Agnes Kello v. Patrick Taylor [1787] UKHL 3_Paton_56

UKHL
Agnes Kello v. Patrick Taylor
[1787] UKHL 3_Paton_56 · 1787-02-16
Circumstances in which a written acknowledgment of each other as husband and wife, not seriously gone into on the part of the female, but immediately repented of, did not constitute marriage.At the annual market fair of Skirling, the appellant, Agnes Kello, who was the only daughter of a farmer in Skirling-Miln,

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“Skirling Miln, Feb. 16, 1779. I hereby solemnly declare you, Patrick Taylor in Birkenshaw, to be my just and lawful husband; and remain your affectionate wife. Signed Agnes Kello. To Mr. Patrick Taylor in Birkenshaw.” He took this and kept it, leaving in her possession a counter acknowledgment signed by himself. No consummation or copula followed. They separated immediately; and a few days thereafter, when the appellant reflected on the matter, she came to think it improper and a “foolish business,” and immediately sought back the line. He at first evaded her request; then promised to give it her back if she would give him an obligation for £500. About three months thereafter he came, along with two persons, one a relation and the other his creditor, and endeavoured to obtain the consent of her parents to the match, and also consent to the proclamation of banns. This proved unsuccessful. In a week thereafter she wrote him for a return of the letter, begging him “to return that foolish line,” and stating that he could not be received in person till that was done. No answer was returned to this letter, which was dated in May 1779, and no further correspondence took place until the beginning of the year 1780, when he paid her a few visits. He then, on the eve of bankruptcy, came and prevailed on her parents to allow proclamation of banns to proceed on the ensuing Sunday. This, after considerable reluctance, was consented to; but, in the meantime, inquiries having been made, they dispatched a messenger to stop the proclamation of banns on Sunday. He arrived too late for the first and second proclamation, but only in time to stop the third. All further correspondence then ceased. And the present action of declarator was only raised by the respondent

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Mar. 23, 1785,The Commissaries pronounced an interlocutor of this date, after ordering the judicial declaration of both parties:
“Having resumed consideration of the cause with the declarations emitted by the parties, in respect it appears that the defender, when arrived at an age when, by the law of Scotland, she was deemed capable of consent, voluntarily and deliberately granted to the pursuer, the declaration libelled on, and received from him a counter declaration of the same import; find the mutual obligations relevant to infer marriage between the parties; find the pursuer and defender married persons accordingly, and decern.”
The case having been brought by advocation to the Court of Session, the Lord Ordinary refused the bill, on reclaiming petition the Court adhered.Against these interlocutors the present appeal was brought.

Pleaded for the Appellant .—There is no authority in law

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Pleaded for the Respondent .—Marriage is a consensual contract, which is perfected by consent alone, cohabitation or consummation not being essential, but only a concomitant or consequence of the constitution of marriage. Consummation is not the primary aim and condition of marriage, it is only an accessory. And though parties, who from accident or natural causes, are incapable of consummation, may insist on setting aside the marriage, yet this is not because such consummation is essential to the constitution of

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After hearing counsel, it was

“Declared that the two letters insisted upon in this process, dated the 16th day of Feb. 1779, signed by the said Patrick Taylor and Agnes Kello, respectively and mutually exchanged, were not intended by either, or understood by the other, as a final agreement; nor was it so intended or understood, that they had thereby contracted the state of matrimony, or the relation of husband and wife, at and from the date thereof; on the contrary, it was expressly agreed, that the same should be delivered up, if the purpose they were calculated to serve proved unattainable, whenever such delivery should be demanded, which last mentioned agreement is further proved by the whole and uniform subsequent conduct of both parties. Therefore ordered and adjudged that the interlocutors complained of be reversed , and that the Court of Session do remit the cause to the Commissaries with instructions to assoilzie from the declarator of marriage.”
Counsel: For the Appellant, Ar. Macdonald, Rob. Dundas. For the Respondent, Jas. Boswell, C. Hay, Wm. Adam.Note .—Unreported in Court of Session.