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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Edward Hoggan, Writer to the Signet 1 v. Elizabeth Craigie, Daughter of George Craigie, sometime residing at Clan-Gregor Castle [1839] UKHL MacRob_942 (23 August 1839)
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Cite as: [1839] UKHL MacRob_942
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SCOTTISH_HoL_JURY_COURT
Page: 942↓
(1839) 1 Mac&Rob 942
REPORTS OF CASES UPON APPEALS AND WRITS OF ERROR, AND QUESTIONS OF PEERAGE, DECIDED BY THE HOUSE OF LORDS, Session of Parliament 1839, 2 & 3 VICTORIA.
(Appeal from the Court of Session, Scotland.)
(No. 36.)
v.
[
Counsel: [
Pemberton —
Sandford.]
[
Attorney General (Campbell) —
James Anderson.]
Subject_Marriage. —
Circumstances held sufficient to constitute a marriage (affirming the judgment of the Court of Session). Per L. C. It is not necessary to prove the contract itself; it is sufficient if the facts of the case are such as to lead to satisfactory evidence, of such a contract having taken place. Upon this principle, the acknowledgment of the parties, their conduct towards each other, and the repute consequent upon it, may be sufficient to prove a marriage.
Subject_Marriage (promise cum copula). —
Question as to the application of the rule of law in reference to promise subsequente copula, in cases in which cohabitation has also preceded the promise. (See p. 971.)
Question as to the effect of a release of a promise of marriage intervening between the promise and a subsequent copula. (See p. 974.)
Statement.
An intimacy had subsisted between the appellant and respondent, which resulted in the birth of a child in September 1832. The appellant, subsequent to this event, granted the respondent a letter settling 10 l. per annum on her during life. In January 1834 the respondent discovered symptoms of pregnancy. On the 8th March 1834 the appellant delivered to the respondent the following document:—
“Dear Elizabeth,
_________________ Footnote _________________
1 15 D., B.,& M., 379.; S. C. 16 D., B., & M., 584.
Page: 943↓
This document was antedated 25th January 1824. On receipt of this document the respondent wrote and presented to the appellant the following:—
“1831, March 8th. Dear Edward, I do hereby declare to take you for my lawful husband, in terms of the document which you have made out, and that I will not make it known to any but my father, mother, and those friends which I wish to be on terms of intimacy with. But should the fact become known, and I have no hand in it, I will not hold responsible, nor forfeit my claim. I will do all to conceal it. Yours,” &c. In reference to this latter document it was averred on record by the appellant “that on perusing it, as it appeared to him to have been written for a sinister purpose,
Page: 944↓
he instantly, and in the pursuer's (respondent's) own presence, threw it into the fire and burnt it.”
On the 29th March 1834, the appellant delivered to the respondent the following additional document:—
“29th March 1834. Dear Elizabeth, It is most assuredly my intention to provide for you to the utmost extent my means will permit, during the remainder of your life, while we are separate from each other. If I made any statement last night to your sister to the contrary, it was not my intention. Whatever allowance is made is gratuitous on my part, and any abuse or attempt to compel me to increase these payments will be attended with a contrary effect. I propose giving you 50 l. this year, in full of all expenses of maintenance, payable at two terms, and the remaining years to be regulated by circumstances. The doctor and nurse's expenses to be paid. Yours truly.”
In the first paragraph of this document after the words “remainder of your life” there was originally written “while unmarried,” but the appellant, at the request of the respondent, substituted the words which conclude the paragraph as above. The above documents were the result of repeated applications by the respondent and her parents to the appellant to acknowledge the respondent as his wife. The respondent having obtained an opinion of counsel, advising her to obtain a publication of her marriage, the appellant on 1st April 1834 delivered to her the following additional document:
“I hereby declare most solemnly before Almighty God, that I never granted a letter to any one, such as I have given to you, and cannot now grant any letter with such an obligation to any other person, as I consider myself bound by my letter.” The appellant averred on record in reference to this document
Page: 945↓
that it “was written in order to satisfy the respondent about her annuity.”
On the 2d of April the respondent applied to Mr. Robert White, W. S., as her law agent, and, in consequence, after consulting counsel, a summons of declarator of marriage was prepared. An arrangement then took place, the nature of which was very differently described by the contending parties: by the respondent it was stated that the appellant had agreed, in writing, to acknowledge her status in the most unequivocal manner; the appellant, on the other hand, averred that the only obligation on his part was, that he should make an adequate provision for the respondent by means of annuity. In terms of said arrangement, (whatever might have been the true nature of it,) the parties proceeded to the house of Mr. White together, on the 22d April 1834. The respondent went into Mr. White's house, and the appellant waited for her in the street. The respondent afterwards rejoined the appellant, when she informed him that she had obtained from Mr. White the summons and the letters above mentioned. The parties afterwards went to South Queensferry in a street coach, and lunched there. While there, the respondent showed the appellant the papers she had received from Mr. White; upon which the appellant observed, that Mr. White must be in possession of other documents. The respondent then transcribed and delivered to the appellant the following letter, addressed to Mr. White:
“As Mr. Hoggan and I have now arranged the matter, I withdraw all proceedings, and request you to deliver the whole papers, originals, copies, and drafts, still in your possession, connected with this business, to the bearer, who will settle your account. I am,” &c.
