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father and mother being in the house at the time, and their visiting them immediately afterwards as man and wife. During their whole cohabitation they were considered married persons, and associated with as such; and there was more than one instance of direct acknowledgment of her as his wife.(u)
In proof of a marriage by habit and repute, the general reputation among the friends, relations and families of the parties is to be received.(w) A divided repute is no evidence at all on the subject of marriage. It must be founded on general not on singular opinion. And where the evidence is contradictory, the collateral circumstances, in which there can be no error, ought to be considered.(x). Continued cohabitation is essential to found a marriage on habit and repute, and such a marriage may be negatived by the character of the woman and the scandalous way in which the parties lived.(y) Although it is by no means impossible to make out a marriage by repute and cohabitation as man and wife in Scotland, which will put an end to an English marriage taking place afterwards, yet there must be very pregnant circumstances. In a declarator of legitimacy by a child born of a connection in Scotland, against the representatives of her father, [ *101 ]
deceased, *who subsequently contracted a regular mar
riage in England, and after having children by the latter marriage, became domiciled and died in Scotland, his wife continuing to live in England; it was held first that the English marriage was no bar to an action proceeding on the allegation of a marriage effectually, though irregularly, constituted by the law of Scotland; and might be put an end to by proof of such Scotch marriage; second, that it was not incumbent on the pursuer to call the English wise as a party to the process; third, that in the circumstances of the case the pursuer had failed to establish a marriage between her parents.(z)
It was decided by the House of Lords that cohabitation in a foreign country (Isle of Man) as husband and wife, was insufficient to constitute marriage in Scotland. The reason of this is, because by the laws of the Isle of Man habit and repute do not constitute marriage, and that such cohabitation should take place in this country where the law exists.(a)
By the law of Scotland, a marriage by habit and repute, not objected to during the husband's lifetime, is sufficient to entitle the wife to her tierce or thirds(6) But the Scotch statute(c) against bigamy only applies to marriages celebrated in facie ecclesiæ.
5. OF THE EVIDENCE OF INTENTION OF PARTIES CONTRACTING.
The marriage contract must be deliberate, but it is implied in all contracts that the parties have taken such time, be it more or less, as they thought necessary, for no particular time for deliberation is assigned
(u) Elder v. M Lean, 8 Shaw. D. & B. 56. (z) Wright v. Wright, Trustees, 15 Dunl. (1) Thomus v. Gordon, 7 Shaw & D. B. & M. 767. 872.
(a) M'Culloch v. M'Culloch, Fac. 10 Feb. (2) Cunningham v. Cunningham, 2 Dow, 1759; Mor. 4591; sce ante, p. 62. 511.
(b) Stat. 1503, c. 77, (y) Farrel v. Barrie, 6 Shaw & D. 472; (C) 1551, c 19. Adair V. Adair, 7 ib. 597.
for that contract, any more than for any other. So like all other contracts it must be serious, not the sports of an idle hour, mere matters of pleasantry and badinage never intented by the parties to have any serious effect whatever ; at the same time it is to be presumed that serious expressions applied to contracts of so serious a nature as the disposal of a man or woman for life, have a serious import. It is not to be presumed a priori, that *a man is sporting with such dangerous play-things as marriage engagements. So
[ *102 ] again, the intention of the parties is to be regarded, for that is the substance of the contract, and what is beyond or adverse to it does nol belong to it. But then the intention is to be collected (primarily at least) from the words in which it is expressed, and in the English law it is alınost exclusively to be so collected. In all other countries a solemn marriage in facie ecclesiæ facit fidem, the parties are concluded to mean seriously, and deliberately and intentionally what they have avowed in the presence of God and man, under all the sanctions of religion and of law. But by the matrimonial law of Scotland a greater latitude is allowed, and the parties are at liberty to show another intention than that which the words express, and that, by virtue of a private understanding between them, this apparent marriage was mere imposition and mockery, without being intitled to any effect whatever. But still it lies upon the party who impeaches the intention expressed by the words to answer two demands, which the law must be presumed to make upon him; he must assign and prove some other intention; and secondly, he must prove that the intention so alleged by him, was fully understood by the other party to the contract at the rime it was entered into, for it cannot be represented as the law of any civilized country, that in such a transaction a man shall use serious words, expressive of serious intentions, and shall yet be afterwards at liberty to aver a private intention reserved in his own breast, to avoid a contract which was differently understood by the party with whom he contracted.(c)
In the case of Irregular Marriages in Scotland, the prior as well as the subsequent Facts and Circumstances may be looked at.}-- In the ease of irregular marriages in Scotland, it is the practice and it is the law of the country, to take evidence of all the facis and circumstances antecedent to the alleged ceremony, and all the facts and circumtances of the conduct of the parties subsequently to the ceremony; and that, from a complex view of all these circumstances, an inference is to be drawn, whether that real and deliberate consent was given which constitutes marriage; and in doing this,
[ *103 ] *resort is not to be had to the conduct of the parties subsequent to the ceremony, for the purpose of undoing a marriage contracted, but for the purpose of learning whether the parties did or did not, by their conduct, exhibit a.conscious feeling that no such ceré. mony had taken place between them as was sufficient to lead them, in their own ininds, to the conclusion that they were married persons.(d)
(c) Dalrymple v. Dalrymple, 2 Hagg. (d) Macneill v. Macgregor, 2 Bigh, N. S. Cons. R. 106, 107; Dodson, 60—62. 469, 470.
