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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir James Campbell of Ardkinglass, Bart. - Lushingto - Keay v. Madame L. Taline Sassen and W. M'Kenzie, W. S. - Jas. Campbel - Robertson [1826] UKHL 2_WS_309 (23 March 1826)
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Cite as: [1826] UKHL 2_WS_309
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SCOTTISH_HoL_JURY_COURT
Page: 309↓
(1826) 2 W&S 309
CASES DECIDED IN THE HOUSE OF LORDS ON APPEAL FROM THE COURTS OF SCOTLAND, 1826.
1 st Division.
No. 26.
v.
Bill Chamber.
Subject_Husband and Wife — Aliment — Personal Exception. —
Held (reversing the judgment of the Court of Session), 1. That a woman having failed to establish a marriage, —which she alleged was constituted by certain written documents, in which she was recognised as the defender's wife,—was not entitled to found on them to the effect of obtaining a permanent aliment during her life, she being fully aware that they had been given not intuitu matrimonii, but for another purpose, and not alleging that she had been seduced; and, 2. That it is incompetent to award interim aliment in a declarator of marriage resting on the mere allegation of the pursuer, and while no evidence of the marriage has been produced.
In 1817, Madame Lina Taline Sassen raised an action of adherence and aliment against Sir James Campbell, stating, that “in the month of May 1804 she was married to the said Sir James Callender, otherwise Campbell, and now designing himself Sir James Campbell of Ardkinglass, at St Germain-en-Laye, near Paris, and thereafter they lived and cohabited together as husband and wife, and there were several children born of their marriage, one of whom is still in life.” The summons then stated, that Sir James had deserted her, and concluded that he ought to be decerned “to adhere to and cohabit with, treat, and entertain the pursuer in all respects as his wife, and to discharge all the duties incumbent on him as her husband; and, in case of his non-adherence,” be decerned and ordained to pay to the pursuer the sum of £300 sterling of yearly aliment, and that in advance, at two terms in the year,” &c.
With this summons, she produced a power of attorney, granted in her favour by Sir James, dated Paris, 23d June 1808, in contemplation of her going to Scotland on business, in which
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“I received yours, my dear Lina, on the 18th of October, and was very unhappy to find you had been so long ill, and have made so disagreeable a journey. I have this day got yours of the 22d of November. I make no doubt, as you say, things will at last go well, and I approve of all your proceedings. I have only to repeat, pay attention to my affairs as you have done hitherto, with prudence, slowness, and circumspection. The more affairs of a family are complicated, the more the above conduct is needful; and in all the information you require apply to George (Sir James's son), Dundas, Davidson, and B. Campbell, because they are all men of good sense and the highest honour. I received your letter of the 18th of October, which I answered by Mr Mountflorence, addressed to Mr Adams, which I hope you have received, and I beg you will pay attention to the contents. Our brother and sister occupy her house here at present. I hope your, present situation will go on well. Take care of yourself, and observe, from our family affairs, it is of consequence to you to lie in where you are. In my next letter I will send you an order for what money you will require for some time. If you was not so far from me, I should be angry with you, for not telling me in either of your two letters any particulars of George, James, or Randall. Give them my warmest blessing, I love them more than they can love themselves. Tell me everything about my daughters. Are George's children pretty ? Who are they like ? I hope like him in everything. My best wishes to my brother John Campbell. I shall conclude, because I shall write to you very soon indeed, and send you the draft I mentioned. It will take some time to recollect the points you asked me. Therefore let all family affairs rest until you receive my next. May God bless you, yours most affectionately, J.C”
Subjoined to this letter, was another, from Mrs Eliza Callender
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“My dear sister, I was sorry to find upon my arrival here you was gone, and that your journey had been so bad. I hope you are quite; recovered. I found my brother in good health and spirits. We see him very often, I brought the gown I wrought for you; my brother will take great care of it till you return. When you write give me a few lines. I suppose you have seen all our friends in Edinburgh. Give my best love to Mrs Kenneth Callender, and Mrs Flint, and all their children. If you will call upon my mother she will be very happy to see you; she lives in James's Court, in the Old Town. I wrote to her by Mr Mountflorence. The Colonel joins me in best love to you: Believe me, my dear sister, yours affectionately,” &c.
