Mrs Christian Stewart or Menzies, and Catherine Menzies, and John Menzies v. John Menzies, Esquire of Chesthill [1841] UKHL 2_Rob_547

UKHL

Mrs Christian Stewart or Menzies, and Catherine Menzies, and John Menzies v. John Menzies, Esquire of Chesthill

[1841] UKHL 2_Rob_547

Promise of marriage, on condition of a future event, excludes application of the fiction, that consent de presenti was given at the moment of copula.

Subject_ Id. —

A declaration in the event of a child being born of an existing connection, cannot receive effect to constitute marriage, though the condition should be purified.

Subject_ Seduction. —

What held not to amount to proof of.

Subject_ Proof — Marriage. —

It is competent to prove by parole the circumstances under which, and the intention with which, a letter was written and delivered, to the effect of negativing its having been intended to form a contract of. marriage, which its terms, without such evidence, might have imported.

Subject_ Id. — Marriage. —

Circumstances in which the evidence of relations was held to have been properly excluded.

Subject_ Process — Jury Trial. —

Where a record has been made up and evidence taken before the Commissaries, with a view to declarator of marriage, an alternative conclusion for damages for seduction ought not to be remitted for trial by jury. Costs should always follow the judgment in affirmance.

Statement.

The appellants brought action against the respondent, for declarator of marriage between the first appellant and the respondent, and for adherence, and alternatively for damages, by reason of seduction, in case it should be found, that the first appellant and he were not married persons. The narrative of the summons was in these terms: —

at his residence of Duneaves, and continued to live therein, down to the term of Whitsunday 1827 : That soon thereafter, and while living at the said residence of Duneaves, the said John Menzies professed the greatest love and affection for the pursuer: That, in consequence of the said John Menzies, defender, his repeated addresses and solicitations, and of his promise to marry the pursuer, the said Christian Stewart or Menzies, she agreed to accept of him as her husband, and accordingly, the pursuer, admitted him to all the privileges of a husband, and he cohabited with her as his wife: That in consequence of the said promise, and subsequent cohabitation on the faith thereof, the pursuer and the defender became married persons: That the defender, upon the 25 th March 1826, acknowledged and declared the said marriage, by the following document, holograph of himself: and consummation thereof, and down to a recent period, the defender owned and acknowledged, treated and entertained, behaved to, and cohabited with, the pursuer, as his wife : That ever since the birth of the pursuers, the said Catherine Menzies, and John Menzies, junior, the defender acknowledged them as his lawful children, and treated them as such: That from the foresaid document above quoted, and the facts and circumstances above set forth, and other facts and circumstances to be proved, it will be made “to appear, that the pursuer and the defender are married persons, husband and wife of each other, and that the other pursuers, the said Catherine Menzies, and John Menzies, junior, are their lawful children.”

“That, in the month of April 1825, or about that period, the pursuer entered as housekeeper into the family or domestic establishment of the defender,

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“Duneaves, 25th March, 1826. Christy , — You and I having lived together as man and wife for some time, I hereby declare you to be my lawful wife, in the event of a child being born, in consequence of the present connection be twixt us. — And, I am, yours truly.”

(Signed) ‘ John Menzies of Chesthill:’ That, both previous and subsequent to the date of the said document, the defender owned and acknowledged to various and sundry persons, and on various and sundry occasions, and in various and sundry ways, that he was married to the pursuer: That the other pursuer, the said Catherine Menzies, was procreated of the said marriage, and was born upon the 10th day of June, 1827 : That the other pursuer, the said John Menzies, junior, was also procreated of the said marriage, and was born on or about the 18th day of November, 1829: That after the foresaid promise of marriage,

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The respondent denied the statements in the summons, so far as they implied marriage or seduction; and alleged that the letter founded on, had been given by him to the appellant, to enable him thereby to impose on the relations of a young lady to whom he had made proposals of marriage, a belief, that it was beyond his power to enter into that state, and pleaded,—

“I. That as the promise of marriage contained in the letter libelled on, was qualified by the condition, that a child should be born in consequence of the illicit connection, the presumption that an agreement to marry was interchanged at the time of the subsequent copula, was necessarily excluded.

II. That an express declaration that the appellant was his wife would not constitute a marriage, if it could be proved, that, at the time when it was made, neither of the parties intended that it should have that effect.

III. That as he did not seduce the pursuer, he was not liable to her in the damages, which she alleged that k she had sustained in consequence of her seduction.”

In the course of making up the record, the appellant

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The Lord Ordinary, after closing the record upon condescendence and answers for the parties, remitted to the commissaries to take the proof of the parties. The appellants reclaimed against this interlocutor, and prayed the Court to find among other things, — 1st, That the letter of the 25th March, 1826, which was holograph of the respondent, together with the admitted cohabitation of the parties subsequent to the letter, constituted a legal marriage. 2d, That the allegations made by the respondent, in order to evade the consequences of his own legal admissions, that the said letter was false and prepared by himself or his agents, under instructions from him for purposes of fraud, could not be admitted to probation.

On 6th June, 1833, the Court “having heard counsel on the points of law, in the second prayer of the reclaiming note,” appointed parties to prepare cases thereon, and on advising these cases, adhered to the interlocutor of the Lord Ordinary, “it being understood and hereby declared, that the proof shall be held as before answer.”