The parties then agreed to cross the ferry, and before
Page: 946↓
“To prevent the unnecessary and very unpleasant exposure which must have taken place had the intended action gone on, Elizabeth and I have arranged and agreed to put a stop to all proceedings; and I hope, from the arrangements which I have made, there will be no cause to regret. We shall return to Edinburgh to-morrow or next day.”
The parties having spent the night together at the North Queensferry, they proceeded on the following day in a post-chaise to Burntisland, and the following is the respondent's statement of what took place there:
“Having left Edinburgh unexpectedly, she had no trunk or secure place in which she might put the papers she had received from Mr. White, and the letter dated 22d April 1834, which had been written and delivered to her at Queensferry. The whole consequently remained in her reticule. In the course of the evening, having gone out of the parlour for a few minutes, she left the defender there, and the reticule with the papers in it lying on a chair. On her return she observed that the defender had gone out, and that the reticule was not in the room. She became alarmed, and searched the apartments carefully for the reticule and papers, but could not find them. During her search the defender returned to the room, and on being asked if he knew where the reticule was, he presented it to the pursuer, who instantly observed to him that none of her papers were there. Upon this he admitted that he had destroyed all her letters and papers, not, as he alleged, for the purpose of defrauding her, but merely in order to obtain the delay of some months in the publication of their marriage, for which he had so
Page: 947↓
anxiously besought her parents. He warned her, at the same time, that if she mentioned the destruction of the documents, he would cast her off entirely.”
The appellant denied this version of the transaction; he admitted that the letters, &c. were destroyed, but he averred that this was done with the respondent's express consent and approbation.
After moving about for some time to different parts of the country, and for a short time separately, the appellant took a house for the respondent in Edinburgh; but, on the morning after the respondent had entered the house, the appellant having peremptorily refused to acknowledge her as his wife, or to permit her to be addressed as such, she removed to the house of her parents. The present action of declarator of marriage was then instituted.
Upon closing the record a proof before the commissaries was ordered in support of the averments therein respectively, and the same having thereafter proceeded before the commissaries, the respondent, in the course of it, called Mr. Robert White, writer to the signet, as a witness, to whose admissibility the appellant objected; and she likewise called as witnesses George Craigie, her father, and Ann Craigie, her sister, to whose admissibility the appellant also objected. The commissary-examinator made avizandum with these objections to the Lord Ordinary, and his Lordship repelled in hoc statu the objection to the admissibility of the said Robert White as a witness, reserving the effect of what might be brought out in his examination in initialibus, and made avizandum with the debate on the objection to the admissibility of the said George Craigie and Ann Craigie, the father and sister of the pursuer, as witnesses. Mr. White having thereafter
Page: 948↓
In the course of Mr. White's deposition as a witness in causâ, he was interrogated, on the part of the respondent, on what ground, and for what purpose, she had requested him to give her up the documents before referred to, but the appellant objected to the interrogatory as incompetent, and the commissary-examinator allowed the question to be put and answered, but to be taken on a paper apart, and sealed up to lie in retentis, subject to the future orders of the Lord Ordinary.
On considering the objections taken by the appellant to the examination of the said George Craigie and Ann Craigie, the Lord Ordinary remitted to the commissaries to allow their examination to proceed, and in hoc statu, to seal up their depositions, that they might lie in retentis, subject to the future orders of the court.
The proof for both parties having been concluded, the Lord Ordinary appointed the parties to prepare and lodge mutual minutes of debate upon the competency of opening up the sealed depositions, and minutes of debate having been given in, the Lord Ordinary pronounced the following interlocutor:—
“26th Nov. 1836. The Lord Ordinary having considered the minutes of debate, in respect of the special circumstances of this case, as established by the documents in process, and the proof already taken,
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repels the objections offered by the defender to the admissibility of the pursuer's father and sister, as witnesses: and also repels the objection to the question put to the witness, Robert White, and appoints the sealed packets referred to in the minutes to be opened, and to form part of the process.” 1
_________________ Footnote _________________
1 “ Note.—The Lord Ordinary, upon again considering the objection to the examination of the pursuer's father and sister, is rather confirmed than otherwise in his former opinion. The general rule unquestionably is that witnesses so circumstanced must be rejected, and the Lord Ordinary fully concurs in the opinion that actions like the present do not necessarily demand any relaxation of that rule. When a pursuer founds upon an alleged private and irregular marriage, it would be most dangerous to permit her to urge as a matter of right the secrecy of the transaction, as in itself a sufficient ground for obtaining the testimony of her near relations, the very persons who have the strongest motives for colouring or perverting the truth, and who, on the supposition of her averments being unfounded, are presumably the very persons with whose assistance the measures of the pursuer have been contrived. But the rule is not without exception. Even in the latest case, mainly founded on by the defender, that of Stewart v. Menzies, (post, p. 957,) the Court, in expressing their opinions, took for granted that circumstances might emerge in the course of the proof warranting the examination of the witnesses objected to on the ground of relationship, and accordingly, on the strength of such circumstances, a brother of the pursuer was afterwards examined.
Now, it does appear to the Lord Ordinary that the present case falls within the exception.
