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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Francis Hamilton, Esq. v. Mary Hamilton, Jennet Hamilton, James Hamilton, and Archibald Hamilton, and James Boog, curator ad litem to the said James and Archibald Hamilton [1842] UKHL 1_Bell_736 (9 August 1842)
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SCOTTISH_HoL_JURY_COURT
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(1842) 1 Bell 736
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1842.
No. 29
v.
[Heard
Subject_Marriage. —
Circumstances adduced to prove marriage by habit and reputation, held not to establish a habit and reputation of that general and uniform character which is necessary to constitute marriage.
Subject_Ibid. —
Circumstances held to prove, that a letter, purporting to be an acknowledgment of marriage, had been seen and assented to by the woman, and to constitute a marriage between the parties, notwithstanding evidence of another purpose on the part of the man previous to making the letter.
Subject_Ibid. — Writ. — Trust. —
Delivery to a third party of a letter acknowledging marriage, the letter having been seen and assented to by the woman, makes the third party trustee for the woman, and is equivalent to delivery to herself.
In December, 1835, the appellant, as the immediate younger brother-german, and heir apparent of the deceased Archibald Hamilton, who had been a surgeon in the army in the outset of life, but on his retiring from the army, had taken up the business of a pawnbroker, brought an action against the respondents, who were the children of Archibald Hamilton, setting forth, that as heir-at-law to Archibald Hamilton, he was about to make up titles to him, but was precluded from getting access and inspection into his papers and titles, and otherwise interrupted in making up his titles, as heir aforesaid, by the respondents. That the deceased, after serving in the army as surgeon, came
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The respondents, in defence, denied the statements of the summons, and averred, “That in 1814, Archibald Hamilton left the army, and from that time till his death, he and their mother, May Clark, resided constantly in Edinburgh. That they lived in lodgings till 1816, when they took a house in Brown Street, where they remained till 1820. That they then removed to a house in Crosscauseway, where they stayed for two years, after which they went to a house in St Leonards, where they continued to reside till Mr Hamilton's death, which happened on the 23d February, 1823. That
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Condescendence and answers were ordered; and when the respondents lodged their revised answers, they produced, at the same time, the letter referred to in their defences, which was in these terms:—
“ Edinr. September 26, 1817.
My dearest May,—I hereby solemnly declare that you are my lawful wife, tho', for particular reasons, I wish our marriage to be kept private for the present. I am, your affect husband.
Ar. Hamilton.”
“ To May Clark.”
(Addressed on the back.)
“ Mrs A. Hamilton, Brown Street, Pleasance.”
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After the record was closed, a proof was led by both parties. From this evidence it appeared, that the original connection between the father and mother of the respondents commenced sometime between the years 1810 and 1814—that their mother lived in lodgings in the Canongate of Edinburgh until 1817; and while living there, gave birth to the respondents, Mary and Jennet Hamilton; but whether their father lived with their mother during this period, or only occasionally visited her, did not appear. That in 1816 the kirk-session of the Canongate presented a petition to the magistrates, alleging, that the respondents, Mary and Jennet, were illegitimate, and praying that the mother might be examined as to who was their father, with the view of preventing them from being chargeable to the parish. That the father of the respondents gave bond with Major John Lindsay to the kirk-treasurer of Canongate, that the respondents, describing them as “two natural children born by Mary Clark,” should not be chargeable to the parish. That in the year 1817 the father of the respondents took a flat of a house in Brown Street, Edinburgh, where he went to reside, and continued to reside, with their mother, until 1820, and during their residence there, the two respondents, James and Archibald, were born. That in 1820 the father took a house in the Crosscauseway of Edinburgh, and remained there until 1822, when he took another house at St Leonards, in which he continued to live until his death, which happened on the 23d February, 1823, and that during his residence in the Crosscauseway and at St Leonards, as during his residence in Brown Street, the respondents and their mother lived in family with him.
The evidence led had regard to the two grounds of defence set up by the respondents:—1st, Marriage of their parents by cohabitation, and habit and repute, during the period subsequent to their going to reside in Brown Street. 2d, Marriage by the letter of 26th September, 1817.
I. Marriage by cohabitation and habit and repute.
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Of several witnesses examined for the pursuer, (appellant) Lieutenant General Hope deponed, that he “was intimately acquainted with the late Archibald Hamilton, sometime surgeon in the 92d regiment of foot. That the deponent was acquainted with Mr Archibald Hamilton up to the period of his death. That it was generally reported, and understood among his friends, that Mr Hamilton kept a mistress, by whom he had a family; but that, to his knowledge, the deponent never saw her, and never knew her name. But he understood it was the same person who, subsequently to Mr Hamilton's death, applied to the deponent for a certificate to obtain the government pension. That he never had any information on the subject from Mr Hamilton himself. That the deponent was intimately acquainted with the late Major Lindsay, who was brigade-major to the deponent: That the said Major Lindsay and Mr Archibald Hamilton were for many years on terms of great intimacy, down to the period of Mr Hamilton's death: That said Major Lindsay died at Madras four or five years ago: That Major Lindsay attended Mr Hamilton during his last illness, which lasted only a few days. Depones, That Major Lindsay had often spoken to the deponent regarding the mother of the defenders, and as to Mr Hamilton having had children by her; but he did not speak to the deponent of her as being Mr Hamilton's wife. Interrogated, In what character Major Lindsay spoke of the defenders' mother? answers, ‘Merely as a person who lived with him.’ Interrogated, Whether, ‘by a person who lived with him, he understood Major Lindsay to mean that she was his mistress?’ answers, ‘I understood so.’ Whether the deponent thinks, that if Mr Hamilton had made a low or disreputable marriage, Mr Hamilton would have mentioned it to him? Depones and answers. No; I do not think he would. Interrogated, Whether he thinks that Mr Hamilton would have refrained from doing so from a desire of retaining the deponent's good opinion? Depones, That he
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Edward Bruce, a retired merchant, deponed, “That he was intimately acquainted with the late Dr Archibald Hamilton, and that the intimacy commenced about 30 years ago, when the deponent was a boy about 14 years of age. Interrogated, If he understood that Dr Hamilton, after his return to Edinburgh, kept a mistress? Depones, That he did so understand: That the deponent used to joke Dr Hamilton about it, and he laughed in return and never denied it. Depones, That it was generally known and talked about among his friends. Interrogated, Depones, That he understood that it was the same person whom the Doctor all along kept up as his mistress, and that the connection continued down to the Doctor's death. Interrogated, if he knew that the Doctor had a family by her? Depones, That he did. Depones, That he has seen a person in the street who was pointed out to him as the individual who was kept by Dr Hamilton, and that he frequently saw her afterwards, but she was not pointed out by Dr. Hamilton himself. Interrogated, If he ever heard or understood that Dr Hamilton had married the foresaid person? Depones, That he never did; and farther depones, That the Doctor never expressed to him in conversation any intention of marrying the above individual, nor did he ever hear it whispered or surmised among the Doctor's friends or acquaintances, that any such lawful connection between the parties had been formed. Interrogated, Depones, That, from the intimacy which the deponent had with Dr Hamilton and his family, he really thinks he would have informed the deponent had he entered into any such connection with the foresaid person; and the deponent adds, That he was so much in the habit of joking the Doctor about her as his mistress, that he