The case went to proof, and witnesses were examined by the appellant, to prove marriage by cohabitation, and habit and repute, both prior and subsequent to the date and the delivery of the letter of 25th March, 1826, with the view of establishing a marriage independent of that letter, and also of establishing a marriage either at the

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The evidence led by the appellant consisted principally of the household and other servants of the respondent, to the exclusion of the brothers and sisters and sisters-in-law of the appellant, who likewise were in the service of the respondent, during the period of his intercourse with the appellant; and so far as it went to establish marriage independent of the letter of 25th March, 1826, it was held to have altogether failed. The import of the proof formed no part of the argument in the printed case, nor, as is believed, at the bar of the House of Lords; and therefore, the appellant apparently acquiesced in the opinion of the Court below, on the supposition that the evidence of the relatives was rightly excluded. This exclusion, however, formed the subject of argument on the appeal.

With regard to the circumstances in which the letter had been written and delivered to the appellant.

Allan Macdougall, examined by the appellant, swore, — “That he understood that the defender was with his regiment at York in 1827, but the deponent had no occasion to see him there. Depones, That there was some of the deponent's own family residing at York then with his the deponent's mother : That two or three of his sisters were then there with her. Depones, That he has occasion to know that the defender paid particular attention to the deponent's youngest sister, named Colina, and this he learned from the defender himself. And the deponent was informed by the defender that he had proposed marriage to her. Depones, That the deponent went to

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John M'Dougall, examined by the appellant, swore, —“That he is acquainted with the defender : That the knew him some time previous to the year 1828, but saw him very seldom during that year. Depones, That he made proposals of marriage to one of the deponent's family, and some steps were taken afterwards with a view to a marriage. Depones, That the first intimation which the deponent received that the marriage was not to go on, was his receiving a letter from the defender. Depones, That he cannot say what became of the letter : That it is not in his possession now: That he cannot say whether it is in existence or not: That the defender's letter to the deponent merely requested an interview: That the deponent, in consequence, had an interview with the defender at Tynedrum : That the defender produced

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The letter referred to by this witness, as having been written by the respondent to Mr Sharpe, was in these terms:—

“Duneaves, 24th August, 1828.

Dear Sir, — I some time ago was imposed upon to give a letter, a copy of which I will hereafter shew you, to a woman who has born a child to me. The letter, she informs me, she intends employing to prevent my forming any marriage connection. I have,

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Private. (Signed) John Menzies .”

“ William Sharpe , Esq., W.S.

5, Frederick Street, Edinburgh.”

James Stewart, who was the uncle of the appellant, but not upon the best terms with her, when examined by the respondent, swore inter alia,—“That neither during her pregnancy, nor after the birth of the child, did the pursuer ever say to the deponent that she had any promise of marriage from the defender: That he remembers of a letter being written by the defender to the pursuer, about the middle of summer, 1828. Depones, that he did not see the letter delivered to the pursuer, but he got a sight of it afterwards from the pursuer: That the pursuer told him when she so shewed him the letter, that she had got it from the defender a few days before. Depones, That the letter was not dated in that year, but was put back two years. Depones, that the pursuer and the deponent had a conversation about the letter, when the pursuer told the deponent that it had been given to her for the purpose of the defender's getting quit of a Miss Macdougall: That the pursuer seemed very careless about the letter at that time, but he does not recollect of her saying any thing about its being given back: That his wife, nor no other person, was present at this conversation : That before the letter was seen by the deponent, he had not heard from the pursuer any thing about it. Depones, that at that

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Christian Stewart, the wife of James, examined by the respondent, swore, —“That the pursuer never on any occasion said to the deponent that she (the pursuer) was married to the defender, or had a promise of marriage from him. Depones, That to the best of her recollection, in the year 1828, she had a little conversation with the pursuer on the subject of a letter from the defender to the pursuer. Depones, That the pursuer said that the defender had said to her, if she would receive a letter from him, it would serve him ‘a great deal,’ and that it would do her no harm, and that he would stand her friend. Depones, That “it was on account of a young lady who had a promise of marriage, as she thinks, and that it was to get, in her opinion, the better of that promise;” and that that was what the pursuer said. Depones, That the pursuer said she did not know whether to take the letter or not: Depones, That she knows the pursuer got the letter from the defender. Depones, That the pursuer shewed the letter to the deponent. Depones, that the letter was dated two years back, and the pursuer told her so. And being shewn the letter libelled on, No. 3 of process, depones, That she thinks it exactly the same, at least if it is not, it is very like the one shewn her, as

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Charles Stewart, examined by the respondent, swore,— “That he was tutor in the family of the late Mr Stewart of Crossmount, in the years 1831 and 1832 : That Mr Stewart died in December last, 1834: That in the end of summer, or beginning of harvest, in the year 1831, the deponent saw the pursuer, Christian Stewart, at Crossmount: That he had no conversation with her himself: That the pursuer, on the occasion referred to, was in company with the late Mr Stewart of Crossmount. Depones, That after the pursuer went away from Crossmount, Mr Stewart told the deponent something of what had passed betwixt him and the pursuer on the said occasion. Interrogated, What did Mr Stewart state to have passed betwixt him and the pursuer ? The counsel for the pursuer objected to this interrogatory, upon the ground that it was an attempt to prove by hearsay a conversation, and not a fact in the case. To which it was answered by the counsel for the defender, That as Mr Stewart died before the defendr had an opportunity of entering upon his proof; and it being for the Court to judge of the weight due to the testimony, it was perfectly admissible, and did not fall under the objection of hearsay evidence, to the effect of excluding the testimony. The commissary-examinator having considered the objection and answer, repels the objection, and allows the interrogatory to

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Mrs Jean Stewart, widow of Mr Stewart, referred to by Charles Stewart, examined by the respondent, swore,— “That there was found in her husband's repositories a paper, entitled, “Memorandum,—Note of a conversation with Christy Stewart, 1831,” holograph of Mr Stewart, which the witness now produces, and being interrogated in causa, depones, That the deponent recollects of the pursuer coming to Crossmount House in August, 1831: That the deponent had no conversation with her: That the pursuer was some time in conversation with Mr Stewart, and the deponent observed her afterwards leave the house. Depones, that Mr Stewart, immediately after the pursuer left Crossmount, told the deponent that the pursuer had come to borrow money

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The memorandum referred to by this witness was in these terms: —

“MEMORANDUM, — Note of a Conversation with Christy Stewart , 1831.