In evidence of her reception in Scotland, as his wife, she referred to a letter, addressed to her as Mrs James Callender; from Sir James's brother, in these terms:—
“My dear madam, —I intended having the pleasure of writing to you, long before this, in answer to your kind favour; but hearing by Mr Mountflorence, that your husband was expected in London; I delayed writing, but there is now no appearance of this happiness. No doubt the time is hastening to this desirable visit, and to remain in his own country. I am glad to hear matters are better than others told you. I hope you are now at Craigforth, and that your son-in-law is kind to you, as he, I am certain, is a man of honour. My family were happy to hear from you, and beg their assurances of friendship. I have nothing more to write you, not being in the gay world, and public matters are very bad; pardon this short letter. I will be glad to hear from you and how you go on and succeed. I am, dear madam, your affectionate brother.”
She also founded on a paragraph of a letter, addressed to her as Mrs Campbell, and written by a daughter of Sir James's brother-in-law:—
“Saturday evening,—My dear madam, as I did indeed sympathise with you in your distress when we met last, I rejoice to find by your letter that you are in better spirits, and I trust, health too, which, I am very sure, hearing from your husband must greatly contribute to.”
She likewise referred to a letter from Sir James's son, addressed to her, and having prefixed to it, on the same sheet, a copy of a memorial relative to the estates of Craigforth and Ardkinglass, and a copy of a letter from the late Honourable Henry Erskine, the father-in-law of Colonel George Callender,
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“Madam,—Although Colonel Callender and myself have already submitted to the consideration of Mr Clerk, the counsel chosen by yourself, everything necessary to form a full opinion on the merits of the Colonel's right to the estate of Craigforth, yet, being desirous of possessing you with the means of making your case known to any other man of business you may apply to on the subject, I enclose you, at Colonel Callender's desire, a memorial, containing a full and precise statement of all the proceedings that have taken place relative to the business. As this measure has been adopted from a sincere desire to convince you of Colonel Callender's readiness to afford you justice, and to save you from trouble and expense, permit me to hope that you will avail yourself of the opportunity given you of satisfying your mind, by resorting to legal opinions of such respectability as to avoid the risk of involving yourself in any measures tending to create unnecessary trouble and expense, either to yourself or your husband's family, which I should regret more on your own account than on theirs, feeling as I do for your situation. I remain,” &c.
She also produced an agreement entered into in August 1815, between Sir James and his son Colonel Callender, relative to his estates in Scotland, in which there was inter alia this article:—
“In the third place, the said George Callender hereby becomes bound to pay to the widow of the said James Campbell, in case he shall leave a widow, the sum of £300 Sterling, of yearly life-rent annuity during her life, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first half yearly payment at the first of these terms that shall happen after the death of his said father, with one fifth part more of liquidate penalty for each term's failure in payment of the said annuity, and the legal interest of the same from the respective terms at which the same become due during the not payment; and the said George Callender binds himself and his foresaids to pay to the lawful child or children, if his father shall leave any such by such widow, the sum of £1500,” &c.
She founded, also, on a letter, addressed ‘A Madame Madame Campbell, Hotel de Londres, Rue de L'Echiquier, Paris,’ dated 18th May 1815, written to her by Sir James, saying that— “I have this moment, my dear, received yours, and I make haste to answer
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And lastly, she produced a letter, dated 26th August 1816, written by Mr Ferrier, W.S. Sir James's agent in Scotland, to M. Moran, avocat at Paris, in answer to one which he had written on her behalf. He there stated—“I hold no funds at present; and if I did, I would not consider myself at liberty to pay one shilling thereof to Lady James Campbell, without his authority. The agreement between Sir James and his son Colonel Callender did not stipulate any sum to be paid to Lady Callender; but a sum was stipulated to be paid to Sir James himself, to enable him to clear his debts on the continent; and 1 understand the said sum was paid to him accordingly. The agreement stipulates a jointure of £300 a-year to his lady at his death, being the whole and the only interest she has therein. The child is to have a provision of £1500, and is placed under the guardianship of her uncle Major Callender.”
