidson and the pursuer, and asked Davidson what he proposed to do for her, looking to the unfortunate position he had got her into. Davidson replied that he intended to marry her.’

This would have been of some importance if true, but there is no proof at all that anything of the sort was said by the Judge, or that any such reply was made to the Judge by Davidson.

The Bible in which the entries are said to have been made has disappeared. The pursuer admits that she attached no special importance to it. But this she would certainly have done if she believed that a marriage had been celebrated and that a solemn attestation of it had been recorded in the Bible.

The ring has not been made forthcoming. It was not produced or exhibited at the proof, and there is no evidence that the pursuer was ever seen to wear a ring after the 27th December.

The pursuer did not definitely change her name to Davidson. It is abundantly clear that she was generally known as Bella Gauld or Bruce, though sometimes spoken to as Mrs Davidson.

As a matter of fact, to the outer world the relations between her and Davidson continued on precisely the same footing after as before the alleged marriage.

If the pursuer seriously regarded the ceremony of 27th December as truly constituting very marriage between her and Davidson, it is difficult to understand how it came about that so small a number of people were made aware of its having taken place. She does not suggest that Davidson expressed any desire to make a secret of it or exacted a pledge of secrecy from her. Her case and her evidence is to the effect that she did not make or attempt to make a secret of it. All that she says is that Davidson made first his mother, and after her death his sister Mary, the excuse for not taking up house with her. There is no corroboration of this, and in my opinion the evidence of the pursuer without corroboration is quite unreliable. She is obviously of a nervous and exciteable temperament, and through this and her drinking habits she has got into trouble more than once. Between 1883 and 1908 she was ten times convicted in the Police Court, generally for breach of the peace, but on two occasions on somewhat graver charges. Her story of her last meeting with Davidson after he had gone to live in Montrose, but had come in to Dundee to attend the funeral of his brother Donald (October 1917), is clearly disproved by the evidence of Mrs Smith and Mr George Davidson.

She admits that she was not introduced to any of his friends by Davidson, and no witness outside her own immediate relatives or friends was examined in support of her claim that she was recognised or treated by Davidson as his wife excepting Leitch, Gordon, and Mrs Brodie.

Leitch, who was a police officer in Dundee, says that shortly after the divorce case he asked Davidson what he was going to do with Bella, and he replied that he had kept company with her for a long time, and he was going now to make her his wife. After stating that these were the words used by Davidson he goes back on that, and in answer to a leading question gives a totally different version of what Davidson said. Much importance cannot be given to testimony so elicited and so uncertain. Leitch had little opportunity of seeing the parties after the alleged marriage, and anything further he says about them is just as consistent with the pursuer being Davidson's mistress as with her being his wife.

Gordon's evidence is of more importance. He was also in the Dundee Police Force (for thirty-five years), and at the time he retired he had attained the rank of inspector. He speaks to Davidson at the conclusion of the divorce proceedings having said with regard to the custody of Peter, ‘I'll look after the child,’ and ‘I mean to make her’ ( i.e., the pursuer) ‘my wife.’ He further says that not long after he met the pursuer and Davidson together in the street, and Davidson said—‘You see I have been as good as my word. I have made her my wife.’ But it is fairly clear that Gordon did not take Davidson seriously. He is asked—‘When you were present has the pursuer when she spoke always spoken as if she were the wife of Davidson?—(A) Always. In fact I never knew whether they were or not, but they took it in good part that they were man and wife.’ In cross he says—‘(Q) When you met the pursuer and Davidson afterwards in the street in Dundee, and when you say Davidson told you of the marriage to the pursuer, did you not make an inquiry as to it?—(A) No, not me; I was not in the least interested in the case at all. … I did not ask him where and when the marriage took place and he did not tell me.

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I just took the remark he made and left it at that.’ He lost all trace of Davidson after 1902.

The upshot of Mrs Brodie's opinion of the relations which existed between the parties is expressed in her cross-examination:—‘ Cross.—(Q) Did you think that Mrs Bella Gauld and Davidson were married?—(A) Well, I did not like to pass what I thought, but I did not think he was altogether married like. (Q) Did you think he was making a joke?—(A) I thought he was making a joke, but she did not seem to think it was a joke.’