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William Crighton, surgeon, deponed, “That he was acquainted with the late Dr Archibald Hamilton, and he was particularly intimate with him during his later years, and the Doctor had been intimately acquainted with the deponent's father and family. Interrogated, If the deponent was aware that Dr Hamilton kept a woman as his mistress? Depones, That he heard it rumoured that he did so, but the deponent never had any conversation with the Doctor upon the subject, and he did not think it likely that the Doctor would mention such a thing to the deponent. Interrogated, depones, That he does not recollect, and does not think that, during the Doctor's lifetime, he ever heard that the Doctor had any children by the person referred to, but the deponent may have heard it, and the deponent's family used to lament that such a gentle-manlike
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Mrs Taylor, the widow of a merchant, deponed, “That she was very intimately acquainted with the late Dr Hamilton and his famiiy: and that the deponent's intimacy continued with the Doctor down to the Doctor's death. Interrogated, If, down to the Doctor's death, the deponent ever heard that he was married? Depones, That she never did; and the deponent believed him to have died an unmarried person. Interrogated, Whether, if the Doctor had married, or declared a marriage with any one, she thinks that she and her family would have heard of it? Depones, That she does. Interrogated, If the deponent was aware that the Doctor had a family of natural children? Depones, That she was. Interrogated, If she knew that the Doctor, some years before his death, resided with the mother of the children? Depones, That she knows that at one time he did not reside with her, and she is not aware that he ever did so, but she knows perfectly that he kept the said person as his mistress, and she understood that the connection continued down to the Doctor's death.”
Dr Saunders deponed, “That he was intimately acquainted with the late Dr Archibald Hamilton, and that he attended him in his last illness. Interrogated, If he was aware that the Doctor kept a mistress? Depones, That he was so latterly. Interrogated, If he understood this from the Doctor himself? Depones, That the Doctor never said so to the deponent, as far as he recollects; but when the deponent was attending him, he used to see a woman with him, whom the deponent judged to be his mistress. Interrogated, If the deponent ever had any reason to believe that the said woman was the Doctor's wife? Depones, That he never had. Interrogated, How the Doctor
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Walter Moir, Sheriff-substitute of Lanark, deponed, “That he was most intimately acquainted with the late Dr Archibald Hamilton. That the Doctor was the deponent's second cousin. That after the Doctor's return from the army, he was in the habit of consulting the deponent about his private and confidential matters as a friend. Interrogated, Whether the deponent was aware that the Doctor, after his return to Edinburgh, kept a mistress? Depones, That he was aware of this, and the Doctor told him so himself. Interrogated, depones, That he knew that the Doctor had children by the said woman, and he heard this also from the Doctor; and the deponent adds of himself, That about two or three years before the deponent left Edinburgh, he recollects of Miss Hamilton, a sister of the Doctor's, calling at the deponent's and complaining of something in the Doctor's conduct, which she said he would explain himself, but which she declined doing, and requested the deponent to mention to him her displeasure, and to beg that he would amend his conduct: That accordingly,
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Several other witnesses, persons who had lived in the neighbourhood of Dr Hamilton's lodgings in Brown Street, were examined for the pursuer, and deponed to a report in the neighbourhood, that the Doctor and May Clark were not married persons, but none of them had been in the habit of visiting or meeting the Doctor or May Clark.
Several witnesses were also examined for the defenders, (respondents,) as to habit and repute—among others, John Robertson, writer, deponed, “That he was acquainted with the late Dr Hamilton, and their acquaintance commenced in 1818
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Ann Russell deponed, “That the deponent's mother, till within four years of her death, lived at the Crosscauseway, in a house belonging to herself, and the deponent recollects seeing the late Dr Archibald Hamilton at her mother's, inquiring about her mother's house, which he afterwards rented from her, and that upon that occasion he had some conversation with her mother about purchasing some fixtures that were in the house. That the deponent understood from him that he was a married man with a family. That Dr Hamilton said he could not settle about the bargain till he spoke to Mrs Hamilton, and that he would bring her to see the house. That the Doctor called again, and brought a lady with him, whom he called Mrs Hamilton, and the house was then taken, and some fixtures and other things purchased. That these things took place in the end of 1820 or beginning of 1821, and the Doctor entered
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Agnes Slight, wife of James Slight, brass-founder, deponed, “That she at one time lived in Brown Street, and she recollects that the late Dr Archibald Hamilton and Mrs Hamilton lived on the same flat with the deponent and her husband, for more than three years: That the deponent and her husband knew Dr and Mrs Hamilton intimately, during most part of the foresaid period. Interrogated, Whether she considered them married persons or not? depones, That she always considered them married persons. That for some time there was nobody in the stair but the deponent's family, and Dr and Mrs Hamilton,—the tenement being newly built,—and they were in each other's houses every day almost, although they never took meals with each other. Interrogated, If that house was Dr Hamilton's home? depones, That it appeared to be so, for he was there every night. Depones, That, as far as the deponent saw, they always conducted themselves as married persons: That they had two daughters at that time, and the deponent considered them to be lawful children. Interrogated,
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Ann Martin deponed, “That at one time she was in the
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Isabella Paterson deponed, “That she was in his house as an assistant to the servant, and to take care of the children, and she believes she was there all the time they lived at St Leonards, which might be about a year: That the deponent's father and mother lived in the neighbourhood: That the deponent always understood Doctor and Mrs Hamilton to be married persons, and she was uniformly called Mrs Hamilton: That the Doctor gave her that name: That he lived in the
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Jacob Lisenheim deponed, “That the deponent has been in the Doctor's house in the Crosscauseway several times: That the Doctor introduced him to Mrs Hamilton: That the deponent had some French gloves to sell: That Major Lindsay bought some more than once, and the Doctor being at the Major's, the Doctor said to the deponent, ‘If my wife wants gloves, I will buy some from you;’ and the Doctor appointed an hour to meet him at the Doctor's house: That the deponent
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‘1821, February 22. One pair lady's gloves, 2s.’”