Sir James, in defence, denied the assertion of the pursuer, that there had been a marriage; and he stated, that she had from her early years lived in a state of prostitution; that they had become acquainted in a brothel in Rue Mont Blanc, in Paris; that she was registered in the books of Police as such; that she came to his house as a servant, and thenceforth lived with him as his mistress; that no marriage between them was celebrated at St Germains-en-Laye (in support of which assertion he produced certificates from the curate and mayor of that place), nor elsewhere; that she knew that she was not his wife; and that the power of attorney was given to her merely to enable her to execute some important business in Scotland, as he could not go there at that time on account of the war; and lastly, that having complained to the Police in Paris, of the vexations which he experienced daily from her pretending to be his wife, and extorting money from him, she was called before it; that she there produced a piece of ragged paper, setting forth that in 1804 her marriage had been contracted at St Gerinains-en-Laye, and celebrated by a Protestant, minister, assisted by two witnesses,
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On seeing these defences, she petitioned the Commissaries to be allowed to amend her libel, by adding to the narrative, that the parties had owned and acknowledged themselves, both verbally and in writing, to be married persons, and were habit and repute husband and wife, and as such, were owned and considered by their friends, neighbours, and acquaintances; and to conclude, that it should be declared that the parties “are lawful married persons, husband and wife of each other; and that the child procreated of the marriage is a lawful child:” and she also prayed for interim aliment of £300 per annum and bygones for two years.
The Commissaries allowed the amendment, and decerned for £200, on account of aliment generally; but refused to modify a specific sum of interim aliment, at a fixed rate per annum: and thereafter, in respect Sir James was a native of Scotland, and proprietor of an entailed estate in Scotland, they sustained their jurisdiction, and ordered a special condescendence of the grounds of the action.
The pursuer accordingly lodged a condescendence, in which she averred that she was of good and honourable birth; that she had been married to Sir James by a Protestant clergyman at St Gcrmains-en-Laye, but had lost the certificate; that Sir James had assured her, that the marriage was good according to the laws both of France and Scotland; that they had afterwards cohabited for many years as man and wife; that their children were recognised as lawful children; and, in support of these allegations, she referred to the above documents. Sir James repeated his former statements, and maintained, that the law of the residence was the rule in regard to the constitution of marriage; that by the law of France no acts of acknowledgment or declaration, without certain prescribed formalities, could constitute marriage; and that the pursuer knew well that the parties never had been married, nor ever proposed marriage.
The Commissaries having appointed the pursuer to state what she averred to have been the law of France at the date of the alleged marriage, with regard to the constitution
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She then proposed, and was allowed of new, to amend her libel thus:—
“In the event of its being found that the pursuer is not lawfully married to the said James Callender, otherwise James Campbell, now designing himself Sir James Campbell of Ardkinglass, the pursuer ought to have our sentence and decreet decerning and ordaining him, the said defender, to make payment to the pursuer of the sum of £5000 Sterling, or such other sum, less or more, as shall be ascertained in the course of the process, in name of solatium or damages, on account of the gross imposition and fraud committed by the said defender in leading her, the pursuer, to believe she was lawfully married; or at least, that the declaration, consent, and cohabitation of the pursuer and defender, as man and wife, would make a legal and sufficient marriage by the law of Scotland (where his property was situated), and continuing the same fraud and imposition, by executing formal and important deeds, one or more, wherein she, the pursuer, is expressed, designed, and declared to be, and published to all as his, the defender's, wife; and further, by repeated declarations of the defender to many persons in France, Holland, and Scotland, that she, the pursuer, was his, the defender's, lawful wife; lastly, and in any event, the pursuer ought to have our sentence and decreet.”
The Commissaries having allowed a proof as to the new allegation of a marriage in Holland, and the law of that country; and the proof having been reported, they found that the pursuer has failed to establish the constitution of a marriage betwixt the parties, either in France or in Holland, according to the laws of those countries at the period to which her allegations relate; but ordain the parties to give in memorials on the point, whether the pursuer is nevertheless entitled to found upon the written evidence in process as proof of the constitution of a marriage betwixt the parties in Scotland, by any form known in the law of this country, or as founding a right to aliment in the event of her failure to establish her conclusion for marriage; and under this latter head, particularly to examine the authorities and precedents applicable thereto.”
Thereafter, on advising the memorials, the Commissaries found that the evidence adduced in behalf of the pursuer “is not
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Both parties advocated, and the Lord Ordinary having reported the case on memorials, the Court, on advising them, appointed a hearing; and thereafter sisted procedure, until a supplementary action relative to the claim of aliment should be raised by the pursuer before the Commissaries.
