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1841:

Feb. 9. March 18. 22.

Oct. 6.

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.

Marriage.

Proof

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.

STEWART

v. MENZIES.

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 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 l. to 151. 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

ст

1841.,

STEWART

0. MENZIES.

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

MENZIES.

he had no intention of thereby making her his wife, and the letter was received by her upon that understanding. Although it bore date the 25th of March 1826, it was only written and delivered to the Appellant in the course of the year 1828. He alleged, too, that no change whatever took place in the intercourse of himself and the Appellant, or in their treatment of each other, or in the way in which they appeared and were treated by the world, after the delivery of this letter. The Appellant denied all knowledge of the fraudulent purpose thus alleged by the Respondent. Evidence was given by both parties on these points.

The case came a great many times before the Lord Ordinary and the Court of Session, and on the 18th of December 1835 the Lord Ordinary (Jeffrey) “sustained the defences against the declaratory conclusions of the libel for marriage and legitimacy,” appending to his decision a very elaborate note of his reasons for so doing. This interlocutor was maintained, after appeal, by a decision of the Court of Session on the 4th of February 1836 (a). On the 1st of February 1837, the Lord Ordinary made his final interlocutor in the cause, repelling the claim of damages for seduction, but found no expenses due, on the ground, as he stated in his appended “note," of the conduct of the Respondent. This interlocutor was, after appeal, maintained by a judgment of the Court of Session (6).

Many of these interlocutors were brought under appeal, and among the rest, questions were raised as to the admissibility of some of this evidence received in the Court below in the course of the cause, and which went to explain or contradict the presumptions created

TP

III

WIE

(a) Fac. Coll. vol. xi. p. 347.

(6) 15 Dunl. B. & M. 1200.

1841.

STEWART

MENZIES.

by the letter. Questions were also raised as to the competence of the order remitting to the commissaries, but no other matter was finally decided by the House of Lords except that which related to the construction of the letter of 1826. Their Lordships' decision on that question, which went to take away the very foundation of the action, rendered all notice of the others unnecessary.

The Lord Advocate and Mr. J. Henderson, for the Appellant :-The letter founded on here constitutes a valid contract of marriage, whether it is considered as a declarator that a marriage existed at the time it purported to be made, or as a promise made at that date, but which was actually performed at the time of the delivery of the paper to the Appellant. The former, however, is the proper mode of considering it. The letter is in fact a declaration of an existing marriage. It is proof of that mutual consent immediately to contract marriage, which by the law of Scotland gives validity to the proceeding; Macniel v. Mac Gregor (c). At the time of the date it was a promise; that promise was followed by a copula; and at the time of the delivery the marriage had been completed, and was then publicly declared. The Ictter is in terms as strong as anything can be: “I hereby declare you to be my lawful wife.” That declaration, made before witnesses, would ipso facto constitute a marriage; and made by writing, and published by delivery of that writing to the woman, it is equally a marriage. But if it should be said that this is not a declaration of an existing marriage, but a promise to make a marriage, and that that promise

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