It is established by the documents in process, at least by copies, of which the accuracy is admitted, that the defender did address several letters to the pursuer, which, to say the least of them, are of a very equivocal character. Independently of the sense attached to them by the defender, by profession a man of business, the construction put upon them by the pursuer, the comparatively inexperienced individual to whom they were addressed, especially if that construction was known to the defender, is a point which may be of very great importance. In this view it is essential to ascertain the whole circumstances relative to the acceptance by the defender of the pursuer's letter of the 8th of March, the terms of which are, for the first time, admitted in the minute. The defender, in his deposition as a haver, admits that he received that letter and burnt it, but the addition to that testimony that it was so burned in the presence of and with the consent of the pursuer, is clearly not conclusive evidence. The only information attainable upon all those matters is to be sought for in the examination of the pursuer's near relations, to whom, by the most positive injunctions of
Page: 950↓
Against the above-quoted interlocutor the appellant presented a reclaiming note to the First Division of the Court, and upon advising the same, their Lordships of this date pronounced the following interlocutor:—
“The Lords having advised this reclaiming note, and heard counsel for the parties, refuse the desire of the reclaiming note, and adhere to the interlocutor reclaimed against; find the pursuer entitled to the expense of
_________________ Footnote _________________
the defender himself, the pursuer's confidence was to be confined. In these circumstances it does appear to the Lord Ordinary that their testimony cannot be rejected without the greatest injury to the pursuer, while on the other hand the defender has by his own acts placed himself in a situation most justly barring all attempts on his part to shut out the only light which can be obtained on the subject. In canvassing the weight due to the testimony of those witnesses, regard will of course be had to the peculiarity of their situation, but in the meantime the Lord Ordinary cannot refuse their testimony.
The second point relates to the question put to Mr. White as to the pursuer's reasons for asking from him the letters and documents, or, as the question is put in another form, his reasons for redelivering them. In general a statement made by a party would be inadmissible; but this is not exactly a fair mode of stating the point. It is admitted that those papers and documents were got up from Mr. White by the pursuer, for the purpose of being delivered to the defender, who was waiting in the neighbourhood of Mr. White's office. It is admitted by the defender that the delivery of those documents to him was not gratuitous or unconditional. He avers that the condition was the conveyance to her of a provision for life, while the pursuer avers it to have been the granting of a letter explicitly declaring her to be his wife, and thus superseding the necessity of the first action of declarator, and of the various documents on which it was founded.
Both parties aver that a letter was written binding the defender to the condition, such as it was. That letter is not forthcoming. The defender has not examined the pursuer as a haver, and on the other hand she states that it was burnt along with the other documents, which the defender admits he put into the fire at Burntisland, and, in the absence of any proof of its existence, there does seem to be some probability in this statement. The parties then being at issue in regard to the condition on which these papers and documents were to be delivered up, it rather appears to the Lord Ordinary that the expressions used by the pursuer to her agent, on asking for the papers, while the defender was waiting in the street to receive them, fall to be considered as part of the res gesta, as a circumstance taking place in the course of the transaction, which may be competently received.”
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The cause was then debated on the merits, and avizandum having been made with the debate and whole process, the following interlocutor was pronounced by the Lord Ordinary:—
“7th March 1837. The Lord Ordinary having heard parties procurators at great length, and thereafter considered the proof adduced, productions and whole process, finds facts, circumstances, and qualifications proved relevant to infer marriage between the pursuer and defender: Finds them married persons, husband and wife of each other, accordingly: Therefore, ordains the defender to adhere to the pursuer, and to cohabit with, treat, cherish, and entertain her as his wife, in terms of the conclusions of the libel, and decerns: Finds the defender liable in expenses; and allows an account thereof to be given in, and to be taxed by the auditor: Farther, and in regard to the conclusion for aliment in case of non-adherence on the part of the defender, appoints the cause to be enrolled, that parties may be heard thereupon.” 1
_________________ Footnote _________________
1 “ Note.—The question will be found to depend in a great measure, if not entirely, upon the import of the writings which passed between the parties in March 1834. The Lord Ordinary has felt it to be one of considerable difficulty;—a difficulty arising from the very equivocal mode of expression used, and, as he cannot help thinking, intentionally used by the defender in these letters. They are certainly not the letters of a person intending to declare, without subterfuge or ambiguity, a present intention to contract marriage, merely qualified with the condition that it should be kept secret. They have as little the appearance of letters unequivocally intimating to the party to whom they are addressed that the connexion had been, and was to continue illicit, and undertaking merely an obligation for a pecuniary provision. There
Page: 952↓
The appellant having reclaimed to the First Division, their Lordships ordered cases, and thereafter