The Lord President observed, in reference to the merits—I can find no authority in support of the possibility of a marriage, where one of the parties is in this country and the other is out of it. It is true, that by the principles of our law mutual consent is sufficient, but I cannot venture, where there is no precedent or authority for it, to say that marriage may be constituted under
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With regard to the claim of damages, I rather think it rests on different principles. There has certainly been no seduction, and there is no allegation to that effect. But in the whole circumstances, I think some aliment is due. I cannot, however, agree that she should be allowed so much as has been awarded by the Commissaries. If she had been a virtuous woman, they could scarcely have given her more; and even as his widow she would not have drawn a larger allowance.
On the first of these points I shall say very little. The principles by which it is to be decided have been fixed by the cases of M'Innes, Sheddan, &c. It is no doubt true that consent constitutes marriage, but that consent must be deliberate, mutual, and
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The second conclusion is for aliment or damages, and it is rested on averments that Sir James had been guilty of fraud and deception in making the pursuer believe that she was his lawful wife. This therefore depends on fact, and of which a proof must be allowed, unless we are of opinion that there is sufficient before us to decide the case. If a proof at large were allowed it would be ruinous to both parties, and I have therefore been anxious to avoid it, and I think we can do so. In this question we are untrammelled by the principles of international law. All we have to do is to look at the documents before us, and to consider their effect as giving a claim of damages by the law of Scotland. Now, I apprehend, that if Sir James had died and the pursuer had claimed terce as his widow, these documents would have warranted a jury in serving her. Or suppose a legacy had been left to her, I conceive Sir James would have been entitled to payment of it jure mariti on exhibiting these letters. She could not have denied effect to them. Therefore these documents are important in considering the present question. But farther, the parties lived together from 1804 till 1816—she behaved irreproachably during that time—had a family by Sir James—was acknowledged by all his relations as his wife—and was intrusted by him under that character with extraordinary powers. I therefore apprehend that she is entitled to demand aliment from him. Now, what is the defence ? He says that all the papers were framed for the purpose of deception. But can we listen to such a statement from him ? Certainly not. Perhaps there may be some objections to the summons in point of form; but I think as justice is with the pursuer, we ought to sist process till a supplementary summons is brought by her.
To constitute marriage by the law of Scotland consent alone is necessary; but that consent must be deliberately given by both parties eo intuitu. If either of them have any other purpose in view than that of marriage, and this be clearly established, then the consent will not be of that nature which is required by law. If this doctrine be well founded, there is an end to the conclusion for adherence. The purpose of granting the letter
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On the question as to the claim of damages I agree entirely with Lord Balgray, and when it is brought before us in proper shape she will be found entitled to it. There is, however, no pretence for alleging seduction.
A supplementary action, ob contingentiam of the former action, was accordingly raised and brought into the Court of Session. After a recital of the facts and circumstances already detailed, it stated, “That although the pursuer should fail in establishing a legal and valid marriage to subsist between her and the said defender, and although she should fail to prove that at the commencement of their connexion, the defender committed a gross fraud and imposition by leading her, the pursuer, to believe that she was then lawfully married, or. that the declaration, consent, and cohabitation of the pursuer and defender, as man and wife, would make a legal and sufficient marriage by the law of Scotland, all as stated in her former summons and amendments thereof aforesaid, still the defender would, by his subsequent acts and conduct, be liable to the pursuer in damages: In so far as he, the defender, for many years received, treated, and acknowledged the pursuer as his lawful wife, and had the children procreated of their bodies during this intercourse publicly baptized as his lawful children, and afterwards acknowledged them in that character. In particular, the defender, in various deeds and instruments, owned and acknowledged the pursuer as his lawful married wife; and more especially, he styled and designated the pursuer as his wife in the letter or power of attorney before-mentioned, and in the letter of the 28th December 1809, before recited, which is holograph of the said defender, and by him addressed to the pursuer; and in the contract of agreement between him and his son Colonel George. Callender, the defender made provision
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The Court thereupon remitted “to the Lord Ordinary to remit to the Commissaries, with instructions to them to adhere to that part of their interlocutor of 9th March 1821, which finds that the evidence adduced on the behalf of the pursuer is not relevant to infer marriage betwixt the parties; and also so far as it finds the defender liable in aliment to the pursuer: but to alter the same in so far as to find the pursuer entitled to an aliment of £200 per annum only, payable to her quarterly all the days of her life, deducting such sums as have already been paid to account”—with expenses. And in the supplementary action they remitted, “to find the pursuer entitled to an aliment of £200 yearly, payable quarterly, all the days of her life, and commencing the 5th day of February 1819, when the pursuer lodged the original amendment of her libel in the Commissary Court, claiming a solatium or damages in
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In the course of these proceedings, various applications had been made to the Commissaries for interim aliment, and granted; and Sir James having complained by advocation, the Court of Session adhered, with expenses.