Alexander Deuchar deponed, “That he married the widow of Thomas M'Whirter, in March 1823, and his wife died in 1827: That for a considerable time before the deponent's marriage, Mrs Deuchar had been acquainted with Dr Archibald Hamilton, and in that way the deponent also became acquainted with the Doctor before the deponent's marriage: That his acquaintance commenced in 1822: That the deponent considered him a married man: That the deponent and Mrs Deuchar were also acquainted with Mrs Hamilton, and visited her before the deponent's marriage, which the deponent certainly would not have done had he not believed that she and the Doctor were married persons: That Mrs Deuchar knew Mrs Hamilton intimately before her marriage with the deponent, and frequently visited her: That the deponent knows perfectly that Mrs Deuchar considered the Doctor and Mrs Hamilton to be married; and he is satisfied that, had she not so, she would not have visited them, or introduced the deponent to them: That his acquaintance with Dr and Mrs Hamilton was prior to the deponent's marriage in 1823: That the deponent never visited Mrs Hamilton after the Doctor's death; but Mrs Deuchar and Mrs Hamilton visited each other: That the deponent used to meet Mrs Deuchar before their marriage, in the evening, at Mrs Hamilton's, and the deponent has also met Dr and Mrs Hamilton at Mrs M'Whirter's about the same time, at tea and visiting: That when he saw Dr and Mrs Hamilton together, they appeared to conduct themselves towards each other as married persons, and the deponent never had a doubt upon the subject: That
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Helen Meldrum deponed, “That she was at one time in the service of the late Dr Archibald Hamilton: That the deponent entered Dr Hamilton's service at the November term previous to his death, and she remained for six months: That as far as she understood, Dr and Mrs Hamilton were married persons: That the Doctor treated Mrs Hamilton respectfully and affectionately as his wife, and they lived as happily together as any lady and gentleman she ever served with: That they had four children, and the deponent considered them to be lawful children: That the Doctor always, in speaking of Mrs Hamilton, called her Mrs Hamilton. Depones, That Dr Hamilton was only confined for four weeks previous to his death: That two or three weeks before it, the Miss Hamiltons, his sisters, were sent for: That they came to see the Doctor, and they took lodgings in the neighbourhood, there being no accommodation for them in the Doctor's house. Depones, That she has seen Mrs Hamilton and the Miss Hamiltons together during the Doctor's illness, and she never saw any thing between them but what was agreeable, nor any thing that could lead her to suppose that they did not consider her to be the wife of Dr Hamilton. Depones, That when the Miss Hamiltons saw the children, they appeared to treat them kindly: That she never saw any thing in the conduct of Dr or Mrs Hamilton to make her doubt that they were married persons: That she has always believed them to be so: That she never saw the Miss Hamiltons at Dr Hamilton's till they were sent for, as before deponed to, and she does not think they could have been there, while she was a servant, without her seeing them: That during the time the Miss Hamiltons were residing in the
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Robert Slater deponed, “That the deponent was for some years an apprentice with Mr M'Whirter, writer in Edinburgh: That, during that period, he was daily in Mr M'Whirter's house: That Mr M'Whirter was a married man: That he has very frequently met the late Dr Archibald Hamilton at Mr M'Whirter's: That he considered Dr Hamilton a married man: That he has frequently seen his wife and family at Mr M'Whirter's: That they were there visiting, and were intimate with Mr and Mrs M'Whirter: That he has seen them occasionally at Mr M'Whirter's at meals, as well as visiting: That Dr and Mrs Hamilton always apparently conducted themselves as married persons: That the lady always passed under the name of Mrs Hamilton: That she was always treated by Mr and Mrs M'Whirter as a married woman, and the deponent never doubted that she was so: That both Mr and Mrs M'Whirter are dead: That they had very few acquaintances, and received few visiters: That the persons who did come about them were all reputable; and the deponent does not think they would have received Mrs Hamilton, if they had believed her not to be the wife of Dr Hamilton; but at the same time he cannot speak to what might be their sentiments: He only gives his opinion from what he saw of their conduct generally: That Mr M'Whirter was agent for Dr Hamilton. Depones, That the deponent never had any communication with Dr Hamilton about his private matters.
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The documentary evidence produced for the pursuer, (appellant,) consisted, 1st, Of a will executed by Dr Hamilton on the 4th of October, 1820, bearing, “for the love, favour, and affection I have and bear to Mary Hamilton and Janet Hamilton, my daughters, and May Clark, their mother, I do therefore hereby make, constitute, and appoint the said Mary and Janet Hamiltons, or any other children that may be procreated betwixt the said May Clark, their said mother, and me, to be my sole executors, but also my universal legatorys.” Throughout this will the mother of the respondents was called “May Clark,” and they themselves were either called by their names, or spoken of as “her family,” or “my children;” and the Doctor's whole estate, with the exception of his interest in the pawnbroking business, was given “to and in favour of the said May Clark, Mary and Janet Hamiltons, and such child or children as may be procreated betwixt the said May Clark and me, their heirs, executors or assignees.” As to the pawnbroking business, so soon as it yielded L.200 per annum, May Clark and her children were to draw two-thirds of the profits, and the appellant one-third for his life, and, at his death, his third was to be drawn by the testator's sisters.
2d, Of a codicil to the will, executed on the 19th of February, 1823, in which the respondents and their mother were spoken of in these terms,—“May Clark, and my four children by her.”
3d, A variety of letters, dated between 1819 and 1822, written by Dr Hamilton, from London, to the mother of the respondents, addressed in the inside, “My dear Mary,” or “My dearest Mary,” and concluding, “Yours affectionately.” The address on the outside of these letters, when produced in Court, was, to
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On the other hand, the documentary evidence produced for the defenders, (respondents,) was,—1st, The letter of 26th September, 1817, founded on in the defences.
2d, An entry in the blank leaf of a Bible which had belonged to Dr Hamilton, in these terms,—
“ Edinburgh, 10 th May, 1815.
