Countess of Strathmore v. George Forbes, sometime Factor and Steward to the said Countess, and Susan-Janet-Emilia Forbes, an Infant, lawful daughter of the said George Forbes, by the said Countess, his wife [1751] UKHL 6_Paton_684

UKHL

Countess of Strathmore v. George Forbes, sometime Factor and Steward to the said Countess, and Susan-Janet-Emilia Forbes, an Infant, lawful daughter of the said George Forbes, by the said Countess, his wife

[1751] UKHL 6_Paton_684 · 1751-03-20

Countess of Strathmore , Appellant v. George Forbes , sometime Factor and Steward to the said Countess, and Susan-Janet-Emilia Forbes , an Infant, lawful daughter of the said George Forbes, by the said Countess, his wife, Respondents

[Elchies. Proof No. 9. Fraser's Domestic Relations, Vol. I., p. 208.]

House of Lords, 20th March 1751 .

Subject_ Marriage — Cohabitation — Proof. —

an incident of that marriage. On appeal to the House of Lords, appeal withdrawn, of consent, and interlocutors affirmed.

A declarator of marriage and legitimation was brought by the respondent, Forbes, founding upon marriage celebrated and performed in Scotland, by some clergyman unknown; and founding, also, on cohabitation in Scotland, and also cohabitation as man and wife in Holland. Held him entitled to a proof of the marriage, and also of the cohabitation as man and wife in Scotland, but not of the cohabitation in Holland. On advocation of this judgment of the Commissaries, the Court remitted to them to allow a proof of the marriage in Scotland, and of the cohabitation in Holland, as

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A declarator of marriage was raised by the respondent, George Forbes, against the Countess of Strathmore, setting forth that, in 1745, he was married to the said Countess, in her own bedroom, in her dwelling-house at Castle Lyon , by a person of her own procuring, for that purpose, whom she called a clergyman; and from that time they had cohabited together, treated and entertained each other as husband and wife; and, in the beginning of October thereafter, while she, the said Countess, still remained at Castle Lyon , and he having occasion to be at Edinburgh, she, finding herself pregnant, sent for him, whereupon they resolved to set out for Rotterdam, where they arrived, and continued to reside for sometime, and where she was delivered of a female child, in May 1746; and that during their residence in Holland, they cohabited together, at bed and board, owned, treated, and entertained each other as husband and wife, and were held and reputed such by all the many persons who had occasion to know and converse with them; and, in particular, that having caused a clergyman to come and baptize the child, she, the said Countess, before, and to him, and other witnesses present, declared that she and the respondent were husband and wife, and they acknowledged and declared themselves married persons, and that the said child was their lawful child.

That afterwards it was agreed, between the appellant and respondent, that the appellant should return to Scotland, to endeavour to reconcile her friends to the marriage, he remaining in Holland, where it was stated he was obliged to remain, from his accession to the rebellion. Accordingly, she went to Scotland, but never returned to her husband's company and society; and now refused to adhere.

Jan. 5 1750.

The Commissaries pronounced this interlocutor:—

fully in the pursuer's duplies, they supersede the consideration thereof until the proof allowed of what happened in Scotland, is adduced and concluded.”

“Having considered the process and letters produced by both parties, allow the pursuer to prove that the defender and he were married together, time and place libelled. And, as to the cohabitation as husband and wife, and acknowledging one another as such in Scotland, before answer, allow the pursuer to prove all facts and circumstances tending to make out the same: And allow the defender a conjunct probation thereanent, and grant diligence accordingly. But as to cohabitation in Holland, libelled and condescended on more

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Against this interlocutor both parties complained to the Court of Session by advocation.

Feb. 27, 1750.

The Court of Session remitted to the Commissaries, with the instruction that “they allow a proof to the pursuer of the facts that passed in Holland to be taken, and to be con joined with the proof that shall be taken in Scotland.”

Feb. 28, 1750.

The Commissaries pronounced an interlocutor in terms of this remit, accordingly, allowing the pursuer a proof of all the facts and circumstances tending to make out the cohabitation as husband and wife, and the acknowledgment of one another as such, both in Scotland and Holland.

The Countess brought a suspension of this interlocutor, which was refused.

Against these interlocutors the present appeal was brought by the appellant.

Journals of the House of Lords.

But after answers were ordered to the appeal, on petition by the appellant, asking leave to withdraw the said appeal, in regard the said appeal was premature, in respect the Courts below had passed no judgment upon the sufficiency of the said George Forbes' libel, and had only allowed him a proof before answer, and praying that the said appeal be dismissed, and the interlocutors hereby complained of be affirmed.

And after hearing Mr Henry Dagge, the petitioner's agent, and likewise Mr Alex. Ross, the agent for the respondents at the bar,

It was ordered and adjudged, that the said petition and appeal be dismissed this House, and that the several interlocutors therein complained of be, and the same are, hereby affirmed. And it is further ordered, that the appellant do pay to the respondents, the sum of £40 for costs.

Counsel: For the Appellant, D. Ryder, W. Grant, W, Murray. For the Respondents, ( No Case given in).

Note .—Lord Elchies has the following note in regard to this case: “The Commissaries allowed him to prove the actual marriage, and before answer to prove all facts and circumstances tending to make out the cohabitation as husband and wife in Scotland , but superseded the proof of cohabitation in Holland, till the other proof be concluded. Both parties presented bills of advocation;