Against these interlocutors Sir James appealed. Madame Sassen made no appearance; but a Case was lodged, and counsel appeared for William M'Kenzie, who had become cautioner under an application for execution, pending appeal, to repay the interim aliment granted in the course of the process, and expenses, in case of a reversal.
Appellant.—The documents produced do not instruct the allegations, on which the pursuer claims aliment. The appellant's counter averments are relevant, and destructive of the claim; and there is in their nature no reason why he should not be permitted to prove them. The first summons was an action of adherence, but the amendment converted it into a declarator of marriage. Under it, however, there could be no aliment found due until decree of marriage had been pronounced. Then came the third amendment, and claim for a solatium and damages, resting on the alleged deceit practised by the appellant on the pursuer, in making her believe either that she was married, or would be so by the law of Scotland. But, even if there could be alternatives in the allegation of imposition, these alternatives destroy themselves; and, supposing either to be true, the pursuer does not give them relevancy by alleging seduction in consequence of that deceit. There is no relevancy in the charge of the supplementary action—no subsequent acts, short of celebration of marriage, can afford the pursuer ground for her claim. There can be no continuance of a deceit which has not been proved to exist previously. All that the pursuer can qualify, is, that she continued to assume the character which she knew to be false— which the appellant knew to be false—and which, as to third parties, was an imposition. Besides, all these averments must be proved, and the appellant has opposed to them the most peremptory
_________________ Footnote _________________ * See 2 Shaw and Dunlop, No. 175, and Vol. 3, Nos. 114 and 115.
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There was no ground for interim aliment. The instant the pursuer amended her summons, and converted her action into one of declarator of marriage, her claim for aliment ceased. No instance is on record where aliment has been given before a proof has been led in the declarator. Aliment is allowed only because, during marriage, the property of the wife passes under the dominium of the husband. Therefore, in an action where the fact of marriage is admitted, aliment is due. This is an onus that necessarily follows the status to which the husband has consented. But marriage must either be proved, or circumstances admitted sufficient to make a legal marriage, before aliment can be allotted; otherwise a woman might allege marriage, and enjoy aliment, until, after a protracted suit, the imposition was discovered. If a woman hold a written promise do presenti, and found on it in her summons of adherence, and the defender concedes that it is his letter, but alleges that it was given alio intuitu, in that case aliment ought to be given, because he admits what by the law of Scotland is a marriage, and tries to get the better of it by pleading a defence, which it is incumbent on him to establish. Again, if the woman alleges a regular Scotch marriage in kirk, which the defender admits, but says, that he is not her husband, because she has a prior husband alive; then aliment is due, because the onus of proving that allegation lies on the defender; and, in the meantime, he must pay aliment. If an opposite rule were adopted, and the mere statement of a pursuer were received, it would be in any woman's power to pursue any
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Respondent ( Mackenzie.)—The parties lived together, and were received as man and wife. The appellant allowed the pursuer to take that character and status, and introduced her as such to his friends, and recognized her as such himself. The evidence afforded by the documents produced was sufficient to authorize a court to award aliment. It is no defence, that his whole conduct was a system of deception and fraud, and that he was deceiving both the pursuer and his own relations. She alleges she was seduced to continue to live with him on the faith that she was his wife; and there is no charge of misconduct after the acknowledgment. A personal exception, although incompetent in a question of status, may be competent in a question of aliment. By the law and practice of Scotland, aliment is due, though the facts proved do not ultimately turn out to amount to an effectual marriage; at least interim aliment, while maintaining a right to the status, is due; and the pursuer having, bona fide, received and consumed the sums paid, it would be most unjust to enforce a repetition of them from her surety.
The House of Lords, in the principal case, declared, “That the respondent having failed to establish her marriage, is not entitled, under either of the summonses, to recover aliment or damages against the appellant, and, with this declaration, it is ordered and adjudged, that the said interlocutors, so far as they are complained of in the said appeal, and so far as they are inconsistent with this declaration, be, and the same are here by reversed.”