Mary Hamilton, born the 25th December, 1811.
Jennet Hamilton, born the 21st November, 1813.
James and Archibald, born 29th August, 1822.
Registered in the parish of Canongate. An Extract obtained 22d April, 1824.
W. L. and J. G., witnesses.”
3d, Various receipts for rent of the houses in Brown Street, Crosscauseway, and St Leonards, all of which, with one exception, were in the name of “Mr” Hamilton, the exception being in the name of “Mrs” Hamilton.
4th, An account made out by a tradesman in the name of “Mr Hamilton,” and a promissory note for the amount, signed “Mrs H. for Mr Hamilton.”
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5th, Various accounts for clothes to the respondents and their mother, made out in the name of “Mrs” Hamilton.
6th, Various notes of assessed taxes, and a warrant to poind the goods of “Archibald Hamilton” for non-payment of the amount.
7th, A note from Dr Hamilton, to Gilbert, his partner, in these terms:—
“ Gilbert—Will you give Mrs H. L.4, and will you take the trouble to call upon Polmore to-night, and give your bill for the balance at three months? This is the only way he will settle it. Yours, (Signed) Ar. Hamilton.”
II. Marriage by the letter of 26th September, 1817.
To negative this branch of the defence, John Dickie, a writer to the signet, who had been the friend and the legal adviser of Dr Hamilton, was examined by the pursuer, (appellant,) and deponed in initialibus, “That he never had any correspondence with the pursuer as to the present action; but that, immediately after Dr Hamilton's death, the deponent communicated to the pursuer, by letter, the circumstance of the Doctor's connection with the mother of the defenders, and that before this, that person had alleged herself to be the Doctor's widow; and that, on the pursuer's answering the deponent's letter, stating that he meant to question the legitimacy of the defenders, the deponent intimated to him, that in that case, he could not act as his agent, or give him any advice upon the subject. That he did not keep any copies of his letters to the pursuer on this occasion, and indeed was not in the custom of keeping any of his letters to the pursuer, as they were all almost of a friendly and confidential nature, and the deponent does not believe that he preserved the foresaid letter of the pursuer to him.”
Subsequently, Mr Dickie produced several letters from the pursuer to him, and thereafter he further deponed in initialibus, “That when the deponent first wrote the pursuer after the Doctor's death, he informed him that he knew that the Doctor
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Dickie was then examined in chief, and deponed, “That he acted as Dr Hamilton's agent in one or two matters, and that the first occasion on which this occurred, related to an application which was served by the kirk-treasurer of the Canongate against the defenders' mother, to have her ordained to appear and be examined as to two natural children. That these two children are the two eldest of the defenders. Interrogated, Whether, after this, the deponent had any conversation with Dr Hamilton in regard to the defenders' mother? Depones, never, except on one occasion: That, in the year 1817 or 1818, the Doctor waited upon the deponent, and stated, that he wished to execute some writing by which the said person might be enabled to receive the pension of an army surgeon's widow: That the deponent stated to the Doctor, that, in his opinion, that could only be done by making her his wife; to which the Doctor replied, that that he never would do; but he stated at the same time, that he wished the deponent would give him the form of an acknowledgment of the defenders' mother as his wife, and that he would leave it in the deponent's hands, and repeating that he would not make her his wife, and that, therefore, he would not deliver the document into her possession: That the deponent then wrote out two lines of a simple acknowledgment of the defenders' mother as his wife, which the Doctor took away with him. Depones, That in a short time, which might be within a week or a fortnight, the Doctor returned, bringing with him the acknowledgment written in his
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John Waudby, who had formerly been a bookseller, and lived in the same flat of the house in Brown Street with Dr Hamilton, but who at the time of his examination kept a shop for the sale of pies and spirits, was examined for the defenders, ( respondents,)
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Elizabeth Waudby, the wife of the preceding witness, another witness for the respondents, deponed, “That she never heard any thing about whether Dr and Mrs Hamilton were married by the forms of the church, but she knows that her husband was consulted about a letter which Dr Hamilton wrote: but she never saw it till after Dr Hamilton's death. Interrogated, When she first heard that her husband had been consulted about the foresaid letter? Depones, That she cannot recollect the exact period. Interrogated, depones, That it was before Dr Hamilton's death, and before the deponent and her husband left Brown Street. Interrogated, Who told her about the letter? Depones, That it was her husband. Interrogated, depones, That he did not tell her at the time when he was consulted about the letter, as she understood. Interrogated, Whether Mrs Hamilton ever spoke to the deponent about the said letter? Depones, That she did so: That she mentioned that the Doctor had written a letter, acknowledging her as his wife in every respect: That she knows this took place previous to the Doctor's death, and a long while before it, and she thinks it was when they were all living in Brown Street, and after the Doctor had left No. 3, but she cannot speak more particularly as to the time. Interrogated, Whether her husband had mentioned the aforesaid letter of acknowledgment before Doctor and Mrs Hamilton left No. 3, Brown Street? Depones, That he did not do so till after they had left No. 3;
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The documentary evidence tendered by the appellant in support of this branch of his case consisted,
I. Of excerpts from four letters from the appellant to Mr Dickie, produced by that gentleman at his examination, namely, 1. Excerpt from a letter, dated Paris, 3d April, 1823. “My affection and regard for my poor brother is known. My regret for his loss is deep and sincere. I am not, then, the one who would willingly permit a reflection to escape; but I cannot suppress my feelings of deep regret, not unmixed with other sensations, at the sad and lasting wreck he has made of his name, by giving to a connection so utterly disgraceful and so unworthy of him, all the rights and privileges which would have belonged to an open and honourable connection. With all my affection for my brother, I shall ever consider this act of his as a stain upon his name. I not only say this, but I say also, that it is an act of injustice which I could not have believed he would have done. I complain, too, that I have been grossly deceived; for, while he had given this letter five years ago, it appears he not only concealed it studiously from me, but, from his own opinion of the connection, and from other circumstances which I need not detail, he evidently
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2.—Excerpt letter, dated Paris, 20th April, 1823. “My other letter was of a more important, and of a most painful nature. It replied to your letter of the 16th ult., bringing me a state of my late brother's affairs, with all the sad and discreditable circumstances attending it. * * * * My feelings are not those of the moment; they are feelings produced by the recollection of what passed between my brother and myself, again and again, as connected with the future prospects of my family, and they become more deeply rooted every day. His having acknowledged this woman for his wife five years ago, is so completely at variance with every thing which passed between my brother and me from my arrival from India in 1818, till the time I last saw him in 1821, that I have very strong suspicions that the date of that letter is not correct. These suspicions are justified, 1 st, by my brother's own conduct, and by the manner he constantly spoke of this woman, (as well he might,) lamenting it deeply, and constantly desiring to get quit of it by leaving Edinburgh entirely.
