United Kingdom House of Lords Decisions

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URL: http://www.bailii.org/uk/cases/UKHL/1872/09SLR0662.html
Cite as: 9 ScotLR 662, [1872] UKHL 662

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SCOTTISH_SLR_House_of_Lords

Page: 662↓

House of Lords.

Tuesday, June 11. 1872.

09 SLR 662

James Ogilvie Tod Forster (Pauper)

v.

Jessie Grigor or Forster (Pauper).

Subject_Husband and Wife — Constitution of Marriage.
Facts:

Circumstances in which it was held (affirming judgment of the Court of Session) that a mutual declaration in writing by a man and woman, accepting of each other as husband and wife, having been proved to be authentic and seriously meant, instructed marriage.

Subject_Process — Concluded Proof.
Facts:

The defender in an action of declarator of marriage adduced no evidence, but applied for leave to do so after the Lord Ordinary had given judgment in the cause. Held (affirming judgment of the Court of Session) that, as the defender had had ample opportunity of giving evidence in the proof before the Lord Ordinary, and had not availed himself of it, he could not be allowed after that to lead further evidence.

Headnote:

This was an appeal from a decision of the First Division of the Court of Session. The respondent Jessie Grigor raised an action of declarator of marriage and damages against James Ogilvy Tod Forster. She stated in her condescendence that she was about twenty-three years of age, and in 1865, when of the age of twenty-one, went into the service of the defender's mother as housemaid. The defender's mother resided at Findrassie House, near Elgin. She said that soon after she entered the house the defender was attracted by her personal appearance and manners, and began to court her with a view to marriage; that they exchanged promises of marriage, and met frequently unobserved. On hearing this, Mrs Tod, the defender's grandmother, immediately dismissed the respondent (Mrs Forster, the defender's mother, being from home); but the defender would not allow her to go till his mother's return. On 2d September 1865, the pursuer and defender being alone in the
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dining-room, the subject of their marriage was seriously discussed between them, and he then and there, of his own accord, went for his Bible, and with his own hand wrote on two of the fly-leaves the following declaration:—“I, James Ogilvy Tod Forster, take thee, Jessie Grigor, to be my wedded wife from this day henceforth until death us do part; and thus do I plight my troth.” She made a similar declaration, and both signed the document. Within two or three days afterwards, the defender telling her they were as much married as they could be, and there was no impropriety in their intercourse, the marriage was consummated. During the same month the pursuer was dismissed from her situation, but the defender kept up his relations with her, and visited her at her father's house, and gave her a ring and a fruit-knive—her friends having full knowledge of the circumstances. In 1866, the defender having obtained a commission in the Army, and being about to go to Ceylon, at first proposed to marry her before his departure, but afterwards, owing to the opposition of his family, pressed on the pursuer the necessity of keeping their marriage secret. In November 1866 she gave birth to a son, who, she averred, was the defender's son. Previous to that event the defender had pressed for a return of his Bible and the written declaration of marriage, which she declined to give up. In conclusion, the pursuer averred, that if she failed to establish a marriage between herself and the defender, then she claimed damages for her seduction. Her pleas in law were that there had been marriage by mutual declaration de prœsenti and by promise subsequente copula. The defender denied most of the above allegations, and denied that he had signed any such declaration as alleged.

A proof was led before the Lord Ordinary in November 1868. The defender adduced no witnesses, and the only documentary evidence which he put in was an extract from the parish register of the pursuer's birth, the date of which was 19th December 1842. He then declared his proof closed.

On 5th January 1869 the Lord Ordinary ( Manor) pronounced an interlocutor, in which he found that the parties were married persons, and ordained the defender to adhere to the pursuer as his lawful wife; and, in the event of his non-adherence, ordained the defender to pay to the pursuer a sum of £60 a-year for aliment. The defender reclaimed to the Inner-House, and craved to be allowed to add to the proof; which application was refused, and the First Division adhered to the Lord Ordinary's interlocutor. The defender thereupon appealed.

