Scottish Court of Session Decisions

Subject_1 PROOF.

Forbes
v.
Countess of Strathmore

1750, Feb. 27.
Case No. No. 9.

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George Forbes, who had been my Lady's livery servant, sued a process of adherence against her and libelled actual marriage 2d August 1745,—living as man and wife till November 1745 in Scotland, when finding herself with child they took shipping together for Holland and lived there as man and wife, and she brought forth a daughter who was publicly baptized,—her coming home to sound her friends' inclinations, but leaving him who durst not come home because he had been in the late Rebellion, but gave him credit for L.1000 to trade with,—and thereafter employing people to treat with him to pass from the marriage for a sum of money; but he owned he was doubtful of being able to prove the actual marriage, and either would not or could not name the celebrator, who he said was provided by the Lady. The Commissaries allowed him to prove the actual marriage, and before answer to prove all facts and circumstances tending to make out the cohabitation as husband and wife in Scotland, but superseding the proof of cohabitation in Holland till the other proof be concluded. Both parties presented bills of advocation; the Lady for allowing him any proof at all, because he was doubtful of bringing a direct proof of the actual celebration; Forbes on the other hand for superseding the proof of cohabitation in Holland. None of us made any difficulty of refusing my Lady's bill; but we differed as to the other. The chief argument for the interlocutor was that cohabitation in Holland even as man and wife does not infer marriage without proclamation of banns, or rather as the President observed, without appearing before the burgomaster and registering their names. 0n the other hand the President observed two cases in the Court, owe of Hamilton of Grange, which had been brought here in several different shapes, first by repeated advocations from the Commissaries, afterwards by suspension, and also by reduction, in which at last he was himself one of the counsel, where the question occurred and was fully argued, and a proof followed of cohabitation in England; and in a later case of Lord Semple the Court refused a proof of cohabitation at Gibraltar, only because they would not condescend on the witnesses. That though nothing could have the civil effect of marriage in Scotland, but celebration secundum legem loci, yet consensus et copula even in Scotland would make a good marriage in Scotland, and it was not an agreed point whether cohabitation in Holland would not have the same effect; but that was not here the question, but the proving a marriage entered into in Scotland, when subsequent cohabitation in Holland would have a strong effect; that it did not signify whether the pursuer knew or did not know who was the celebrator, yea even though it had been another footman; the consensus de presenti and the subsequent copula would make a marriage. I was of the same opinion, and observed the danger as well as expense of dividing the proof without necessity. The inconveniency insisted on of exposing characters did not move me after the process had gone thus far. And as to the last, that as for the most part the celebrator is provided by the husband, the poor woman very seldom knows in clandestine marriages whether he is a Minister or not. The Lords remitted with instruction to the Commissaries to allow the pursuer to prove all facts and circumstances of the cohabitation in Holland at the same time with the proof already allowed. Pro were President, Dun, Monzie, Murkle, Shewalton, Drummore reporter, et ego. Con. were Minto, Strichen, Kilkerran.