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As to her being habit and repute his wife, I am certain he never acknowledged her as such to any one of his friends and acquaintances. I can tell you that it was quite the reverse, and I have this from good information. That she assumed his name I don't doubt,—such a woman could do any thing; for I know more of her than you are aware, and I have no doubt that this was her object from first to last.
3.—Excerpt Letter, dated London, 14th June, 1823.—I have just received your letter of the 7th instant. Your letter of the 7th and 9th ulto., one of so much importance, I never received. It has miscarried in France, as it is not to be found at the Treasury. Your present letter, giving the heads of the former, is at least very satisfactory on the point which had excited my feelings, and most naturally, so much,—I mean the pretended marriage of this woman. I had always, from the first moment, communicated my suspicions upon this point. I felt the character of my brother would never stoop to such a degradation. Every thing confirmed these suspicions, and from many sources. The very day before I received yours, I
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4.—Excerpt Letter, dated Calais, 20th January, 1825.—“I am not to have the benefit of your services. It is one of the many difficulties which one would think have been designedly thrown in my way. At the same time, I shall be the last to ask you to depart from the sacredness of your word or promise. I would have many excuses for all the trouble I give you, and without your friendship, I would indeed stand in need of every indulgence and excuse. Take, however, this test, which is the best and true guide for judging of others,—place yourself in my situation, and with my family,—see yourself surrounded by the same difficulties,—beset by the same obstacles, forced into many privations,—the future hereditary interests of your children attempted to be extorted from them;—ask yourself these things,—look to the source whence all this has been heaped upon my head,—and then say, would you or would you not act as I am doing, and follow the same line of conduct, to prevent the interests of your children from being trampled upon by persons so utterly worthless?”
II. A letter from Dickie to Archibald Campbell, London, dated 11th March, 1823, in these terms:—
“Mr Bowie has probably informed you that the late Mr Hamilton has left a widow and four children, and as they have little else to depend on, his friends are desirous of obtaining the usual government pension for them. It is proper to mention that Mr Hamilton was not married according to the rites of the church, but the lady holds a letter from him, written upwards of five years ago, declaring her to be his wife, since which they have chiefly
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resided together, two of the children have been born, and she was considered in the neighbourhood by habit and repute as his wife, which by our law constitutes a legal marriage, entitling the widow and children to all their legal rights. In these circumstances, I would be glad to be advised by you as to the mode of application to the War-office for the pension for the widow, and allowance for the children, and what certificates are requisite.”
III. A letter from Dickie to John Pringle, Banff, dated 5th May, 1825, in these terms:—
“I ought long ere now to have written you regarding the affairs of our late friend Mr Archibald Hamilton. He left a settlement and codicil, of which I send you a copy, in favour of his illegitimate children, and their mother Mary Clark, and his brother Thomas, and appointed Mr Campbell of London, yourself, a person of the name of Gilbert, and me, his trustees.”
The documentary evidence tendered for the respondents consisted, 1st, Of an Extract from a memorandum book which had been kept by John Harvey, W. S. the person referred to by Mr Dickie in his deposition, as having been present at the reading of Dr Hamilton's will, which was in these terms:—
“ February 23,
1823.—Died—St Leonards, Mr Archibald Hamilton, late surgeon, 92 regiment—buried West Church—left two daughters and two sons, twins, Archibald and James, by Mary Clark, whom he owned for his wife, by a letter dated () after the birth of the two daughters, but long before the birth of the twin sons;—Failing of the Wishaw family, Archibald will succeed to the title of Lord Belhaven and Stenton, if his mother's marriage shall be established. Witnesses at opening reading the letter, John Dickie, Esquire, W.S., Hope Street; John Harvey, W.S., 23, Rose
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Street; John Gilbert, pawnbroker, 39, Tolbooth “Wynd, Leith; Mrs Mary Hamilton, the widow, and the Misses Elizabeth and Nelly Hamiltons, sisters of the deceased. The letter of acknowledgment of marriage was read in the house at St Leonards, after the funeral, and given up to Mrs Hamilton. It had been prievously left in the charge of Mr Dickie by the deceased. Major of brigade, J. Lindsay, 23, Dundas “Street, was Dr Archibald Hamilton's particular friend and confidant. 1825.—Mrs Hamilton proved her title,—obtained the pension as a surgeon's widow, L.50,—and within these few months married John Gilbert, May, 1825.”
On the 27th February, 1839, the Lord Ordinary, ( Cockburn,) pronounced the following interlocutor:—
“The Lord Ordinary having heard the counsel for the parties, and considered the closed record, Finds that all objections to the admissibility of evidence have been abandoned on both sides: Repels the defences, and decerns in terms of that conclusion of the libel, which concludes that the defenders are not the lawful children of the deceased Archibald Hamilton, the brother of the pursuer: Finds the pursuer entitled to expenses; appoints an account thereof to be given in, and, when lodged, remits to the auditor to tax the same and to report.”
The respondents reclaimed, and on the 22d of November, 1839, the Court (First Division) pronounced the following interlocutor:—
“The Lords having advised this reclaiming note, and heard counsel for the parties, alter the interlocutor reclaimed against; sustain the defences; assoilzie the defenders from the conclusions of the libel, and decern: Find the defenders entitled to expenses; appoint an account thereof to be given in, and when lodged, remit the same to the auditor to tax and report.”
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The appeal was against the interlocutor of the Court.
Mr Solicitor-General and Mr Gordon for appellant.—1. The evidence tending to shew marriage between the parties by habit and repute is so divided in character, so little calculated to support a continuous and uninterrupted reputation, that it may be entirely disregarded.
II. The case, then, must depend upon the letter of 26th September, 1817, which at the utmost amounts to an acknowledgment of marriage. Unless the acknowledgment is mutual, it is but the assertion of one of the parties, and even as to him the acknowledgment must be de presenti, and with a deliberate intention of the purpose for which it is used. Now, Dickie's evidence shews that marriage was not the purpose of the letter, and that by the inscription on the envelope, in which the letter was enclosed, the letter was not intended to be delivered to May Clark, or to be used in the lifetime of Dr Hamilton.