Christy Stewart came to Crossmount with her brother Alexander, (who had been several years in my service as a herd,) in the latter end of July or beginning of August. She told me she came to consult me as to what course she should follow with Chesthill, as he had deserted her and her children. Christy and me are not very well acquainted. She assigned as a reason for coming to consult me, that her family were originally from my property, and that many of her kindred were still upon my lands, and about my family,

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As this memorandum referred to the appellant's brother, Alexander Stewart, he was allowed to be examined by her, reserving all questions as to his credibility. He swore,— “That he recollects having accompanied his sister, the pursuer, to Mr Stewart's of Crossmount, four years ago: That this was in the summer, and well on in the summer: That the object of the deponent and his sister going to Crossmount, was to seek a little money from Mr Stewart: That this was the only time he ever went to Crossmount with his sister : That they sought the money for the purpose of the pursuer keeping herself and family: That they saw Mr Stewart of Crossmount: That they had conversation with Mr Stewart: That it was the pursuer chiefly who spoke with him; but the deponent also took some part in the conversation: That the pursuer asked money; but Mr Stewart said he had not a penny at that time : That Mr Stewart asked the pursuer about a letter that she had from Chesthill, (the defender:) That Mr Stewart said that it was owing to Miss Macdougall that the pursuer had the letter: That the pursuer said it was not, and that she had the letter before Chesthill ever saw Miss Macdougall. Interrogated, Whether the pursuer told Mr Stewart that she came to consult him as to what course she was to follow in regard to Chesthill ? Depones, That he never heard of any such statement made in his presence. Interrogated, Whether Mr Stewart said that he had heard that she had got the letter to shew to Miss Macdougall's friends ? Depones, That Mr Stewart said that he had heard that she had got the letter to keep Miss Macdougall off Chesthill.

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The proof having been concluded, the Lord Ordinary, (Jeffrey,) on 18th December, 1835, pronounced the following interlocutor, adding the subjoined note: 1 —

Footnote

1 “ Note .—The pursuer has evidently no case in the declarator without the letter of 25th March, 1826, the separate proof of verbal acknowledgments or open marital cohabitation having altogether failed. If the letter, though delivered for the purpose it expresses, (with the continued intercourse after its date,) does not constitute a marriage without the other proof, it will not materially supply the defects of such proof. If it was delivered and accepted for quite another purpose, it makes the case worse for the pursuer than if it had never existed.

The Lord Ordinary thinks there is, on the whole, sufficient evidence that it was delivered and accepted for such a special and improper purpose ; and he rests his judgment on this. But he is also of opinion, that in the circumstance of this case, where a declaration or acknowledgment of marriage is conditioned on the birth of a child, and where it is certain that there had been a great deal of personal intercourse before the letter was delivered, the mere delivery of that letter, with proof that the intercourse was afterwards continued, are not sufficient to constitute a marriage according to the law of Scotland. If any reliance, indeed, is to be placed on the report of the opinions delivered when the reclaiming note for the pursuer was refused, on 6th December, 1833, (12, Shaw, 179,) this point was then

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“The Lord Ordinary having heard parties fully on the concluded proof, and whole cause, and made avizandum, sustains the defences proponed against the declaratory conclusions of the libel for marriage and legitimacy; assoilzies the defender from the whole of those conclusions, and decerns : And, before farther answer, appoints the cause to be enrolled, that the pursuer may state whether, and to what effect she

Footnote

deliberately decided by the Court; and though the proof was, no doubt, declared to be before answer, and the relevancy may, therefore, in point of form, be still open for argument, the Lord Ordinary feels that it would be improper for any single judge, even if he had scruples as to the merits, to go against this determination in a more advanced stage of the same cause. He must say, however, that, looking at the whole course of decisions since the case of Moir and M'Innes, and with reference especially to that of M'Dowall, he cannot but concur in the principles of that determination, though he is fully aware of the qualifications it may be thought to have received from some of the opinions expressed in Sim v. Miles , 20th November, 1829, (F. C. and 8 Shaw, 89.)