_________________ Footnote _________________ is, however, yet another object which the writer might have had in view, viz., to create an impression on the mind of the party receiving them, that they amounted to a declaration of marriage, while the mode of expression left the means of escape, if he found it convenient to deny their effect. The Lord Ordinary has found himself compelled to adopt the last supposition as the true one. But the mere circumstance of the defender's intention in this particular, is not conclusive. The questions will still remain,—1st, Whether the letters did admit of being construed as present declarations; 2dly, Whether the pursuer did receive and construe them as such; and lastly, Whether the defender knew that that construction was put upon them by the pursuer. For if these questions are answered in the affirmative, the defender will be bound, and cannot be allowed to plead the concealed and fraudulent intention with which the writings were framed, in defeat of the meaning put upon them, and known by him to be so put upon them, by the other party. The first letter, bearing date the 25th January 1834, but of which the true date is admitted to be the 8th of March, is strongly indicative of some such intention as that already alluded to. In fact, it is impossible for the defender to give to it, according to his own view, any reasonable or consistent meaning. It sets out, no doubt, with stating his anxiety to provide for the pursuer, and promises to leave, at his decease, a declaration acknowledging her as his lawful wife. It then assigns, as a reason for not giving her instant possession of the declaration, that he would be compelled to announce the fact to the Collector of the Widows Fund. Looking at the terms of the existing Statute on the subject of that Widows Fund, it may well be questioned how far this last representation was correct. But what is of more importance, it is nearly certain that the defender must have been satisfied at the very time, that the obligation, according to his construction of it, was absolutely worthless. The defender is a writer to the Signet, and could not be ignorant on a point which, even amongst the comparatively uninitiated, may be now considered as a matter of notoriety, that unless marriage is contracted during lifetime, the mere declaration left at death will not confer the character of widow. If the defender then had a private object in this letter, different from that of an admission of marriage de presenti, it was not so much the object of defrauding the Widows Fund, as that of defrauding the young woman he was addressing, not only of her belief of marriage, but of her hopes of a provision; but while this letter does not present any very clear or consistent meaning, if strictly construed, it might, when read more loosely, very easily create the impression that it admitted the existence of the marriage at the time, while it merely postponed the granting of a document in evidence of that existing marriage, in consideration of the defender's motives for keeping the marriage secret. Though far from being
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“17th Feb. 1838. The Lords, having resumed consideration of
_________________ Footnote _________________
explicit, it is a letter which might have been written by a party, who, knowing and admitting that he was married, stipulated only for the delay of the delivery of a document, which would at once enable the other party to declare it. And with reference to this last construction, the circumstance of the antedating of the letter is not immaterial. It is admitted that this was done to please the pursuer; and as she was then pregnant, there was an intelligible object in the antedating of the letter, if it referred to an existing marriage; while, according to the view of the letter taken by the defender, the antedating is utterly inexplicable and unmeaning.
But that letter must not be taken singly,—it must be combined with the rest of the correspondence. It was followed by the letter from the pursuer of the same day, commencing, “Dear Edward, I do hereby declare to take you for my lawful husband, in terms of the document which you have made out,” &c. One fact regarding this letter is admitted, viz., that it was delivered to the defender, although he denies that he retained it, but avers that he objected to it, and threw it into the fire in the presence of the pursuer. Upon these last points there is no evidence on either side,—certainly no conclusive evidence. For the Lord Ordinary cannot view in that light, the inferences drawn respectively by the parties, from the statements made to counsel, and the correspondence which took place relative to the opinions of those counsel. The admitted fact, however, of such a letter being written and delivered to the defender, is evidence of the meaning attached by the pursuer to the preceding letter of the defender, and is also evidence of the communication by her to the defender of the meaning so put upon it; and it would rather appear to the Lord Ordinary that the defender was bound to produce something more conclusive than his own mere averment of his rejection of that letter. As the correspondence did not stop there, the continuance of it clearly allowed the opportunity of placing this matter beyond the reach of doubt. But it so happens that the remaining part of the correspondence fortifies the presumption that the pursuer's letter had not been repudiated by the defender, and is, according to every probability, nearly irreconcileable with his statement upon this subject.
The next letter, that of 29th March 1834, begins, “Dear Elizabeth, It is most assuredly my intention to provide for you to the utmost extent my means will permit during the remainder of your life, while we are separate from each other,” and it is admitted that the last member of this sentence stood originally ‘while unmarried;’ and was altered to the present form of expression, on the application of the pursuer, and that the alteration ‘was made to please her.’
Now, it appears to the Lord Ordinary that this was just the occasion on which the defender, if he truly had rejected the pursuer's letter of 8th March, must have adhered to the expressions originally used. It
Page: 954↓
_________________ Footnote _________________
was the very opportunity for taking off, by a written qualification or denial, the effect of any erroneous construction put upon his former letter by the pursuer. Yet, instead of taking that opportunity, he agrees to the substitution of a certain form of expression, which, contrasted with that struck out, amounts very nearly to complete evidence of acquiescence in the view taken by the pursuer in her letter of the 8th March, of their relative situations. As it is admitted, then, that the pursuer's letter of the 8th March was written and delivered to the defender, as there is no evidence of his rejection of it, but, on the contrary, the adoption by him of a phrase in the letter of the 29th, nearly irreconcileable with such rejection, there is a preponderance of evidence in support of the presumption that her letter of the 8th had been received and retained without objection.
Next comes the letter of the 1st April:—
“I hereby declare most solemnly before Almighty God, that I never granted a letter to any one such as I have given to you, and cannot now grant any letter with such an obligation to any other person, as I consider myself bound by my letter.”