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In the question as to interim aliment, the House of Lords declared, “That the respondent was not entitled to interim aliment, and therefore it is ordered and adjudged, that the interlocutors complained of in the said appeal, so far as they are inconsistent with this declaration, be, and the same are hereby reversed.”
I always experience great anxiety when I feel myself under the painful necessity of differing from the view taken of a case in the Court of Session; and if in any case, more particularly I feel it on the present occasion, because, when I state the various proceedings that have taken place in this case, your Lordships will clearly see, that the matter has been very much considered by the Court of Session. At the same time, if, after due consideration of the circumstances of the case, and the law, as applicable to them, I feel myself under the necessity, consistently with the duty I owe to your Lordships and to the parties, of differing from that decision, I ought not to hesitate in pronouncing that opinion, although it should differ from the opinion expressed in the Court below.
The appellant in this case is a gentleman, calling himself Sir James Campbell of Ardkinglass, in the county of Argyle; and the respondent is a lady of the name of Madame Lina Taline Sassen, who styles herself Lady Campbell, as spouse of Sir James Campbell of Ardkinglass. It appears that, many years ago, Sir James Campbell, or, as he was then called, Callender, being in France, contracted an intimacy with this lady, and continued to cohabit with her in France, and other parts of the continent, till 1815. In the year 1817 this lady came to Scotland, and Sir James Campbell having contended that he never had contracted a marriage with this lady, she instituted proceedings in the Commissary Court of Scotland, for the purpose of compelling him to treat her as his wife, she stating that she was his wife.
The first action was an action of adherence, which is an action founded on the allegation that a marriage has actually taken place between the parties, to compel the husband to maintain the lady as his wife, and discharge all the duties incumbent upon him as a husband; and in case of noncompliance, to decree aliment against him for support of the lady.
In this action of adherence, she founded her marriage on circumstances that had taken place at St Germains in the month of May 1804. Her allegation was, that “the pursuer was married to the said Sir James Callender,
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Defences were given in by Sir James Campbell, in which he denied positively the fact that any such marriage had taken place. I should have stated to your Lordships, that, in the summons, the lady referred to certain papers which she produced; one is a letter of attorney, dated Paris, 23d June 1808, in which the appellant describes her as his “beloved wife.” Some letters also were lodged by her, in some of which it appeared that he addressed her by the name of Mrs Callender and Campbell, and treated her as his wife. Sir James Campbell, by his defences, denied the marriage; and he produced various documents to show, that some proceedings had taken place in Paris upon the subject, and that there bad been a certificate granted by the mayor of St Germains, stating that no marriage had taken place between the parties. In consequence of this defence on the part of Sir James Campbell the marriage was put in issue, and the question was, whether it was a marriage or not? The consequence was, that this lady was obliged to alter her course. An action of adherence is founded on the notion that the marriage had actually taken place, and if it be admitted by the defender, the cause then proceeds, and the Court determines whether he shall treat her as his wife or grant her alimony; but in consequence of this direct denial of the marriage, she was obliged to alter the form of action, from an action of adherence to an action of declarator, to have it declared that there was a marriage, and then to have it tried whether there was a marriage or not. She then petitioned for leave to amend her libel; and at the same time that she applied to amend her libel, she also applied for interim alimony of £300 per annum, with bygones for two years; she also applied, in the event of the marriage being established, that there might be a conclusion for alimony. Leave was given to her to amend her libel; and in consequence of that she amended her libel, by introducing a conclusion for a “declarator of her marriage, which (as she stated in her petition), in the present state of the process, is competent, and has been rendered necessary by the conduct of the defender himself, who, notwithstanding his cruel treatment of the petitioner, was not expected to go the length of denying her to be his lawful wife; and in order to have the amendment made, the petitioner humbly produces the same, and craves your Lordships to admit thereof.” The proposed amendment consisted of the following addition to the narrative—(His Lordship here read it.)