But these are truly points which never can be raised in the case, if the Lord Ordinary is right in holding it sufficiently proved that the letter in question never was delivered or accepted for the purpose of constituting or proving an actual marriage, but for a very different purpose, of imposing upon third parties by a false pretence. That this is sufficiently proved, it is supposed would scarcely be disputed, if the evidence of Mr Stewart of Crossmount was allowed to be competent But a strong effort was made, at the debate, to have his evidence set aside, as being in substance an improper disclosure of admissions made confidentially by a party when consulting and seeking advice from another, with a view to an impending lawsuit. But though it is quite true that Mr Stewart was so consulted, and that his situation approaches in principle to that of a law agent, where advice is sought in similar circumstances, still the Lord Ordinary can find no authority for extending this disqualification beyond the professional limits within which he conceives it has hitherto been confined ? And this is less to be regretted, as the admission of this evidence only tends to confirm, beyond all question, what was already legally established by the uncontradicted testimony of the two Stewarts, (uncle and aunt of the pursuer,) and rendered morally certain by almost all that appears, and that does not appear on the face of the proof. There is, first of all, the admission that the letter, though bearing date in March, 1826, was not delivered till some time in 1828. Next, there is the clear proof by the defender's letter to the pursuer's brother, and by the depositions of Captain Macdougall and his brother, that the letter was really prepared and delivered with a view to impose upon these gentlemen ; and, finally, there is the conclusive circumstance, that, from beginning to the end of her proof, and during the whole

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The appellants reclaimed to the Court against this interlocutor, and the Court, on the 4th February, 1836, pronounced this judgment:—

“The Lords having considered this note, with the other proceedings, and heard counsel thereon, adhere to the interlocutor complained of; refuse the desire of the note, and remit to the Lord Ordinary to proceed accordingly.”

Footnote

period of her connection with the defender, there is not a vestige of evidence of her ever having directly claimed the title or rights of a wife, or even hinted to her confidants and relations that such was truly her condition. She has brought forward two witnesses to swear that the defender sometimes called her by a name which, though it properly signified nothing more than woman, was yet often used (they say) as equivalent to that of wife. But neither these nor any other witnesses, say they ever heard her address the defender, or speak of him as her husband, though of the two she was evidently the most likely to indulge in such epithets, and to hazard, in this way, the occasional breach of a not very intelligible scheme of concealment. There are many circumstances, also, independent of her acquiescence in the baptism of the children as bastards, and in their universal repute as such, which afford irresistible evidence of her consciousness of her true state and condition.

But though the case is not attended with much difficulty, when it is considered that the pursuer was bound to make out her allegations by legal evidence, it is impossible not to feel that there are parts of it still enveloped in a painful obscurity, and which present but an awkward aspect for the defender. The Lord Ordinary alludes particularly to the evidence about the letter from Hamilton,— to the private letter from the defender himself to his agent, of 24th August, 1828, —to the proof of his having said that he durst not marry, and that there were people about him who prevented him from marrying,— and to the singular tone of deep feeling and despondency in his letter to the clergyman of 15th June, 1827, which is much more like that of a man committed to an unsuitable and disreputable marriage, than of a young Highland officer, who finds himself the father of an illegitimate child. It is plainly impossible, however, to hold these as proofs of an actual marriage, and the indications of kindness to her relations, which were quite as likely to flow from the influence of a favourite mistress, as of an humble wife, are of still less importance.

The Lord Ordinary scarcely supposes that the pursuer means to insist in her claim of damages as for seduction.

F. J.”

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On the 14th May, 1836, the Lord Ordinary pronounced the following interlocutor : —

“The Lord Ordinary having considered the foregoing remit from the Inner House, in respect it is stated that it is not the intention of the pursuer, Mrs Christian Stewart or Menzies, to appeal against the judgment, assoilzieing the defender from the declaratory conclusions of the libel for marriage and legitimacy, appoints parties' procurators to be ready to debate at next calling on the alternative conclusion of the summons for damages.”

The appellant, Christian Stewart, then moved the Lord Ordinary that he should order an additional record to be made up with a view to the alternative conclusion of the summons for damages on the ground of seduction, and also that the case should be remitted to a jury, with a view to try the question.

On the 31st May, 1836, the Lord Ordinary pronounced the following interlocutor, and added the subjoined note : 1 —

Footnote

1 “ Note . — There is more authority than the Lord Ordinary (looking at the terms of the Judicature Act) could have expected, for allowing a record regularly closed in this Court to be opened up, or added to, though it does not clearly appear whether, in all these cases, this was not done substantially of consent; at least not in spite of the opposition, or in face of a plea of incompetency seriously maintained by an adverse party. For the reasons stated in the interlocutor, however, this is conceived very clearly to be a case not fit to be added to those exceptions from the rule of the statute, independently altogether of the peremptory renitentia of the defender.

As to the suggestion that the case should now go to a Jury, there is no doubt that a separate and independent action of damages for seduction must have gone to that tribunal; and that it is in itself the fittest and best tribunal both for deciding whether damages are due, and especially for assessing their amount. But besides the reasons stated in the interlocutor, which seem legally conclusive, it is to be considered, that even on a view of mere equity and expediency, such a course would be liable to great practical objections The pursuer by no means proposes to lay aside the witnesses

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“The Lord Ordinary having heard parties' procurators, on the motion of the pursuer, Christian Stewart, to have a new or additional record made up on the remaining conclusions of her summons for damages on account of seduction, and also to have the cause remitted to the jury roll, with a view to the justice and extent of her claim for such damages being determined by a verdict; and having made avizandum with the debate and whole process, in respect that the existing record was made up on the whole process, and embraces both the alternative conclusions thereof, that there is no allegation of res noviter veniens ad notitiam, and that it is clearly competent for the pursuer to prove her alleged seduction, under the record as it stands, refuses to allow any new or additional record now to be made up, or to report to the Lords of the Second Division, with a view to making up such a record; and in respect that the process libelled alternatively, as the pursuer chose to libel it, was a proper consistorial cause, and must have gone to the Commissaries while that Court subsisted, for decision on both alternatives; that the original interlocutor of the former Lord Ordinary, (8th March, 1833,) remitting to the Commissaries “to

Footnote

already examined, and the documents already produced under the interim report of the commissaries. But she wants to enlarge and add to the proof she has thus already obtained, to re-examine before the Jury such of the surviving witnesses as she may select, and to read at her pleasure from the depositions of those who are dead, and to produce de novo the writings already recovered, together with any other she may still be able to make furthcoming; in short, to use the proof taken by the Commissaries, under the general remit already noticed, as a precognition for a Jury trial upon one branch of the cause then generally remitted to the Commissaries for probation, and partly proved in relation to this branch as well as the other.