Instances where Marriages were not constituted.]--Although by the law of Scotland consent alone is necessary to constitute a marriage ; yet that consent must be deliberately given by both parties eo intuitu. If either of them have any other purpose in view than that of marriage, and this be clearly established, then the consent will not be of that nature which is required by law. Therefore the mere granting of a power of attorney by a man in France, to a woman in Scotland, with whom he had cohabited, for enabling her to transact his affairs in Scotland, and allowing her to assume the character of wise, was held not to constitute a marriage.(e)
A long correspondence, in which the parties styled each other husband and wife, and a declaration of marriage before witnesses, was found insufficient to constitute a marriage, where there was no consummation, and it appeared that at the time of the declaration, the alleged husband had resolved never to cohabit with the person he declared to be his wife.(f)
As the law of Scotland requires no definite form for the constitution of marriage, it becomes necessary to attend to the views of the parties in each case. A holograph letter discovered in a gentleman's repositaries at his death, in which he declared himself the husband of his housekeeper, who had long cohabited with and borne children to him, was held not to be sufficient evidence of marriage, for the letter, while it remained in his possession, was revocable and bound neither party.(8) A letter addressed by the man to a lady with whom he had inter[ *104 ]
course, "acknowledging her as his lawful *wife, with
liberty for her to use his name, though for particular reasons he wished the marriage to be kept private for some time;" was held not to be sufficient proof of any marriage or matrimonial contract having passed between the partics. In this case the acknowledgment was signed not for the purpose of making a marriage, but merely as a colour to serve another and different purpose mutually concerted between them, namely, that of preventing the disgrace arising from the pregnancy of the woman. The commissioners and the court of session had found the facts relevant to inser a marriage, but the House of Lords considering the transaction as a mere blind upon the world, and that no alteration of the stutus personarum was ever intended by the parties themselves, reversed the sentence, and pronounced against the marriage.(h) A. formed an illicit connection with B. by whom he had two children. More than four years after the birth of the younger child he addressed the following holograph letter to B. “My dearest Mary, 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.” This leiter was, at or about its date, delivered by A. to his agent, who preserved it till A's death. A. continued to cohabit with B. till his death six years thereafter, and had two other children by her. The court being of opinion that it was proved that the above letter was written to please -and satisfy her,-ihat she was aware of
(e) Sassen v. Campbell, 3 Shaw & Dun. lop, 159; Campbell v. Sassen, 2 Wils. & Shaw, 309.
(f) Muclauchlan v. Dobson, Mor. p. 12693.
(g) Anderson v. Fullerton, Mor. p.
12690. (h) M Innes v. More, Mor. p. 12683; 2 Hagg. Cons. R. 101.
its existence and import before or at its depositation with the agent,and that it must be held to have been delivered to him as her agent also,-held that a marriage was constituted between A. and B. and that the children, in consequence, must be assolzied (freed from) the conclusions of a declarator of illegitimnacy, brought by A.'s heir at law.(p) The case of Macgregor v. Campbell(i) is a very strong case.