Judgment:

Lord Colonsay—I observe it is stated in the paper that both parties are paupers. It is seldom we find both the parties paupers.

Anderson, Q.C., and Shiress Will, for the respondent, explained that, in consequence of the judgment in the Court below, the defender had been proceeded against, and was unable to pay the claim, and had been allowed to appear as a pauper here. He had not appeared in the Court below as a pauper.

Sir R. Palmer and Mr Chisholm: Batten, for the appellant, contended that this was a scandalous example of immodesty and misconduct on the part of the respondent, and so far from the evidence leading the Court to the conclusion that these parties were married persons, it ought to have led to the contrary conclusion. The Court below had refused to allow the appellant to give evidence contradicting that relied upon by the Court as proving the signature, which he could have done. He was out of the country at the time the evidence was taken, and so was not in a position to properly instruct his counsel and agent. The Court had also admitted a great deal of hearsay and incompetent evidence. The witnesses had been unworthy of credit, and their evidence loose and incredible. The whole evidence shows that, whatever the pursuer may have been before entering the service of the defender's mother, she had from an early period shown a total want of propriety and modesty in her conduct. The judgment of the Court below ought therefore to be reversed.

The respondent's counsel were not called upon.

At advising—

The Lord Chancellor said that it was not necessary to hear any argument on the part of the respondent in this case. It was to be regretted that this young man, in his position in life, should have married somewhat imprudently, but the sole question for their Lordships was whether the fact of the marriage, as alleged by the appellant, had been established. The cause had been tried like any other cause; the parties had been allowed to lead evidence, were represented on both sides, and ample opportunity had been given to the defender to lead evidence contradictory of the case of the pursuer; but he chose, just at the time that his case came on, to go abroad. It was suggested at the bar that, in consequence of his absence abroad, his counsel had not had sufficient materials to defend him. But that was due to his own conduct. He had opportunity given him if he had availed himself of it, and he did not apply for leave to lead further evidence till after judgment was given against him. It would be impossible to allow parties, who had had opportunities of defending themselves, to come forward after the decision of the case and add to the evidence. It was suggested that the House might now give him a further opportunity; but there was nothing to justify that application except the point as to the handwriting of the declaration written in the Bible referred to in the case. Now, the signature of the pursuer to that document had, it was true, not been distinctly proved in evidence, but the witnesses called by her could have proved it, and the defender's counsel did not think fit to cross-examine those witnesses. There was ample evidence that the pursuer had always kept the declaration as an authentic document, and shown it to her fellow-servant, to justify her intercourse with the defender. If, then, the handwriting of the document be treated as genuine, it was clear that the document amounted to a mutual declaration of present marriage. Even if the signature of the pursuer be taken as not proved, still it was, as far as he (the Lord Chancellor) was aware, not necessary by the law of Scotland that her signature should be put to such a document. She kept the document in her possession, and acted upon it. Her friends, knowing the circumstances, recognised her as married to the defender; and all the facts proved were quite consistent with the pursuer's case. The judgment of the Court below was therefore right, and must be affirmed. As the appellant had been allowed to appear as a pauper, it was perhaps not competent for their Lordships to dismiss the appeal with costs.

Lord Colonsay—I entirely concur. The first point was that the appellant should be allowed to

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add to the evidence, but he had ample opportunity of leading evidence before the Lord Ordinary gave his judgment, and never applied for leave until after that judgment. The evidence in the case is quite conclusive in favour of the pursuer. She kept this document, which declared the marriage, in her own possession, and even though she had not herself signed it, it might well be deemed a declaration made by both of the parties. That being so, the declaration was clearly evidence of a marriage de prœsenti, and the judgment of the Court below is right.

Lord Cairns concurred.

Lord Chancellor—With regard to the costs, the House will not draw up the order at once, so as to allow of any application by the appellant, but probably the effect of the judgment of the House will be to make the husband liable for the wife's costs in any event.

Judgment affirmed.

1872