It is needless to point out the hazards and abuses to which such a course of proceeding must be liable; and the Lord Ordinary is not aware that it as ever been sanctioned.”

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Against this interlocutor the appellants reclaimed to the Inner House, who, on the 5th July, 1836, pronounced the following judgment:—

“The Lords having considered this note with the other proceedings, and heard counsel thereon, adhere to the interlocutor complained of, and refuse the desire of the note.”

Thereafter, on 7th July, 1836, the Lord Ordinary pronounced the following interlocutor: —

for seduction, and the defender a conjunct probation, and remits to the Commissaries, or any one of them, to take the proof with the usual powers; grants warrant for letters of incident diligence, at the instance of both or either party against witnesses and havers, and that any lawful day betwixt and the third sederunt-day in November next, to be then reported to the Lord Ordinary. Ten days' previous notice being given by the one party to the other previous to leading the proof.”

“The Lord Ordinary allows the pursuer, Mrs Christian Stewart, a proof of the libel, quoad the conclusion of damages

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Condie, a haver, examined by the appellant, produced a letter written by the respondent to the clergyman of the parish where his family residence was, in these terms: —

“ York Barracks , 15th June, 1827.

My dear Sir, — I was never more surprised, since ever I came into this world, than I was when I got your letter yesterday morning. I am so annoyed and hurt at the business altogether, that I can scarcely say or tell you any thing. I wish the child to be baptized as soon as possible; and I have asked R. Black to be my sponsor. I will pay all the fines and things that are requisite, by your letting me know, as soon as possible, all the different things and fines, and what would be the amount expected. I beg of you not to bring her before any session, or thing of that kind, as I was myself the transgressor. I have sent my servant home, to see and settle every thing the best way he can, as it is not in my power to get away myself from here; and another thing, that I have not courage to face all my neighbours and relalions again; so this business has caused a separation between I and my country for ever; so don't be at all in doubt, for I am really serious.

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I thank God that I am not at home, and hope never to have it in my power to say that I have seen the young lady. I intend to remove them in a short time till the child is nursed, and shall then board her for her lifetime, with any person who will take any charge of her. I feel for the poor woman more than it is in my power to mention, when I think of the mischief I have done in destroying her character for ever; for my own, it was lost long ago.

I wish you to write me as soon as you can, all the particulars, and let the baptism be as quiet and concealed as you can possibly make it. I wish you and all your's health and happiness; and also every person around you, as I have never again a chance of seeing you in the Highlands. Remember me likewise to all at Glenlyon House and Druimachary, and believe me ever to remain, my dear Sir, yours most sincerely.

P.S. — I wish the child to be called Katherine Stewart, not Menzies at all.”

The appellant produced another letter, written by the respondent to herself, but without a date, which was in these terms : —

“Dear Christy, — I am sorry that I cannot be able to go to see you to-night; but I send you a letter which I had been intending to do long ago, and before I ever expected or understood that you were again with child, a circumstance which I can assure you, gives me most distressing ideas, as I am alone the person to blame, and on whom, I trust, all the blame will be laid. I have every inclination and feeling to take you to myself; but there are just two things to be considered, one is, that all my respectability and connection with my equals will be at an end; and

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Report says that I am now to be married to another, which I dare say may hurt you; but I declare not a word of it is true; and even though I were anxious, I dare not marry for four years to come, from the settlement which has been made between Captain Macdougall and myself. You will also be aware that it would hurt my father very much if I was to marry you at this moment. I will be west to see you I hope to-morrow, and then you will be

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(Signed) John Menzies .”

“P.S. — I forgot to mention, that whatever house you will get to live in, if you leave this country, I will furnish it to you myself, and let you have any two of my cows you may wish for, or any kind you should like. (Intd.) J. M.

I will see you to-morrow, and you can tell me every thing then.”

And in support of this branch of the case as to seduction, she farther relied on the evidence of Robert Stewart, who swore, — “That he has resided for a long time at Foss, and is acquainted with the family of the pursuer: That the pursuer's father was a farmer at Rannoch, and afterwards at Foss. Interrogated, Whether he was a respectable person? Depones, That he never heard any thing against him. Interrogated, Whether he was a person of character, credit, and reputation in the country ? Depones, That he was. Interrogated, depones, That he knew the pursuer when at Foss. Interrogated, Whether she was much liked when there ? Depones, and answers, “Yes; I think she was. I never heard any thing against her.” Depones, That at the death of the pursuer's father the family were young. Depones, That it is common in that part of the country where the pursuer's father lived, for the daughters of farmers to go into service.”