The defender seems to think that this letter may be easily disposed of. According to his view, it merely stated that he considered himself bound to abide by, and fulfil the obligation which he had granted by the letter dated in January; which again, according to him, meant nothing more than to enable her to go against the fund of the Society of Writers to the Signet for the annuity, the question being here, not whether this was a proper or improper purpose, but whether it was not plainly the meaning of the letter. The Lord Ordinary must demur to this reasoning. In the first place, the words are not merely that he will not grant, but that he cannot grant such an obligation to any other person, words which clearly imply an indissoluble or irrevocable engagement. Secondly, the previous correspondence admitting, at least by possibility, of this last construction, it being proved that such a construction had been put upon it by the pursuer, and there being a strong presumption that he had acquiesced in that construction, the solemnity of the adjuration in the letter of the 1st of April enters deeply into the question as a question of evidence of intention. That the defender should call God to witness a legitimate but secret engagement, and which for this last reason might require and justify such an appeal, was perfectly natural and proper. But is any man to be allowed to state in a court of justice that his meaning was only to call Almighty God to witness his engagement to provide for his associate in an illicit intercourse, through the medium of what he himself admits to be a gross fraud? Can it be supposed that the pursuer could have viewed it in that light? Is it not, on the contrary, quite clear that the pursuer was entitled to consider an obligation so solemnly attested, as importing in the first place a legitimate engagement, and at all events an irrevocable
Page: 955↓
_________________ Footnote _________________
engagement, neither of which conditions it will be observed can be possibly applicable to it, as explained by the defender.
Such, then, being the letters, it only remains for the Lord Ordinary to consider the evidence of the pursuer's father and sister, whose examination has been authorized by the Court in the special circumstances of this case. It is needless to state that witnesses so circumstanced must be presumed to have a strong bias, and that their testimony, if unsupported, à fortiori contradicted, must be received with great hesitation. The testimony of these witnesses, however, seems to stand clear of any imputation on the score of appearance of partiality, and is in all its essential particulars consistent with the inferences which the Lord Ordinary has thought himself entitled to draw from the letters them selves. By the testimony of both these witnesses, it is clear that they conceived and expressed that belief to the defender, that it was the secrecy of the marriage and not the postponement of it, which they understood to be his object in the letters. And it is equally clear, according to their evidence, that that view was admitted or at least acquiesced in by the defender. Upon the whole, then, the Lord Ordinary has formed the opinion that the letters, combined with the parole proof by the pursuer's father and sister, afford sufficient evidence of a de presenti declaration of marriage.
As to the remaining part of the parole proof, and the whole proceedings of the parties after the raising and abandonment of the declarator of marriage, there seems to be a great difficulty in connecting them with the correspondence hitherto considered. This arises from the defect of the evidence of the conditions on which the action was abandoned. The defender alleges that it was in consideration of his becoming bound to grant the pursuer a pecuniary provision, while it is averred by her on the other hand that she agreed to abandon the action and give up the documents on which it was founded, solely in consideration of his engaging to give her an absolute and unequivocal acknowledgment of her status as his wife.
As a mere question of probabilities, the Lord Ordinary has no hesitation in avowing his belief of the latter statement. Even in the most trivial question of pecuniary obligation, a party, a professional person, who contrived to transact with his adversary, an inexperienced young woman, under the cautious seclusion of her parents and legal advisers, could not well complain of any unfavourable construction being put on his conduct. But these unfavourable presumptions are incalculably stronger in the present case, where the defender must, from the nature of his connexion with the pursuer, have had a great influence over her, and where, having got her into his power, and having obtained, through her means, possession of all the documents considered to be of importance, he induced her to abandon, by her own unadvised act, that legal proceedings which she had commenced under the
Page: 956↓
_________________ Footnote _________________
sanction and counsel of her natural guardians and legal advisers. But whatever may be the probabilities, the Lord Ordinary is of opinion that there is no sufficient proof of the terms on which the pursuer agreed to give up the action of declarator.
And it may be observed that this circumstance goes far to exclude the second or alternative view of the case maintained by the pursuer, viz., that the continued connexion between the parties after they left Edinburgh on the 22d of April 1834, when combined with the letters of the defender, must at any rate constitute a marriage, by the force of the promise followed by copula.
These letters, viewed as a declaration de presenti, were beyond the reach of any recal or surrender by the parties; but if viewed as constituting merely a promise, that promise admitted of being retracted on the one hand, or abandoned on the other; and no copula, following on such retraction or abandonment, would be of any relevancy in a question of marriage. Now, here it is admitted that the letters were given up, and as there is no sufficient proof of the terms on which according to the pursuer, they were so given up, viz., in consideration of an absolute acknowledgment, it does appear to the Lord Ordinary, that there is here a defect in one indispensable link of the pursuer's chain of evidence.
A remark of the same kind is applicable to the whole of those subsequent proceedings, in so far as they are founded upon substantively, as affording a proof of marriage by cohabitation, and habit and repute. The doubtful nature of the terms on which the pursuer agreed to abandon the action of declarator, throws a corresponding obscurity over the true nature of the connexion which afterwards subsisted between them. That connexion did not continue under circumstances to make it in itself conclusive. It is proved, no doubt, that they lived together as man and wife, and were so considered in the lodging-houses where they resided. But it is also proved that this took place under assumed names, a circumstance which goes far to neutralize the inference of marriage. As the assumption of the appearance of marriage may be easily accounted for, from a consideration of decorum and convenience, and may be ascribed to such considerations when the true names are concealed; on the other hand, the assumption of feigned names is not absolutely conclusive the other way, as it is quite consistent with the notion of a really existing marriage, which the parties wish to keep secret. It certainly does not appear to the Lord Ordinary, that there is here any such inconsistency as to raise doubts of the true meaning of the letters forming the main ground of the pursuer's action. Even the expressions which she is said to have used at Dumfries admit of an easy explanation, when it is considered that her object was to obtain an unequivocal acknowledgment of her marriage; and that, after the abandonment of the action, and the delivery of the documents
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Appellant's Argument.