[
None but by Dickie.
[
No point was made below upon this.
[
None; no point was taken.
[
The letter, coupled with Dickie's evidence in regard to it, shews that Dr Hamilton did not intend to do any thing which should impose on him during his life the consequences of being her husband; and that he merely wished the woman and
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[
Exactly so. Knowledge of the letter by the woman would not alter the matter, unless it is established that it was intended to take immediate effect as making a marriage; Anderson v. Fullerton, Mor. 12690; M'Innes v. More, Mor. 12683.
[
In Anderson v. Fullerton, no stress was made on the terms of the envelope, and the letter was known to the woman at the time it was written. It was wrapped round a sealed packet, having on it “not to be opened till after the decease of George Fullerton,” and four witnesses swore that the woman knew of the letter in the life of the man.
[
There was no evidence in the case of that; they went upon this, that the letter remained in the power of the man, and was revocable so long as it did so; and in this case the letter never was delivered to the woman, but was delivered to the agent of the party who made it, and remained with the agent till the party's death.
[
That brings us to the evidence in regard to the circumstances attending the making of the letter. Dickie swears that the
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The Judges in the Court below went upon the notion of an attempt to cheat the woman.
[
If Dickie was right, as to the letter not being likely to procure the pension, then it might nevertheless please the woman to see the Doctor's intention towards her, and in this view he might use the words as to pleasing and satisfying, but it by no means follows that he meant to please her by giving her the status of his wife. There is no evidence of any demand by her to be acknowledged as his wife, and Dickie, in another part of his evidence as to what took place in the Doctor's bed-room during his last illness, says, the request was to deliver the letter after his death. It is no where shewn that the woman was a party to the making of the letter, and if the evidence of the Waudbys, which is in
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Pemberton and Kelly for respondents.—I. We do not rely on the letter of 26th September, 1817, alone, but on the letter, coupled with the circumstances. There cannot be a doubt that up to 1817 the connection between the parties was illicit. In that year Dr Hamilton, desiring to continue the connection, and to avoid a repetition of the proceedings in regard to the maintenance of the children, wished to change its external appearance. He accordingly wrote the letter in question, and from the month of May in that year, he lived with her in the same house, and visited, and was visited, as if she were his wife. At first his sisters disapproved of the connection, but afterwards they became satisfied, as is shewn by the letters which Dr Hamilton wrote to Mrs Hamilton, desiring her to pay money to his sisters, and not to speak to them of his discomfort in his brother's house. This proves that he was aware of such a degree of communication existing between her and his sisters as might lead her to divulge this; and no one witness speaks to any fact as having occurred in the presence of Mrs Hamilton, which was inconsistent with her being a wife.
[
Yes; our case is, that whatever Dr Hamilton did with his own relations, he never did any thing in the woman's presence inconsistent with her being his wife.
[
That is what we say, and if we are right, no part of the
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[
II. The letter of 26th September, 1817, is sufficient to infer a marriage, if proved to have been communicated to the woman, and assented to by her, Hoggan v. Craigie, M'L. and Rob, 965. The evidence shews that it was produced by the party with whom it had been deposited, and that it was communicated to the woman in the lifetime of the maker. Coupling this with the evidence as to the manner in which they lived, it is impossible to say she did not adopt him as her husband. The burden of shewing that the purpose of the letter was other than that which it purports, lay upon the appellant, but he has in no degree proved
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[
Yes; that is proved by the habit and repute; and the communication is established by Dickie's evidence. What Dickie—says as to pleasing and satisfying could only have reference to marriage, for he had already told Dr Hamilton, that unless the letter made a marriage, it could not make the woman his widow, so as to get the pension he desired, and what took place on the Doctor's deathbed is conclusive upon this subject. The Doctor could have no object, then, in merely pleasing and satisfying the woman in the way suggested, by requiring from Dickie an acknowledgment that he held the letter. His only object could be to protect her against the disappearance of that letter, and the loss of her just rights, and Dickie viewed the matter in that light, for he appears by the answers of the appellant to his letters, to have represented the connection to have been a marriage, at least until the latter part of the correspondence, when for some reasons, probably the fear of embroiling himself with the appellant, he had been induced to alter his account of the matter. Moreover, what Dickie says as to pleasing and satisfying is confirmatory, that the letter was communicated, for without being seen, how could it either have pleased or satisfied.
Solicitor-General in reply.—Habit and repute must be notorious among the neighbourhood and friends of the parties. If it do not exist among the friends on both sides, then it is partial, and that is none at all for the purpose suggested, Thomas v. Gordon, 7 S. and D. 872.
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[
Whatever reputation there might be in the neighbourhood where he lived, there was none among the friends and relations of the man; and if the sisters did occasionally visit the woman at her house, there is no evidence that she ever visited them at theirs. The letter itself will not make a marriage without the circumstances in connection with it; but setting Waudby's evidence aside, there is no more than a supposition by Dickie that the woman was acquainted with the contents of the letter, and unless acquainted with them, how could she assent. It would be of most dangerous precedent to allow a marriage to be set up on such evidence as either Waudby's or Dickie's.
[
I should have thought otherwise. There is hardly a case where documents have been extorted for another purpose than what they shew, in which parole evidence has not been allowed.
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It is difficult now to refer to authorities.
[
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My Lords, there was one ground insisted upon on the part of the defenders that has utterly failed. 1 mean the ground of defence resting upon habit and repute. The evidence of habit and repute was conflicting, and divided to a great extent, and it is impossible, therefore, that evidence of that description could be made the foundation of a decision establishing the status of marriage. That part of the case standing by itself may be left out of our consideration.
The question, therefore, rests solely upon a document amounting to an acknowledgment of marriage, and the evidence, principally of Mr Dickie, connected with that document.
The facts of the case, for the purpose of introducing the evidence, are very shortly these:—Dr Archibald Hamilton had been a surgeon in the army. About the year 1814 he retired from the service. He was in very humble circumstances, and went to reside at Edinburgh. He lived for a considerable time with his sisters in that city. During that period he formed a connection with a woman in an inferior condition of life, of the name of May Clark, who lived in the Canongate, and by whom he had two children. Those children were avowedly illegitimate. He was obliged to give security to the district or the parish for their support. But about the year 1817, in the month of May in that year, a considerable alteration took place in his position—in his mode of living. He left the residence of his sisters, and took a house, or apartments, consisting of two or three rooms, in Brown Street, in the Pleasance, and removed there. May Clark removed from the Canongate with the children, and lived with him in Brown Street. He resided there for three years, and lived afterwards, I think, in the Crosscauseway, and, subsequently to that, in St Leonards, and in the year 1823 he died.