Another person of the same name also swore,— “That he has been the most of his days a residenter on the estate of Foss, and he had occasion to be frequently about the house of Foss, having been employed as a shoemaker by the proprietor, family and

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On the 1st of February, 1837, the Lord Ordinary pronounced the following interlocutor, adding the subjoined note: 1 —

Footnote

“Note. — There is no direct evidence (for what Robert Stewart depones at pp. 24 and 25 of the pursuer's proof, can scarcely be considered as an

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“The Lord Ordinary having heard the counsel for the parties on the concluded proof, as to the remaining or alternative conclusions of the summons, under which the pursuer claims damages on the ground of seduction, and made avizandum, finds that there is no

Footnote

exception) as to the nature of the intercourse between the parties, or their behaviour to each other, prior to the time when an illicit connection must (at the very latest) have begun, viz., about nine months previous to the birth of the first child in June, 1827 ; and all the pursuer has to found upon in relation to this most important period, is, that as she had been by this time about eighteen months in the defender's family, it is to be presumed that she had all that time resisted his solicitations. But as this assumes, without any intelligible ground, that he had begun his solicitations as soon as she entered his house, it is obvious that no regard whatever can be paid to such a vague and gratuitous surmise.

The whole case, in short, depends on two admitted letters of the defender, one addressed to the clergyman of the parish, on occasion of the birth of the first child, and dated 15th June, 1827 ; the other, and by far the most important, to the pursuer herself, without any date, but proved, by its contents, to have been written during her second pregnancy, and some time in spring, 1829. Both these letters, the pursuer contends, contain admissions of seduction on the part of the defender, and of his consequent obligation to make her reparation for the injury she had consequently sustained ; and the last of them also contains clear traces of a purpose of marriage, and indications that such a connection had been long contemplated by both of them, which, she says, she is entitled to draw back to the period of their first intercourse, and to assume as the cause of her yielding.

It is impossible to deny that the tenor of these documents gives a certain colour to those allegations, and gives the case somewhat of a painful character, in respect to the defender. But the Lord Ordinary, though he cannot but regret that this part of the cause could not be sent to the appropriate tribunal of a Jury, has not felt that he should be justified in finding upon this evidence alone that a case of seduction had been made out.

The defender's general expressions of self-condemnation, and of his deep feeling for the ruin and misery he had brought upon the pursuer, though stronger than are usual, or perhaps natural in a case of mutual transgression, do not necessarily infer that he was conscious of any thing which our law would consider as seduction ; that is, any artful practices, or false insinuations, held out to entrap a resolute chastity; — any deliberate plan to corrupt the principles or inflame the passions of an inexperienced female; or even any long and persevering solicitations after repeated repulse and resistance. In almost every case where a young woman gives way, in this sort, to temptation, the man is the aggressor, and in fact, as well as in morality, decidedly the most to blame; while, in every case, almost without exception the woman is incomparably the greatest sufferer. Yet it would be of perilous example to hold that even woman, upon her first lapse from virtue,

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Footnote

should be entitled to recover damages as for seduction, from her paramour. But if this could not be allowed, it would scarcely be less perilous to hold the feeling expression of these undoubted truths as evidence against the supposed seducer; and there is really no more in the expressions now referred to.

In the second letter, however, there are no doubt references to a matrimonial purpose, evidently not then for the first time brought into discussion between the parties; and not even then finally disclaimed or abandoned by the defender. It is here alone that the Lord Ordinary has had any difficulty ; and if this letter had been dated previous to the first connection, or even very soon after it, he would have been inclined to hold that it gave a character to the intercourse which might have justified the present claim of the pursuer. The great inequality of rank on which the defender chiefly insists, as excluding the presumption of these insinuations of intended marriage which have formed the chief indiciæ of seduction in most of the decided cases, would have become of no consequence whatever, if there had been such proof of actual matrimonial communings, as the Lord Ordinary thinks would certainly have been afforded by a letter of this strain, in the beginning of the intimacy, and connected, as it then would have been with the self-accusations already referred to, might have been quite sufficient to infer a full liability for the consequences of the pursuer's too implicit reliance on those insinuations. The difficulty, however, is in the dates; in the long interval between the time when their matrimonial contemplations may have originated, and the time when the pursuer yielded either to the mere request or to the artful seduction of the defender. In that interval she had become the mother of one of his children, and was about to give birth to another; she had entered into a state of regular concubinage with him ; and had become an object of more constant and respectful attention than there is any proof of her having been before she had submitted to his desires. It is believed to be far more common for men of affectionate natures to take up purposes of marriage with the mothers of their illegitimate children, towards whom they had not previously entertained, or professed any such purpose, than for men of any description to seduce women of inferior rank, by false expectations of marriage; and therefore, when the only proofs of such purposes are dated subsequent to the birth of children, the Lord Ordinary thinks he is bound to conclude ex eo quod plerumque fit, and to hold that they do not amount to evidence of antecedent inducements held out to give effect to amorous solicitations.

It is upon this ground that the Lord Ordinary rejects the claim of the pursuer. He is not at all moved by the reference in the second letter, to the trick upon Miss Macdougall, to which she consented to be an accessory, but of which the discredit is chiefly with the defender, or by his suggestion; that the matrimonial indications in that letter may have been

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The appellant reclaimed against this interlocutor, and on the 27th June, 1837, the Court pronounced the following judgment: —

“The Lords having considered this note, with the other proceedings, and heard counsel thereon, adhere to the interlocutor complained of, and refuse the desire of the Note.”

The opinions of the Judges at delivering this interlocutor will be found 11 F. C. 347.

The appeal was taken against these different interlocutors of the Lord Ordinary and Court.