It appears that Captain Campbell, an officer in the army, formed a connection with a woman who was cohabiting with him ; that he admitted his brother officers and their wives to visit her as his wife, and that she was by habit and repute received as such; but on the validity of this marriage being challenged, it appeared that this woman had actually received wages, and livery meal, which is board wages, according to the language of Scotland ; that she displayed herself not as acting in the capacity of wife, but in that of a servant. Upon that evidence the inference from other acts was rebutted, and it was declared that the marriage was invalid, because she continued to accept the wages which she had been in the habit of receiving ante. cedently. In another case it appeared that the parties exchanged mutual declarations, such as, if it had not been for their conduct either before or after the time of marriage (which the court always takes into consideration, pronouncing upon a complex view of the whole case,) would in their judgment have constituted a marriage in the law of Scotland. The writings they interchanged were to the following effect. The lady signed this: “Skirling Mill, February the 16th, 1779. I hereby solemnly declare you, Patrick Taylor, in Brickenshaw, my just and lawful husband, and #remain your affectionate wife.” He on his part signed a similar paper, and
[ *105 ] signed himself her affectionate husband. An action of declarator having been brought in the court below, the marriage was held to be valid; and on appeal to the House of Lords, it appearing that at the time of the interchange of those letters, there was an understanding, which was inferred from the conduct of the parties, that those letters were to be given up on demand, that house reversed the interlocutor of the court below, and found that there was no marriage. In this case there was no evidence of consummation.(k)
So a marriage was held not to be solemnized where there were no circumstances established on which a presumption could be founded that at the time of the irregular ceremony any real consent was given by the parties. And from the evidence adduced, it appeared that there was no reason to believe either that a free, deliberaie, voluntary, solemn consent had been given to constitute immediately the relation in law of man and wife, or that there had been any consummation.
In May, 1816, a marriage ceremony between M. and G. (according to the evidence of one wiiness, who spoke positively to the performance of the ceremony, and the identity of the parties, confirmed by another witness who spoke with less firmness as to the identity,) was performed by a minister of the church of Scotland, upon the produce
(p) Hamilton v. Hamillon, 22 Nov. 1839, 480. Fac. Coll. No. 12, p. 75.
(k) Taylor v. Kello, Mor. 12687–1268), (i) Mor. p. 12697; cited 2 Bligh, N. S. cited 2 Bligh, N. S. 479.
tion of an instrument purporting and proved to be a certificate of a proclamation of banns, which proclamation, from the date of the certificate as compared with a registration of the marriage, and the evidence of the witnesses, could not possibly have been made. But it was proved to be the usual certificate, and that, according to the practice in Scotland at the time, banns were in fact scarcely ever proclaimed when such certificates were given. The minister who performed the ceremony had afterwards been banished for forgery, and collusion in effecting a marriage, and became incompetent to give evidence; but a book kept by him, in which the marriage in question ( *106 ] appeared to be *regularly entered, was produced, and
proved by the wife and daughter of the minister, who also proved the performance of the ceremony.
M., who had afterwards married another husband, upon a suit to establish the first marriage, in her defence admitted, that one evening in May, 1816, by means of threats, and particularly of personal injury to a rival suitor, who afterwards became the second husband, she was induced to go, and went with G. to the house of the minister before mentioned, but from the agitation of her mind that she was incapable of paying attention to what then passed, and was convinced that she did not consent to the marriage. She also admitted, that after the ceremony she returned with G. to her father's house, but denied the consummation. It was in evidence that M. was in the habit of calling upon G. at his printing office late in the evening, and alone; and that afier the ceremony of the marriage, in speaking of it, she said it was not binding : “ what would two or three words of an outlawed man do?" It was also in evidence that, on two occasions, in the presence of her father, she was addressed and her health drank by the name of Mrs. G., which salutation was in one instance returned, and another received, without observation by her or her father. It was also in evidence, that upon two occasions, I., the second husband, after his marriage, came to the house of M. when G. was there, and went secretly to an upper room, where he remained alone.
The marriage with G., as alleged, took place in May, 1816. In June, 1816, a marriage was regularly solemnized between M. and I. It was proved that G., before his alleged marriage with M., had adınitted that I was a more favoured suitor; that upon the marriage between M. and I. he had accepted a present of a pair of gloves ; that he had frequently been present in social parties with I. and M., to whom he drank by the name of Mrs. I.; that he slept in the same room where M. and I. were in bed together as man and wife; and in all his intercouse with them, which was frequent, recognized them as such. Two years after the marriage of M. and I., and their cohabitation,
G. raised an action in the Commissaries' Court *against ( *107 ] M., of declarator of marriage and adherence. There was issue of the marriage between M. and I., but neither the children nor I. were made parties.
It was held by the House of Lords (reversing the judgment below), that if a celebration of the ceremony of marriage took place between M. and G., it was to be presumed from the conduct of the parties before the ceremony, from the circumstances proved at the time of