In consequence of this allegation, the Commissaries pronounced an interlocutor, decerning for £200 to account of interim aliment generally; and they adhered to this interlocutor, on advising a reclaiming petition. The first appeal in this case has been brought against this interlocutor of the Court of Commissaries, allowing interim alimony. It may be proper
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My Lords, an appeal was brought by Sir James Campbell against this allowance of interim alimony, and that appeal was met at your Lordships' bar, by the appearance of a gentleman who had become cautioner for this lady, for the return of this alimony in case it should be found that she was not entitled to it. It is very true, that in an action of adherence, for instance, or in an action of declarator of marriage, if the marriage be admitted by the party complained against, the Court will decree interim alimony—that is, alimony to be paid to the wife before the final decision of the question; but it was contended at your Lordships' bar, that in an action of declarator of marriage, no instance could be found in which interim alimony had ever been allowed where the marriage was denied, and where proof of that marriage had not been given. It was admitted, that if, in this case, proof had been given of the marriage in France—that if a prima facie case of marriage had been established—the Court would, before the final decision of the case, award interim alimony: So they would, in an action of adherence, as I have stated to your Lordships, where the action proceeded upon the ground of a marriage not denied or disputed. But, my Lords, the irregularity of the case here was, that although the action was an action of adherence when this interlocutor was pronounced, yet at that very moment application had been made by this lady to change the proceeding to an action of declarator, expressly stating she had been met, to her great surprise, by a denial of the marriage by Sir James Campbell; and, therefore, being met by that, she could no longer proceed upon this action of adherence, but that it must be changed to an action of declarator. Not withstanding this, she sues for interim alimony: and although that was the state of the cause—and although the marriage was denied—and although no proof was adduced of the French marriage contracted at St Germains—and although it was only an allegation—yet
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My Lords, some cases were cited, but I think it was shown that these cases did not bear upon the present question. Because in those cases interim alimony might have been granted upon an action of declarator where there might be some doubt; but no instance could be adduced where it was given before proof was led, and before there was evidence before the Court sufficient to satisfy them that there was ground to believe that the marriage could be established between the parties. In this case, and at this stage of the cause, so far from there being evidence of that sort, this lady was obliged to abandon her action of adherence, and convert it into an action of declarator, upon the denial by Sir James Campbell that there was any marriage in fact, and it was not established. Upon this appeal, I must confess I have very little difficulty in advising your Lordships to reverse the interlocutors complained of. When I say reverse the interlocutors, I apprehend, considering the nature of these proceedings, and what may be necessary to be done in the Court below, that the safer course would be, to declare that this lady is not entitled to interim alimony, and to remit the case with that declaration, either to the Court of Session or to the Commissary Court, to apply that declaration.
My Lords, after this proceeding had taken place, and interim alimony had been awarded to her, the cause went on in the Commissary Court, and the Commissaries, in the month of February 1818, pronounced an interlocutor, by which they find, that the defender is a native of Scotland, and a proprietor of an entailed estate in this kingdom, repel the objection to the jurisdiction of the Court, and allow the action to proceed. Then they appoint a condescendence to be given in of the whole facts this lady offered to prove in support of the conclusions of her libel. It appears, that finding she could not establish a marriage according to the law of France, she then stated, that Sir James Campbell had cohabited with her as his wife in Holland, and that this cohabitation was sufficient by the law
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My Lords, after this, and while this discussion was going on, in relation to the law of marriage in Holland, she applied to amend her libel in other respects, to which I shall call your Lordships' attention. Her action was entirely confined to an action of declarator, that a marriage had taken place between her and Sir James Campbell, and she requested to amend her libel by adding a conclusion for £5000 of damages, on the ground of fraud and imposition. This amendment was allowed by the Commissaries. They had allowed her to prove her Dutch marriage; and they afterwards pronounced an interlocutor for additional interim aliment. They then pronounced an interlocutor, by which they find that she had failed to establish the constitution of a marriage betwixt the parties either in France or in Holland, according to the laws of those countries at the periods to which her allegations relate. Then they ordained the parties to give in memorials on the point, whether the pursuer is nevertheless entitled to found upon the written evidence in process in proof of the constitution of a marriage betwixt the parties according to the law of Scotland. So that this lady shifts her ground a third time, and resorts to the law of Scotland. Then the Commissaries, on advising memorials, found, that upon that part of her action the evidence adduced on behalf of the pursuer was not relevant to infer marriage betwixt the parties, and therefore assoilzied Sir James from that conclusion of the libel. That put an end to that part of her claim.