Appellant.—The father and sister of the respondent were not, according to the law and practice of Scotland, admissible as witnesses in her behalf. The principle of the law of Scotland in regard to relations in the degree of father or mother is, that in respect of their presumed partiality they are not to be credited in questions of contract. There is plainly no case to which this principle can apply more strongly than a case of status. Penuria testium is not held to render the evidence of such witnesses admissible in questions of irregular marriage, more than in any other sorts of contract; this exception is recognized only in questions of age and propinquity, or in the trial of crimes.
1 It was incompetent to admit as evidence the statement made by the respondent to her agent, Mr. White, respecting her motives for demanding re-delivery of her documents from him. To render hearsay admissible at all to this
_________________ Footnote _________________ she had every reason to believe that she was at the defender's mercy. Neither is it to be thrown out of view, that there are some other circumstances in these subsequent proceedings, which the defender will find it difficult to explain. The taking of the house in Warriston Crescent, and the intimation of it to the pursuer's mother, are not very easily reconcilable with the notion of a mere continuance of an illicit connexion. Inferences still more strong may be drawn from the letter addressed to the pursuer's mother from South Queensferry, on 22d April, on their way from Edinburgh, and also from the letter of 1st May 1834, addressed by the defender to the pursuer in Glasgow. These letters are written with the defender's habitual caution; but no person, on the mere reading of these letters, and in the ignorance of any private views on his part, could for a moment suppose that they implied anything but a legitimate connexion between him and the party to whom the first of these letters related, and to whom the second was actually addressed. But the Lord Ordinary finds it unnecessary to remark farther on the evidence of the procedings of the parties after they left Edinburgh. His opinion is formed on the letters of the month of March, corroborated as they are by the testimony of the two Craigies; and, for the reasons already given, that opinion is in favour of the pursuer.”
1
Dalziel v. Richmond, 10th June 1790;
Ball v. King, 21st January 1797;
Stewart v. Menzies, 5th Feb. 1835; all in Fac. Coll.
Page: 958↓
The respondent has not proved any de præsenti acknowledgment or declaration of marriage on the part of the appellant.
1 The respondent has not shewn that either of the parties had marriage in view throughout their intercourse, yet in such circumstances even a
_________________ Footnote _________________
1 Kennedy, 19th June 1747, Mor. 10457, Brown's Supplement, vol. v. p. 789;
M'Innes v. More, House of Lords, 25th June 1782, Mor. 12683;
Taylor v. Kello, 16th Feb. 1787, Mor. 12687;
Anderson v. Fullerton, 13th Nov. 1795, Mor. 12690;
M'Lachlan v. Dobson, 6th Dec. 1796, Mor. 12633;
Stewart v. Menzies, 6th Dec. 1833, 12 S., D., & B., 179; Ferguson on Consistorial Law, and authorities there referred to.
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A promise of marriage has not been proved. This point must depend exclusively upon the construction of the appellant's letters, or rather of the antedated letter of the 25th January 1834, containing the alleged promise of which the subsequent letters are founded on as merely confirmatory. The promise contained in the letter of 25th January is, that “I shall, at my decease, leave a declaration acknowledging you as my lawful wife;” and is accompanied by an explicit intimation, that “the declaration shall only be delivered at my decease, in the event of the most strict secrecy being adhered to regarding this communication.” Lord Stair defines marriage “to be the conjunction of man and woman, to be consorts for all their life, with a communication of rights, divine and human; so the essence thereof consists in the conjugal society, the special nature of which society appeareth by the state, interest, and terms that the married persons have thereby.” The promise given by the appellant was of something exclusive of this essence of marriage, viz., a declaration not to be delivered till after his decease, by which the conjugal society could not be constituted. 2
Supposing there was a promise of marriage, it was effectually recalled by the appellant before any subsequent copula took place between the parties.
3 The
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1
Jolly v. M'Neill, 20th June 1828, 3 Wilson and Shaw, 85.
2 Stair, b. 1. tit. 4. s. 6.;
Cockburn v. Logan, 19th July 1670, Mor. 12386, Smith, 26th Nov. 1755, Mor. 12393;
Harvey v. Crawford, 19th Feb. 1732, Mor. 12388;
Anderson v. Fullerton, 13th Nov. 1795, Mor. 12690.
3 Stair, b. 1. tit. 4. s. 3.; Ersk. b. 1. tit. 4. s. 3.
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The legal presumption of matrimonial consent having passed at the time of a copula subsequent to the promise, is excluded by the fact of such intercourse having also preceded the promise. 1
The promise was so qualified as to be incapable, by any fiction, of being converted into the de præsenti consent essential to marriage, at any period during the lifetime of the parties.
The appellant and respondent never cohabited together as man and wife.
Respondent's Argument.
