1841. STEWART บ. 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 (b). 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 (a) Fac. Coll. vol. xi. p. 347. (b) 15 Dunl. B. & M. 1200. 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 letter 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 (c) 1 Dow & Clark, 208; 3 Wils. & Sh. 85. 1841. STEWART V. MENZIES. 1841. STEWART v. MENZIES. is made dependent on the performance of a condition, then the answer is, that the condition having been performed at the time of the delivery of the letter, the act of delivery gave it the character of an absolute and unrestricted declaration of marriage on the part of the man, and the acceptance of it by the woman made the marriage complete. The Attorney-general and Mr. Whigham, for the Respondent:-The only evidence of marriage is that letter of 25th March 1826. That letter is neither a declaration of present marriage, nor is it an absolute promise of future marriage. It is merely a promise under a condition. The law of Scotland will not recognise such a promise of marriage. On the face of the letter it is fully apparent that the parties had already had intercourse together. It was not therefore a promised followed by copula; it was a promise following a copula, and a promise to take effect only on the happening of a certain event. It contemplated cohabitation, and yet did not distinctly stipulate marriage as the certain and inevitable consequence. The words of the letter are, "We have been living together as man and wife." But that phrase is used in the letter just as it is used when counsel in a cause, wishing to show that an illicit intercourse has existed between certain parties, say to a witness, "Did they live together as man and wife?" It does not mean that they had lived together as spouses, it means only that they had had sexual intercourse. It could mean nothing else; for if they had been spouses, or had, except merely so far as intercourse went, lived together as man and wife, where would have been the necessity to promise a marriage? The parties lived together in concubinage. That mode of living cannot be made the foundation of a marriage, and this is not a promise which can be converted in ipsum matrimonium by a subsequent event. It would be most dangerous so to treat it. This consequence might follow; a man might give such a promise to half a dozen women at the same time: would the Court say that, under such circumstances, she who first produced a child was to be entitled to the rank and honours of a wife? This has already been decided; for in Kennedy v. M'Douall (d), it appeared that Miss Kennedy had admitted the defender to intercourse without a promise; and after that event had taken place he made her this promise, that if she should prove with child he would marry her. A child was afterwards born, and the Commissaries held this to be a marriage, but the Court of Session overruled that decision, considering it clear that such a conditional promise of marriage was illegal, and that a promise subsequent to a copula could not make a marriage. The same rule must be applied in the present case, and the claim of this Appellant must be rejected, and the decision of the Court below affirmed. The Lord Advocate, in reply:-If the letter founded on had stopped at the words, "I hereby declare you to be my lawful wife," it would have been unquestionably sufficient to support a declarator of marriage. The words afterwards added do not destroy its character. The added condition cannot be admitted to restrict the preceding terms, which are in themselves absolute. The letter was really made and delivered some time after the date it bore. At the real time of making and delivering a child had been born; the (d) Ferg. Cons. Rep. 84; 3 Shaw & Wils. 135; 5 Brown Sup. 789. 1841. STEWART บ. MENZIES. 1841. STEWART v. MENZIES. 6 October. supposed condition, therefore, had been fulfilled, and Lord Cottenham:-One of the questions raised in the papers in this case was most properly abandoned in the discussions at the bar of this House; and that was whether it was competent for the parties to produce evidence for the purpose of showing with what object the letter founded on in this cause was written. As that question has thus been abandoned, I shall make no further observations upon it. The main question therefore is, what is the status of the Appellant; whether she is or not the wife of the Respondent. That question will turn on the construction to be given to the letter dated in May 1826, first taken per se, and then considered with relation to the general law of Scotland and the facts proved. It is an admitted fact that there was a cohabitation of these parties, both before and after the date of that letter. The summons put the claim of marriage on two grounds: first, on the ground of a promise of marriage previous to any cohabitation, and a subsequent copula upon that promise given-of which, however, there was no direct proof; and, secondly, on the ground that the letter itself was a declaration of marriage ipso facto made by the mutual consent of the parties concerned. A consent de præsenti is essential to such a marriage, and a subsequent marriage is established by a proof of a promise and a copula, on the ground that the copula was in consequence and performance of an anterior promise. The copula does not constitute the marriage, but is taken, where circumstances justify it, as evidence of the performance of a previous promise. To assume it to be otherwise |