Abbildungen der Seite
PDF
EPUB

HILL

0.

PAUL.

if those duties are not properly performed. Whether 1841. the emoluments of the office are considered necessary to the due discharge of its duties is not now the subject of inquiry. It must be assumed that the public are not taxed higher than is necessary. What then would be the effect of this deed if it included all the profits of the office for the future? That such an assignment would be illegal in England there can be no doubt. Palmer v. Bate (t) is directly applicable to this case. And in Davis v. The Duke of Marlborough (u), there is the observation of Lord Eldon, already cited, which seems to me quite in point, and which lays down the true rule and the distinction to be observed in these cases, and to which for that reason I refer as showing what is the law of England on this subject. What is the difference, as to the profits of the office, between the laws of this country and of Scotland; and if they are the same as to the office itself, where is there any decision which shows that while an office itself cannot be assigned, the future profits of that office are assignable. Erskine says that such profits are not apprisable or adjudgeable, and that all reasonable pensions of office are alimentary. This is just the principle of the law of England as explained by Lord Eldon in Davis v. The Duke of Marlborough; so that it now appears that the principle of the English decisions is to be found in the law of Scotland. In Wilson v. Falconer (x), the conveyance of the office now in question was held to be inept and illegal. Lord Kames there seemed to think that adjudication of the emoluments of an office might be competent; but he was overruled by the rest

(t) 6 Moore, 28; 2 Brod. & Bing. 673. See the cases there cited in the notes.

(u) 1 Swanst. 79.

(x) Dec. 7, 1759; Morr. 165.

1841.

HILL

บ.

PAUL.

of the Court, and his opinion has never since been acted on.

But I shall not, my Lords, prosecute this subject farther, as it does not furnish the ground on which the judgment of this House will proceed.

I move your Lordships to reverse the judgment of the Court below; to declare that the preliminary defences ought to be sustained; and that the Appellant, the defender in the suit below, ought to be declared entitled to the expenses of the suit.

[It was accordingly ordered that the interlocutors complained of be reversed, and that the Appellants be entitled to the expenses of the suit in the Court below.]

CHRISTIAN STEWART, otherwise MENZIES,
claiming to be the Spouse of JOHN
MENZIES, Esq., of Chesthill, and CA-

THERINE and JOHN MENZIES, other-Appellants.
wise CATHERINE and JOHN STEWART,
Children of the said JOHN MENZIES
and CHRISTIAN STEWART

JOHN MENZIES, Esq., of Chesthill

Respondent.

J. M. and C. S. cohabited. There was no direct evidence of the time at which their intercourse began, but J. M. wrote to C. S. a letter, which was dated in March 1826, and was in the following terms: "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 connexion betwixt us." It appeared that this letter was not delivered to C. S. till 1828.-HELD, that it did not in any way constitute a marriage by the law of Scotland.

This House will, as a general rule, make the costs of an appeal follow the affirmance of the judgment of the Court below.

THIS was a process of declarator of marriage and for aliment, or otherwise of seduction and for damages, at the instance of the Appellants, Christian Stewart, otherwise Menzies, and John and Catherine, her children. The claim for aliment was at the suit of the children; and an alternative averment of seduction, and a conclusion for damages on that ground, were maintained by the Appellant, Christian Stewart.

The summons came before the Court of Session in the year 1832, when it appeared that the claim of marriage was founded on a letter written by the Respondent, and sent by him inclosed in one addressed to Mrs. Janet M'Naughten. The letter in question was in the following terms:-" Duneaves, 25th March

1841: Feb. 9. March 18. 22. Oct. 6.

Marriage.
Proof.

1841.

STEWART

บ.

MENZIES.

be

you

to

1826. Christy,-You and I having lived together as
man and wife for some time, I hereby declare
my lawful wife, in the event of a child being born
in consequence of the present connexion betwixt us;
and I am yours truly." (Signed) "John Menzies,
of Chesthill." The whole of this note was in the
Respondent's own handwriting; it was addressed on
the back thus: "For Christian Stewart, Duneaves
House."

The Lord Ordinary, treating the children as the illegitimate children of this Respondent, at first awarded them for aliment the sum of 10 l. annually, payable half-yearly in advance, with a fifth part more of each half-yearly payment in case of failure. At the same time he appointed the parties to lodge their cases, in order to raise the question whether any lawful marriage had taken place between these parties, so as to render the children legitimate. Upon appeal to the Lords of the Second Division of the Court of Session, they increased the aliment from 10 7. to 15l. for each of the children, and remitted to the Lord Ordinary. Other proceedings were then had, and other interlocutors pronounced; by one of which, dated the 8th of March 1833, the Lord Ordinary remitted the case to the Commissaries to inquire into the marriage, and report their opinion to him.

Against this interlocutor the Appellants appealed to their Lordships of the First Division of the Court, and the prayer of their reclaiming note was in the following terms:-" May it therefore please your Lordships to recal the above interlocutor, and to find, 1st, That the holograph letter by the defender, dated 25th March 1826, together with the admitted cohabitation of the parties subsequent to the letter, constitute a legal marriage: 2d, That the allegations

made by the defender, in order to evade the consequences of his own legal admissions, that the said letter libelled on was false, and prepared by himself, or his agents under instructions from him, for purposes of fraud, cannot be admitted to probation: And, 3d, That the pursuers, John and Catherine Menzies, have acquired right, and are entitled, in the circumstances, to the privileges and status of legitimate children; and that these rights are not subject to be defeated by proof of the facts alleged by the defender: And, 4th, In the event of your Lordships' admitting the defender's allegations to probation, to remit the process to the Jury Court instead of the Commissaries; or to do otherwise in the premises as to your Lordships shall seem proper."

The Lords desired cases to be prepared; and the Respondent then admitted that he had written and delivered the letter in question, but alleged that he had done so for a different purpose, namely, for a purpose of deceit. He set forth in his statement, that in the course of the year 1827 he became acquainted with a young lady of the name of Macdougall, and engaged to marry her. He afterwards, however, became desirous of breaking off that engagement, and being unwilling to assign any reason for doing so, which could prove offensive to the feelings either of that lady or of her relations, he falsely pretended that he was under a previous engagement to marry the Appellant. He accordingly instructed the Appellant to make a similar statement, in case any questions should be put to her by the friends of Miss Macdougall; and with the view of supporting her statement, he wrote the letter relied on by the Appellant in the condescendence, and delivered it to her. At the time when he did so, he explained to her that

1841.

STEWART

v.

MENZIES.

« ZurückWeiter »