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I have mentioned, that in the month of May, 1817, he went to Brown Street, and he was accompanied, as I have stated, at this time by May Clark and the children. Very shortly after that period he applied to Mr Dickie, a writer to the signet, with whom he was in some way connected through his brother, the present pursuer, who had employed him in his profession. He applied to him for the purpose of obtaining a writing, by which May Clark should be secured a pension, as the widow of an army surgeon, in the event of his death. Mr Dickie informed him that that could not be done unless he married her. To that he replied that he never would do that. But, however, after a little time, he said to him, “I wish you would draw me out the form of an acknowledgment of marriage between me and May Clark,” and he added, “It will please and satisfy her:” Mr Dickie accordingly drew out such a form of acknowledgment, and having obtained that he took his leave.
In about a week or fortnight afterwards he returned to Mr Dickie, with an acknowledgment, in his own handwriting, in these terms:—
“To May Clark, Edinburgh, September 26, 1817. My dearest May, I hereby solemnly declare that you are my lawful wife, though, for particular reasons, I wish our marriage to be kept private for the present. I am your affectionate husband, Archibald Hamilton,”
—and it was addressed on the back, to “Mrs A. Hamilton, Brown Street, Pleasance.” He delivered this to Mr Dickie, requesting Mr Dickie to take care of it, to shew it to nobody, and to take care, that in the event of his, Mr Dickie's death, it should come into no person's possession but Mr Hamilton's. Accordingly, in the presence of Mr Hamilton, he put this paper in an envelope, sealed it up, and endorsed it in these terms:—
“To be delivered into the hands
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of Archibald Hamilton, Esq., unopened.”
Mr Dickie expressed an opinion, that a secret transaction of this nature would not be sufficient to entitle the widow to the pension, to which Mr Hamilton replied, “at all events it can do no harm.”
Now, stopping there for the present, the main question is this: Was this paper shewn to May Clark? It was written for the purpose of pleasing and satisfying her. The inference, therefore, from that declaration, (and it must be remembered that Mr Dickie is an unwilling witness on the part of the defenders,) the inference from that declaration would be that it was shewn to her. I think, looking at the style of the paper, and the terms of it, it leads strongly to the probability that it was shewn to her. But I think the case does not rest there with respect to its having been communicated to May Clark; because, upon the death-bed of Dr Hamilton, Mr Dickie attended to write his codicil, and, upon that occasion, May Clark, the mother of the defenders, being present, he said to Mr Dickie, “You know you have a letter from me, addressed to May Clark; upon my death, when all is over with me, you must deliver it to her.” Mr Dickie says, from the manner in which he expressed himself, he understood that Mr Hamilton wished, in the presence of May Clark, to obtain from him an acknowledgment that he was still in possession of that paper. May Clark made no observations as to the letter; did not ask what it related to, or what the contents of it were. This leads, therefore, to the inference that she knew what the paper was, and that this was done to satisfy her at that period, that this gentleman, Mr Dickie, still continued in possession of that acknowledgment.
Again, there is another circumstance that is material to be adverted to. After the death of Dr Hamilton, Mr Dickie attended after the funeral, and produced a settlement and a codicil, which was read in the presence of May Clark and some of the members of the family, and also produced this paper and read it. Mr Dickie says, he does not recollect that he read it;
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Now these circumstances lead me to the conclusion, that the strong probability is, that this paper was communicated to May Clark. If it was communicated to her and she assented to it, and she continued to cohabit with him to the time of his death, and had by him children, there can be no doubt that, by the law of Scotland, that would be a marriage.
But then it is said, (and that was one of the main arguments in the case,) that the paper was never delivered, that it was never out of the possession of the party, Dr Hamilton; that Mr Dickie took it as his agent, and held it as his agent; that Mr Dickie's possession therefore was his possession, and that the instrument therefore was wholly inoperative. But if the paper was shewn to Mrs Hamilton, and she assented to it, and she afterwards cohabited with him upon the footing of that paper, and upon the foundation of it, then she had an interest in that paper. Had it remained in the possession of Mr Hamilton, and not been delivered to Mr Dickie, he would have held it for himself, and as trustee for her; and when it was handed over to Mr Dickie, though he stood in the first instance as agent of Mr Hamilton, he would, as far as the possession of this paper was concerned, have held it as agent for both of them; as agent for him, and as trustee for her. Therefore, I apprehend, that if we come to the conclusion that this paper was communicated to her, and she assented to it, (and if it was communicated to her, no person reading this paper can for a moment doubt that she did assent to it,) that, under these circumstances, would constitute a marriage.
It is very material to consider in what light Mr Dickie viewed the transaction immediately after the death of Dr Hamilton He wrote a letter on the subject of it to the present pursuer, and
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But it is stated that he was a proud man, a high-minded man, and that he never would have degraded himself by such a connection. But at least, this is true and certain, that he intended, after his death, that she should be represented as his widow. He intended, after his death, therefore, that she should be considered as having been his wife, and therefore, his pride was sufficiently satisfied by concealing, during his lifetime, the circumstance of
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Again, the same witnesses, who represent him as being a high-minded man, as being a proud man, and that he would not degrade himself by a connection of this kind, state that he was an honourable man; and yet, if we are to consider that this was not a marriage, that he was not married to May Clark, what is the inference? That he intended to commit a fraud by enabling her to represent herself as his widow, to represent that she had been married to him in order that she might obtain a pension. How much easier is it to reconcile the different parts of this character by assuming what is the probability, and the strong probability, of the case, that he married her—that it was his intention to keep that marriage secret, because he knew it would bring them into conflict with his relations, and make him the subject of mockery to persons with whom he was connected during his lifetime, but that he had no scruple whatever that it should be avowed, after his death, that he had married her, and that by these means, these honest means, he would secure to his widow a pension. It appears to me that that is the true view of the case. That was the view of the case taken by the Court of Session, and it is the view that I have taken after a careful consideration of these papers.