Reliance was placed by the pursuer on the evidence of her son Peter Bruce. He is now 31 years of age and is a seedsman to trade. He gave his evidence with apparent frankness and candour. A year or two before the war he put it, he says, to Davidson—‘Did you marry my mother’—‘Was it right,’ and Davidson replied ‘Yes I married your mother Peter and I mean to stick to her.’ Peter says he put this question because he did not like the double game that Davidson was playing going and living sometimes with his own people. I do not quite understand how the question came to be put—if it was put—a year or two before the war, because Davidson was at that time practically living for the whole year with his sister at Montrose and in no sense living with the pursuer, and had been doing so since 1903. Davidson being dead this evidence cannot be tested, and that is a difficulty which occurs again and again in this case. The proof is one sided and lacking in the testimony of independent and impartial persons. If he said what is imputed to him, Davidson, who was fond of Peter as he was of the pursuer's illegitimate child Stewart Gauld, may have been merely trying to make things easier for Peter. It must be noted that Peter himself never addressed his mother as Mrs Davidson but always as Mrs Gauld, and he admits that very few persons called her Mrs Davidson—Davidson's habit appears to have been in speaking of her to her sons to refer to her as ‘mother’ and not as ‘my wife.’

The evidence with regard to the amount of money paid by Davidson is very uncertain and inexact, and it is impossible to form any definite impression as to how often or in what amounts or by whose hands she received the money that was given her, but I am satisfied that no definite allowance was made to her at any time, and further, that after Davidson's withdrawal to Montrose the payments became more than ever haphazard and intermittent.

At no time during his life did the pursuer assert any claim to be Davidson's wife. Only one letter written by her to Davidson has been produced; it is dated 23rd June 1918. It commences ‘My dear friend,’ and concludes ‘Your ever affectionate friend, B. G.’ That is not a letter from a wife to her husband, and the reason given by the pursuer for signing herself ‘B. G.’ is not convincing, viz., that Davidson told her ‘to address his letters that way as his sister Mary was in the habit of opening them, and Grace also.’

Then again, when after Davidson's death she called at the office of the solicitors of the executor she did not claim to be Davidson's wife. I accept Mr Patterson's evidence as to what passed. She gave her name as Mrs Gauld, and she said that she came to ask if John Davidson had left her anything under his will and that he had promised her £1 a week after his death. She was asked why she had been promised a legacy, and she explained that she had had very intimate relations with Davidson, and that owing to that her husband Mr Bruce had divorced her in the Court of Session. Mr Patterson asked her if Davidson had married her after the divorce proceedings, and she said no; he told her he would not marry as long as his mother and sister were alive. She made no mention of the alleged irregular marriage. She swears that she replied in answer to Mr Patterson's question that she had not been married before a minister. That is denied by Mr Patterson.

During his last illness Davidson expressed no desire to see the pursuer. He was asked on his death-bed by his nephew George Davidson and his sister Mary whether she had any claim upon him and he said ‘None whatever.’ He made no provision of any sort for her in his will.

I have examined the evidence at some length. I quite assent to the view maintained by the pursuer's counsel that she does not profess to be able to establish a marriage by habit and repute. But for the reasons I have stated the evidence as to what passed on the 27th December is not in itself sufficient to establish a marriage, and it is necessary therefore to look to the whole other circumstances that have been proved to ascertain whether they corroborate and complete the oath of the pursuer so as to warrant the inference that there was a marriage between her and John Davidson.

In my opinion they do not.

Accordingly I shall repel the pursuer's plea-in-law and sustain that of the defenders, and assoilzie the defenders from the conclusions of the summons.”

The pursuer reclaimed, and argued—Notwithstanding the lapse of time since the ceremony, the evidence of serious interchange of matrimonial consent was clear and sufficient. The subsequent conduct of the parties was explained by the husband's desire that the marriage should be kept from the knowledge of his relatives. The following authorities were referred to:— Aitchison v. The Incorporation of Solicitors, 1838, 1 D. 42; Leslie v. Leslie, March 16, 1860, 22 D. 993; Maloy v. Macadam, January 9, 1885, 12 R. 431, 22 S.L.R. 243; Glass v. Glass's Trustees, 1908, 15 S.L.T. 716.

Argued for the respondents—What took place at the alleged ceremony was not seriously intended by either party to constitute a marriage. There was no deliberate interchange of matrimonial consent. The conduct of the parties during the subsequent period of twenty years was not consistent with a real marriage. The following cases were cited:— Jolly v. Macgregor, 1828, 3 W. & S. 33; Lockyer v. Sinclair, 1846, 8 D. 582; Beattie v. Baird, 1863, 1 Macph. 273;

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Roxburgh v. Watson, 1868, 7 Macph. 19; Dysart Peerage Case, 1881, L.R., 6 A.C. 489; Petrie v. Petrie, 1911 S.C. 360, 48 S.L.R. 225.

At advising—