Appellant's Argument

The Appellant . — I. The letter of 26th March, 1826, is twofold ; it first contains an acknowledgment of marriage, or an already existing connection as man and wife and second, a promise to declare the connection in case of the birth of a child. But assuming it not to amount to more than a promise of marriage, coupled with subsequent

Footnote

dictated, rather by gratitude for her services in that unworthy transaction, than by any original attachment. The whole strain and tone of the letter are exclusive of such a supposition. Neither could he think of depriving the pursuer of her right to reparation, if there was good evidence of her seduction, on account of her improper conduct in suppressing the letter now alluded to, during the discussion of the declaratory conclusions of the libel; unless it was proved that she had acquiesced in the statements of that letter, the mere receipt and custody of it might not put her in mala fide to insist in that declarator. But whatever her fault might he in that particular, it could never afford a legal set off against a just debt contracted to her by the defender's delinquency, any more than against such a debt contracted by his regular deed or agreement, not to insist upon the obvious fact, that he was himself a party to the suppression of this letter during that discussion, and seems to have been willing enough to lose the benefit of it in the declarator, for the chance of its not being forthcoming in the alternative conclusion for damages.

The Lord Ordinary has no wish to encourage farther litigation in this painful case, hut he thinks that the defender, after writing these letters, is not justified in casting this young woman on the world without some pro- vision. There may be a defence of turpis causa, if the intercourse continued after the date of the last letter, hut if it then terminated, he does not see -41 why action should not lie for the provisions there stipulated; at all events, he has no idea of allowing any expenses in this process. F. J.”

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[ Lord Chancellor . In 1826, the letter was a promise, coupled with a condition.]

If you take it as it stands.

[ Lord Chancellor . Do you put your case higher than if the letter had been delivered in 1826 ?]

Yes. It must be held as delivered in 1828.

[ Lord Chancellor . Suppose no child had been born after the delivery.]

The condition had been purified before the delivery, and there is neither averment nor evidence that carnal connection had been resumed before the letter was delivered. Besides, copula following, the condition is presumed to have been purified. Stair, IV. 45. 19; Shillinglaw v. M'Intosh , 7 S. 722. At all events, the condition was purified by the subsequent birth of the second child. In another view, the first part of the letter contained an acknowledgment of marriage, and the second, being intended to suspend the effect of the first for an illegal purpose, must be altogether disregarded.

II. There is no averment that the letter was obtained

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III. Though the evidence of near relations be in the general case inadmissible, clandestine and secret marriage forms one of the exceptions to the rule, for near relatives are the natural depositaries of such a secret, and to exclude their evidence would, in most cases, be to

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IV. The 6 Geo. IV. cap. 120, sec. 38, shews, that it was the intention of the legislature, that actions of damages for breach of promise of marriage and seduction, should be tried by Jury, as the tribunal best fitted to inquire into the facts, and assess the damages. The conjunction of the declarator of marriage with the claim for damages was according to long established usage. But the statements on the record were necessarily limited to support the conclusion for declarator only. When the declaratory conclusions, therefore, were disposed of, the Court should have allowed a new record to be prepared as to the remaining conclusion, and remitted it for trial by Jury. The refusal of the Court to remit for trial by Jury at an early stage of the case, applied to the trial of the declaratory conclusions, which certainly were not triable in that form.

V. If the Court properly reserved to itself the decision of the claim for damages, their judgment was contrary to the evidence. The two Robert Stewarts established the respectability of the appellant, previous to entering the respondent's service; and his own pleadings, and his letter to the appellant and the clergyman of the parish, proved that the appellant had become the victim of his seduction, and that he had exhibited the strongest feelings of contrition and self-reproach for the injury he had done her.

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Respondent's Argument.

The Respondent . — I. Present consent is necessary to marriage, and matrimony must be the object of it. Consent for the purpose of fornication can never be perfected into marriage. Thomas, 7 S. 872. In such a case the presumption of consent to marry at the moment of copula is necessarily excluded, and without such consent there cannot be marriage. Ersk. I. 6, 4 ; Stair, I. 1, 6; Macdowall v. M'Dowall ; Ferg. 163; Cameron v. Malcolm , Mor. 12680; M'Gregor v. Jolly , 3 W. and S. 85. The letter of 25th March, 1826, has none of the expressions which, if intended to acknowledge a subsisting marriage, it would certainly have contained, and is addressed to the appellant in her own maiden name, and it is admitted that it was not delivered until the close of 1827, or beginning of 1828, plainly excluding any notion of matrimonial consent having been interchanged at the date of the letter. Viewing it, on the other hand, as a promise of marriage, its effect was dependent on a condition which might, or might not, have been purified, leaving the status of the parties uncertain until that should be ascertained ; this is necessarily to exclude any presumption of present unqualified consent, which by the law of Scotland has always been considered necessary. M'Innes v. More , 10 S. and D. 590. The condition involved an agreement to live for a time at least in a state of concubinage, it was therefore illegal, and could never be purified so as to perfect the promise. Bell's Dig. 206; Ersk. III. 3, 83.

II. But the letter was given with another intent than that of marriage, and evidence to shew this was properly admitted. Though it is no doubt incompetent to admit parole testimony to explain or derogate from the terms

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III. There was not any penuria testium, which alone could have made the evidence of the near relatives admissible. The allegations of the summons negatived such a supposition. Besides, the penuria must be unavoidable, from the nature of the case, and the situation of the parties, or be occasioned by the opposite party. But here sixteen witnesses had been examined, shewing that there was not in fact any penuria; there was no evidence that the respondent had done any thing to circumscribe the means of proof; neither were the facts of the case such as to justify the belief, that there could be any scantiness of evidence. This evidence was therefore properly rejected. Dalziel v. Richmond , Mor. 16780; Bell v. King , Mor. 16786; Laing, 16th Nov. 1814, 18 F. C. 22; Manuel v. Fraser , 1 Murray, 391; Brown v. Wintours , 2 Murr. 455; Gibsons v. Marr , 3 Murr. 263; Anderson v. Jeffrey , 4 Murr. 105; Dougall v. Dougall , 11 Shaw, 1020. In Craigie v. Hoggan ,

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IV. By 1 W. IV. c. 69, sec. 37, consistorial causes are specially excepted from trial by Jury. It was competent for the appellant to have separated her causes of action, and to have made the claim for damages in an action which could competently have been triable before a Jury. She chose, however, to join the two together, and to prepare and close the record; and in her reclaiming note against the admissibility of the evidence tendered by the respondent, she prayed, that in the event of the respondent's averments being admitted to proof, the cause should be remitted to the Jury Court. This note was refused, and the interlocutor refusing it has not been appealed from.