There is one observation made by the Court of Session which I think material; it is a circumstance to lead us not to view very favourably the course of conduct pursued by the present plaintiff. No proceedings were instituted for a period of twelve years after the death of Dr Hamilton. During the whole of that period the pursuer lay bye, and did not question the legitimacy. It is not a very favourable circumstance in support of his claim, and it was not very just to the defenders, because the effect of it might have been to deprive them of evidence most material for the purpose of supporting their defence. I think, that under all the circumstances, I shall be justified in advising your Lordships to
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My Lords, habit and repute being, as my noble and learned friend has stated, and for the reasons he has assigned, entirely laid out of view in the case, the question really turns upon that paper which my noble and learned friend has read, the letter addressed by Dr Hamilton to May Clark, in which, by present words, by verba de presenti, he acknowledges her as his wife. Though he gives that paper into the hands, and into the custody, of his agent, Mr Dickie, Mr Dickie keeps it afterwards in the capacity, which I think has been most justly stated and proved by my noble and learned friend, not merely as the agent of the bailor, the party giving him the document, Dr Hamilton, but as in the nature of a trustee, if not agent, for May Clark, to whom the paper was addressed.
My Lords, it will not be safe for parties, though that is not the case here, but it will not be anywise safe for parties minded to practise a fraud upon the world, in Scotland at least, to hold themselves out as man and wife, much less to execute an instrument, in which they are represented as taking one another as man and wife, and yet to say, and to rely upon that assertion, and even to afford proof of it by acts done at the time, and declarations contemporaneously done, that they did not intend this as a real marriage, but only as a fraud upon the community, by representing themselves as married persons, for any purpose which they might have in view. I give no opinion as to what would be the law in that case, though I may have very little doubt about it; suffice it to say, that it would not be safe for parties to attempt
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But it is said that his only object was to obtain a pension for her by making her his widow, whom during his life he did not intend to make his wife. The answer to that is, that he could only make her his widow, and give her those rights after his death, by making her his wife, and then the question comes round again to this, Did she receive this paper, and receiving it, did she give her sanction to it?
Now, my Lords, I take the evidence to be quite clear that she must have received this paper. In addition to the circumstances referred to by my noble and learned friend which prove that, it is proved by what passed at the time, and is no matter of dispute, for when it was said, “If you do not mean it as a marriage, it will have no effect,” his answer was, “Never mind, it will please and satisfy her.” Now, could it please and satisfy her unless it were communicated to her? And whether it was communicated by actually putting the paper into her own hands that
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My Lords, a good deal of observation was made upon the evidence of Mr Dickie. I do not approve of the conduct of that gentleman; much the reverse. I agree in much that was said respecting him in the Court below; but at least we are entitled to believe those parts of his statement which receive confirmation from the strong probabilities of the case, the circumstances of the parties, and other evidence existing in the cause; and I believe it so far as to credit what he says with respect to the knowledge intended to be conveyed to May Clark. But I also cannot lay out of mind the circumstance that he, being a man of business, a professional man, and knowing, as every person in the profession generally knows, what the Scotch marriage law is, treated it as a marriage, for a certain time at least, and that he could not so have treated it unless the paper had come to the knowledge of May Clark, and by her been assented to. It clearly proves to me that he knew that she had known of it, and that he knew she had assented to it.
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Upon the whole, therefore, my Lords, I am of opinion that the judgment of the Court below is right, and that in the terms of my noble and learned friend's proposition to your Lordships, the judgment should be affirmed, with the costs of the appeal.
Now, my Lords, the onus being upon the pursuer, I think that he has discharged himself of that in the first instance, by shewing, that down to the year 1816, Dr Archibald Hamilton and May Clark certainly lived together without being married, and that the two children who were then born were living with them. The onus is thus cast upon the defenders, but I think that they have effectually supported that onus.
They first relied upon habit and repute. I agree entirely that that cannot be justly relied upon. The marriage law of Scotland is so exceedingly well settled, that I need not remind your Lordships, that habit and repute, to constitute a marriage, must be uniform; the acts of the spouses must all be consistent with the notion of their being man and wife. Now, although in one part of Edinburgh, Dr and Mrs Hamilton appeared to be married, in others they appeared to be in the situation of a mistress living with her maintainer.
But then, my Lords, when we come to the letter to which my noble and learned friends have referred, it seems to me that that affords satisfactory evidence of the marriage. I think that the fair inference from the examination of the witnesses is, that the letter
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Then that being so, the onus is now transferred to the pursuer. He must make out his case. Now, how does he undertake to do that? If he could really have shewn that this was a mere contrivance, that no use whatever was to be made of the letter till after Dr Hamilton was dead, that they were not to live as man and wife during his lifetime, and that it was only to be used after his death, for the purpose of obtaining a pension for his widow, and thereby committing a fraud upon the government, I humbly apprehend, that that would not have amounted to a marriage contract. But, my Lords, how is this proved on the part of the pursuer? It must be proved, for if this paper was communicated to May Clark, the onus lies upon the pursuer to shew that she was a party to the fraud, but of that there is not one tittle of evidence. Even supposing that Dr Hamilton's object might have been to commit a fraud upon the public, and to obtain a pension for this woman with whom he had lived, upon the footing that she was his wife, after his death, without having been his wife during his life, yet May Clark was no party to
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There being no evidence whatever, my Lords, to implicate her in this alleged conspiracy, and it being satisfactorily proved to my mind that this paper was communicated to her in his lifetime, and that she assented to it, I think that this paper constitutes a matrimonial contract.
My Lords, with respect to the circumstance which has been very much relied upon, on the part of the appellant, of this being in the custody of Mr Dickie, the law agent of Dr Hamilton, that does not seem to me to be entitled to the slightest weight, because, supposing it to have been bona fide written to constitute a marriage between the parties, and to have been communicated to her, and that she had assented to it, and this supposed scheme of a pretended marriage had never been entertained for one moment, what would have been the natural course of things? Why, that Mr Dickie, the law agent of the husband, would have had the custody of this paper.
For these reasons, my Lords, I think that the Lord Ordinary came to an erroneous conclusion upon this subject, and I entirely concur in the interlocutor of the First Division of the Court of Session, establishing the validity of this marriage.
Ordered and Adjudged, that the petition and appeal be dismissed this house, and that the interlocutor therein complained of be affirmed with costs.
Solicitors: Hay and Law— Deans and Dunlop, Agents.