— They had thus found that neither by the law of France, nor by the law of Holland, nor by the law of Scotland, had any marriage taken place between these parties; and then they went on to find, that the letter of attorney had been given by Sir James Campbell, in which he designates her as his wife, and that he introduced her by that title to several parts of his family, and that he addressed letters to her as Mrs Callender and Mrs Campbell; and therefore, in the whole circumstances of this case, and in conformity to certain cases to which they referred, they find that Sir James Campbell was bound to aliment this lady for all the days of her life, from and after the 5th day of February 1819, when the pursuer lodged the amendment of her libel, claiming a solatium, or damages, in case of her failing to establish a marriage with the defender; and with reference to the amount of the defender's annuity of £1000, modified the pursuer's aliment to the sum of £300 Sterling per annum. So that, although it is stated that she was not his wife—no legal marriage being established between them— yet, because he had represented her as his wife, and had introduced her as his wife, the Commissaries considered that Sir James Campbell (although not bound to pay the sum required by the conclusions of the libel) was bound to aliment her all the days of her life, and that it should be £300 per annum. The case was then brought before the Court of Session; and the Court of Session, after the case was stated at very great length by both parties, were, upon the finding in respect of the marriage,
Page: 330↓
In consequence of that suggestion, a supplementary action was raised; and it is important to call your Lordships' attention to the terms of that supplementary action. It sets out the former action and the proceedings, and the judgments that had been given for aliment, and then it proceeds to state, that the Court had directed the supplementary action; and then the lady goes on in this way: that although she should fail in establishing a legal and valid marriage to subsist between her and the defender, and although she should fail to prove, that, at the commencement of their connexion, the defender committed a gross fraud and imposition, by leading her, the pursuer, to believe that she was then lawfully married, and so forth, still the defender would, by his subsequent acts and conduct, be liable to the pursuer in damages.
My Lords, this supplementary action having been raised, the question came before the Court of Session, and they pronounced an interlocutor, by which they remit to the Lord Ordinary to remit to the Commissaries, to adhere to the interlocutor, in so far as it finds no marriage established, and so far as it finds aliment due; but to alter the same so as to restrict the aliment to £200 per annum; to find no marriage, but to allow £200 of yearly aliment. Now, my Lords, I feel a difficulty in understanding precisely the interlocutor pronounced; and I shall tell your Lordships why.
This judgment confirms the interlocutor of the Commissaries, pronounced before the supplementary action was raised. By that interlocutor, the Commissaries determined under the second amendment of the libel, with respect to the claim for £5000; that Sir James Campbell was not liable in any gross sum in damages, but the sum of £300 to aliment her for life. The Court of Session seem to have thought that it was difficult to support that finding, and they therefore directed a supplementary
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My Lords, the proceedings in this case are most voluminous, and I have taken rather a brief view of the whole of them, in order to bring the nature of the question succinctly before your Lordships, and the grounds upon which the Court below have proceeded in this case. I may repeat the observation I made upon the last case, as to this lady's not appearing. The cause stood over for some time, to see whether she would appeal against the finding upon the subject of the marriage, it being thought that it would be very material for her, if she could do it with any hopes of success; because, if it should be found in her favour, then there would be grounds for your Lordships to award her alimony. However, it has been represented that the state of health and mind of this lady is such that she could not be prevailed upon to institute any appeal—she being in a situation rendering it extremely difficult to make her comprehend the nature of an appeal, or the proceedings it would be necessary for her to take. The result was, that this appeal was heard before your Lordships ex parte—no person appearing for the respondent; and in this case, as in the last case which I had the honour of stating to your Lordships, I have felt a great deal of difficulty in wading through the variety of interlocutors pronounced, and examining the grounds on which they have proceeded. However, my Lords, the best attention which I have been able to pay to this case—and I assure your Lord ships that the conclusion to which I have arrived has not been without many anxious considerations, as well to the parties as to your Lordships— and the arguments that I have heard at your Lordships' bar, have impressed me—and the facts of the case, and the private consideration I have given to it, have impressed me, with a notion that it is impossible to sustain these interlocutors, upon the grounds stated in this libel. Therefore, in this case, as in the last, however painful it may be to me, I feel myself
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Mackenzie's Authorities— Lyon v. Gordon, July 20, 1655.— Drummond v. Hope, April 2,1774.—Purle, May 15, 1706.— Irvine v. Hamilton, July 13, 1706.— Castlelaw v. Agnew, Mar. 11, 1719.— Campbell v. Cochrane, July 27, 1747.
Solicitors: J. Richardson, Spottiswoode, and Robertson, Solicitors.