V. There is evidence of illicit connection between the parties, but none of those qualities in the commencement of that connection, which would be necessary to support a claim for damages, by reason of seduction. There is no evidence whatever that the appellant's virtue yielded to the fraudulent contrivances of the respondent, and that she was not as much the tempter as the tempted, quod volenti non fit injuriam, and their relative situations in life were not such as to raise any presumption of this kind.

Ld. Chancellor's Speech .

Lord Cottenham . — My Lords, a considerable portion of the voluminous papers in this case is occupied in the discussion of a question raised by the appellant,

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The main question, which is that of the status of the appellant, whether she is to be considered as the wife of the respondent, turns principally upon the effect of the letter of the 25th of March, 1826, with reference to the law of Scotland upon the subject of mariage, first taken per se, and secondly, taken with reference to the facts proved.

It is an admitted fact, that cohabitation preceded and followed the date of that letter, and the time at which it is admitted to have been delivered to the appellant. The letter is dated 25th March, 1826, and is in these words, — “Christy, You and I having lived together as man and wife for some time, I hereby declare you to be my lawful wife, in the event of a child being born in consequence of the present connection betwixt us. I am yours truly, John Menzies.” The summons puts the alleged marriage upon two grounds, — 1st, A promise of marriage previous to any cohabitation cum subsequente copula, of which no proof was given; and 2d, Upon this letter, as being an acknowledgment and declaration of the marriage; but it does not put the case upon this letter as being a promise to marry, cum subsequente copula. Consent de presenti is essential to

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The letter, therefore, taken per se, does not support any of the grounds upon which a Scotch marriage can be supported. The very able counsel for the appellant felt this so strongly, that he rested his client's case principally upon this, that the letter, though dated in 1826, was not delivered to the appellant till late in 1827, or early in 1828, after the birth of the child, and therefore ought to be considered as a positive declaration of present marriage, the condition having at that time been performed. This would, indeed, be doing what the appellant properly insisted cannot be done, that is, construing a written document by extraneous evidence of intention. But if the fact of the letter not having been delivered till 1828 be resorted to, so must all the other

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If, then, this letter be inoperative for the purpose of constituting or proving a marriage, the case of the pursuer fails altogether. There is no other evidence deserving of observation, and the other points in the case are of no difficulty. The rejection of the evidence of the pursuers' near relations, according to the law as it then stood, was clearly right, and there is no reason to suppose that their evidence, if given, and believed, would have benefited the pursuer, seeing what was the real history of the transaction is proved by unquestionable evidence. The course adopted with respect to the conclusion for damages upon the alleged seduction, was also I think, strictly proper; the pursuer had a choice of proceeding at once in an action for that purpose, in which case, the Jury would have been the constituted tribunal to try the question; but she chose to conjoin the claim for damages with the action of declarator of marriage, and after proofs in such suit, complains of the Court assuming jurisdiction, as to the case of seduction. The evidence does not establish a case of seduction; it proves, indeed, conduct in the defender highly discreditable, as it leaves no doubt of his having been a party at least to the ruin of the pursuer, whom, as being in his service, he was in honour bound to protect; but that by no means establishes per se a title to damages for

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For these reasons, I have no hesitation in advising your Lordships to affirm the interlocutors appealed from. A question important, I fear, to the pursuer, remains to be considered, the costs of the appeal; looking at the conduct of the defender throughout the transaction in evidence, and particularly to his treatment of the woman he had ruined, and the children she had borne to him, and the probably distressed circumstances of the appellant, I should have been glad to have found grounds, upon which I could have advised your Lordships not to fix upon the appellant the costs. of this appeal. Such reasons probably operated upon the Court below, in refusing to the defender the expenses of the suit; but it is, I fear, to the practice as to costs in this House, having formerly been so imperfect and uncertain, that the number of frivolous appeals, particularly from Scotland, is to be attributed. Nothing can be more important to the interests of suitors, than to discourage such expensive and useless litigation. It has, I have reason to hope, been much checked of late years, by the altered system as to costs, and I have always felt it my duty, in considering the question of costs, in each particular case to look to the effect which the course to be adopted might have upon this general question; and in this House, and in the Court of Chancery, I have thought that benefit would arise from adhering more closely than had been done by some of my predecessors, to the principle of making the question of costs follow the result of the suit upon the merits, particularly when the question depended upon matters of fact, and the conduct of parties. I have been assured, and I have

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Lord Brougham . — My Lords, I entirely agree with my noble and learned friend in this case, which I heard the greater part of with him. It is a case subject to the observations which he has made, and it is therefore with some reluctance that I have come to the conclusion I have arrived at.

Judgment.

Ordered and Adjudged, That the petition and appeal be dismissed this House, and that the interlocutors, so far as therein complained of, be affirmed.

Solicitors: Alex. Dobie — Richardson and Connell, Agents.