Respondent.—Under the circumstances of the case, the respondent's father and sister were admissible as witnesses. To maintain this proposition, there is no occasion to impugn the doctrine of the law of Scotland, that persons occupying so near a relationship are inadmissible as witnesses. The question presently under discussion does not turn upon that general rule. It falls under one of its best established, and most favourably received exceptions, namely, that the facts which these relations were called to prove, are of an occult nature, in re domestica, and as to which there exists an unavoidable penuria testium. Consistorial causes stand in no other situation than ordinary causes, farther than this, that they are of that nature, that the transactions to be spoken to are most likely to be occult, and a
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1
White v. Hepburn, 18th Nov. 1785, Mor. 12686; M'Dowall, Feb. 1796, reported in Ferguson's Consistorial Law, 163–178; Summary of Cases, Ersk. b. 1. tit. 6. s. 4., p. 120. note 139. Ivory's edition.
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The letters amount to a de præsenti declaration of marriage, more especially when explained by the relative parole proof. The letters in March and April taken by themselves, amount to a de præsenti declaration. However cautiously they may be conceived, they were undoubtedly written and delivered by the defender to the pursuer as such. It is of no consequence what the characters were which the parties chose to employ in expressing their consent. If it be once made out what they intended to mean by the characters employed, effect will be given to the meaning and intention, rather than to the literal reading of the words. The respondent is quite ready to concede, in the
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1 Stair, b. 4. tit. 43. s. 8.; Bankton, b. 4. tit. 30. s. 15.; Ersk. b. 4. tit. 2. s. 26.;
Barber v. Stewart, July 1732, Mor. 16742;
Young v. Arrot, 8th Dec. 1738, Mor. 16743;
Stirling v. Hamilton, 11th July 1704, Mor. 16708, and 13th July 1706;
Cumming v. Cumming, 5th March 1748, Mor. 16756;
Boyd v. Gibb, 20th Jan. 1770, Mor. 3989 and 9583;
Nicolson v. Nicolson, 6th Dec. 1770, Mor. 16770, and Hailes, Dec. 371-418;
Martin v. Mackissan, 8th Feb. 1816;
Bell v. Bell, 14th April 1819, 2 Murray 130;
Spence v. Howden, 12th July 1819, 2 Murray, 167;
Stewart v. Menzies, ut supra.
2 Corporation of Sutton Coldfield, 1 Vern. 254; Bland, 3 Bro. P. C. 620.
3 Starkie's Law of Evidence, 2d edit. vol. i. p. 36.
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1 Per Lords Chancellor (Eldon) and Redesdale, in Cunninghams v. Cunninghams, 2 Dow, 502, 506, and 511.
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There was no discharge or renunciation of the promise. The appellant possessed himself of the letters surreptitiously, and against the will or consent of the respondent, and it is impossible to hold that that amounted to a discharge or renunciation of the previous promise or obligation of marriage. But the parties slept together on the night of the 22d, and it was not till the 23d that the appellant got possession of the documents in the manner described. A marriage by promise and copula had therefore been effectually constituted before the appellant possessed himself of the letters; and it was beyond the power of either of the parties to recall it. It was indissoluble, except by death or divorce; and even although the respondent had voluntarily renounced the promise, her renunciation
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1
M'Adam v. M'Adam, 21st May 1813, 1 Dow, 189;
Honyman v. Honyman, 3d March 1831, 5 W. & S. 133, 139, 144;
Stewart v. Menzies, 6th Dec. 1833, 12 S. & D. 183.
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The position, that the promise copula subsequente did not amount to marriage, because the parties had had intercourse before the letters were granted, is maintained on a mistaken notion of the true principle of the law.
1 Marriage is held to be formed, not as a punishment on the seducer, or as a compensation to the injured female. The true principle is, that the copula is the actual fulfilment of the previous promise, as much as if a de præsenti declaration had been given, or a formal marriage solemnized, and the marriage thus contracted may be declared and enforced, as well against the woman as against the man. The previous character or conduct of the parties has no bearing on the question. If they could have contracted the matrimonial relationship in any way, it is formed if a copula succeeds the promise.
2 The principle on which marriage by promise subsequente copula depends is altogether independent of the consideration, whether the copula has or has not been the first to which the female has submitted. The previous promise is equivalent to the sponsalia of the Romans, the subsequent copula to the actual consummation of the matrimonial relationship. By the “natural commixtion,” the promise “transit in matrimonium,” from an inflexible legal presumption that the parties thereby interchange a consent de præsenti. And so strong is this presumption, that it obtains, even
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1 Per Lord Stowell in Dalrymple, Dodson's Report, p. 60, 62.
2 Stair, b. 1. tit. 4. s. 6.; b. 3. tit. 3. s. 42.; Bankton, b. 1. tit. 5. s. 2.; Erskine, b. 1. tit. 6. s. 4.
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The parties were habit and repute husband and wife, and cohabited together as married persons.
Ld. Chancellor's Speech.
Lord Chancellor.—My Lords, in this case the Lord Ordinary, and all the judges of the Inner House, concurred in the opinion that there had been a valid marriage between the parties, although there was a difference of opinion as to whether it was to be considered as resting upon a contract per verba de presenti, or a promise of marriage copula subsequenti. It appears to me impossible for the appellant to escape from one or the other of these grounds; as to the first, it is not necessary to prove the contract itself, it is sufficient if the facts of the case are such as to lead to satisfactory evidence of such a contract having taken place; upon this principle the acknowledgment of the
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1 Pennycuick, 15th Dec. 1752;
Shillinglaw v. M'Intosh, 6th March 1829, 7 S. & D. 533;
M'Kinnon v. Sandys; and
Myles v. Sim, 20th Nov. 1829, 8 S. & D. 89.
2 Ante, p. 960.
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Upon examining the evidence of what took place between these parties in March and April 1834, so far as it is to be found in the written documents, (only with reference to this principle,) I think there is satisfactory proof of a previous contract binding upon the appellant; it seems, indeed, probable that he attempted so to manage his communications with the respondent as to satisfy her wishes, and put a stop to her importunities, and, at the same time, to keep open to himself the means of escaping from his contract. But this will not avail him if there be proof of a binding contract, and if the respondent understood it to be so.
In order fairly to try the import of the letters, and to ascertain whether they prove the case set up by the respondent, or are consistent with the case as represented by the appellant, it must be kept in mind that the respondent insists there had been a previous contract or promise of marriage, and that the appellant denies this, and says that the connexion had been altogether illicit.
The letters appear to me quite inconsistent with the
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Again, if the letter was felt by the writer to be a recognition of the marriage, his prohibition to make it known to any other person or persons is intelligible; but if it was only to announce an intended fraud against the widows fund after his own death, by the publication of which the respondent alone would suffer, the concealment might safely have been left to her. The
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Knowing then that the respondent treated the letter of 25th January as an acknowledgment of their marriage, and that she had refused to permit any expression to be
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Upon the evidence of those letters, therefore, without referring to any parts of the testimony upon which doubts have been raised, I think the case made out, of a written recognition of the respondent, by the appellant, as his wife, and admission of a previous contract of marriage having taken place between them. Whatever difficulty there may be as to the evidence of what took place when the respondent obtained the papers from Mr. White, or what took place at Queensferry on the 22d of April; the appellant's letter to the respondent's mother of that date, seems to me to make such evidence comparatively immaterial. The respondent had determined to institute a declarator of marriage against the appellant, with the concurrence of her parents. This proceeding she withdrew, and left
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If according to the opinion of the judges of the First Division the letters before referred to implied rather a promise of marriage than a contract per verba de presenti, there was a copula following such promise, and therefore all that is necessary to constitute a marriage according to the law of Scotland. In order to try the construction of those letters, as containing a promise of marriage, it must be assumed that there had been no previous contract, or at least none such as the respondent could rely upon.
The letter of the 25th of January was in terms a promise to secure for the respondent a provision which she would only become entitled to by a marriage. That which was to be postponed until after his death was the publication of the evidence of the marriage. What was the intention which was to be concealed, and which if
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The letter of the 1st of April puts this beyond all doubt. What was the obligation referred to in that letter, which after the letter of the 25th of January the appellant would not grant to any other person, and by which he considered himself bound? What but marriage? I think that those letters do recognize a previous contract of marriage, but if not, they clearly contain a promise of giving to the respondent the character of wife, which, followed by the cohabitation of the 22d of April, constitutes a marriage.
Question as to the application of the rule of law, in reference to promise subsequente copula, in cases in which cohabitation has also preceded the promise.
It has, however, been contended upon this latter view of the case that the above rule of law does not apply in cases in which cohabitation has also preceded the promise; some authority has been referred to in support of that proposition, particularly
White v. Hepburn, 18th November 1785
1, Mor. 12,666, and the case of M'Dowall, in February 1800
2, Ferguson's Consistorial Law (1829) pages 167 to 178; but in the
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1
White v. Hepburn, 18th November 1785.
2 M'Dowall, February 1800.
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Finding sufficient in this case to support the judgment of the Court of Session without relying upon that part of the evidence which has been objected to, there is no necessity for saying much upon that point. If the ground of the rule of law in Scotland as to rejecting the evidence of near relations be the same as that upon which the rejection of the evidence of a husband and wife in this country rests, namely, the avoiding that invasion of domestic confidence which the admissibility of such evidence would occasion,—there may
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1
Shillinglaw v. M'Intosh, 6th March 1829.
2
M'Kinnon v. Sandys.
3
Myles v. Sim, 20th Nov. 1829.
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The evidence of White, as to what the respondent said to him upon applying for the paper, does not appear to me to be at all material in coming to a conclusion upon the merits of the case. For these reasons I think that the interlocutors appealed from are right, and therefore move your Lordships that they be affirmed with costs.
Ld. Brougham's Speech.
Question as to the effect of a release of a promise of marriage intervening between the promise and a subsequent copula.
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It is unnecessary to enter into the other questions which have been discussed by my noble and learned friend, with whom I entirely agree. The letter of April, connected with the letter of the 25th of January, can bear no other construction than that which he has given them. One part of the case entirely fails, namely, that which relates to the supposition of an attempted fraud on the widows fund. I think a very slight attention to the case sufficient to shew that the facts do not bear out that allegation in the smallest degree, but that the facts are most consistent with the case made by the respondent. My Lords, without entering further into the reasons, or discussing the argument used at the bar or in the court below, I am of opinion, with my noble and learned friend, that the interlocutors must be affirmed, and of course with costs.
The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the said interlocutors therein complained of be and the same are hereby affirmed: And it is further ordered, That the appellant do pay or cause to be paid to the said respondent the costs incurred in respect of the said appeal, the amount thereof to be certified by the
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Solicitors: Archibald Grahame — Johnston and Farquhar, Solicitors.