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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Edward MacCullock v. Janet MacCullock [1759] UKHL 2_Paton_33 (16 January 1759) URL: http://www.bailii.org/uk/cases/UKHL/1759/2_Paton_33.html Cite as: [1759] UKHL 2_Paton_33 |
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Page: 33↓
(1759) 2 Paton 33
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
[M. 4591.]
No. 13.
House of Lords,
Subject_Marriage.— Constitution.— Cohabitation in Foreign Parts.—
Held, where marriage was sought to be established by cohabitation, and habit and repute, that proof of cohabitation in the Isle of Man, where a different law prevails, did not constitute marriage in Scotland.
Declarator of marriage in the following circumstances;—The appellant and respondent were nearly related. Their fathers had each estates. They had been acquainted from infancy, and at the time when the connection was first formed, she was living with the appellant's brother-in-law, where he himself resided, and to whose family she acted in the capacity of governess. The respondent alleged that they then formed for each other a sincere and mutual love and affection, and, in consequence of the appellant's most serious and repeated addresses, a marriage was then privately concluded between them, in March 1750; but as the appellant's estate was inconsiderable, it was deemed prudent to keep it private, and, on this account, no solemnization took place. She remained in this house until she became pregnant, when she removed to her mother's. The appellant, on the other hand, averred, that while at his brother-in-law's, he slept in the summer-house, in the garden, detached from the dwelling house, which was crowded with children and servants; but the respondent got into a way of coming to the summerhouse, where the appellant lay, after the rest of the family were asleep. Her first visit surprised him; but she repeated her visits, and taking care to come dressed suitably to her inclinations, only in a loose gown and smoke petticoat, at last gained her point. These interviews were, however, discovered; she was watched, missed one night out of her bed-room, and the matter being narrowly inquired into, she was turned out of the house. She retired to her mother's, big with child; and afterwards agreed to accompany the appellant to the Isle of Man. Here, it was further alleged by the respondent, they lived and cohabited together as
Page: 34↓
Aug. 18, 1758.
The commissaries, of this date, unanimously “find the facts, circumstances, and qualifications proven, not relevant to infer marriage, and therefore assoilzie the defender, and decern.”
Feb. 27, 1759.
In an advocation of this judgment, the Lords, of this date, refused the bill; “but remits the cause to the commissaries, with this instruction, that they find the marriage proven.”
Against this interlocutor, the present appeal was brought.
Pleaded for the Appellant.—That there was no vestige of proof of habit and repute, or cohabitation as man and wife, at bed and board in Scotland; and the only proof of that nature, attempted to be made out, had reference to the period when they resided at the Isle of Man. That even if that evidence were otherwise competent, it is, when examined, imperfect and inconclusive, and such as can by no means establish a marriage. The manner in which they first arrive
Page: 35↓
Pleaded for the Respondent:—By the law of Scotland, actual celebration is not necessary to the constitution of marriage; but marriage may be constituted by the consent of two persons agreeing to accept each other as man and wife. This consent may be either by contract in writing, or agreement by words, or by cohabitation as husband and wife, or by the acknowledgment of the parties expressed in the presence of witnesses. The marriage in the present case is established both by the cohabitation and by acknowledgment of the parties, either of which, taken separately, is sufficient. The equality of the parties' rank—the unblemished nature of the respondent's character—the near relationship—their acquaintance from infancy, preclude all ideas of their connection being other than as man and wife, and their open cohabitation, as proved for the period of six months in the Isle of Man, together with the universal public
Page: 36↓
After hearing counsel, it was
Ordered and adjudged that the interlocutor complained of be reversed, and that the bill of advocation be absolutely refused.
Counsel: For Appellant,
Ro. Dundas,
Al. Forrester.
For Respondent,
C. Yorke,
Al. Wedderburn.
Note.—Lord (Chancellor) Hardwicke, has written this note on his papers as to the grounds of the decision.—“The grounds on which the Lords went were: 1 st. That it was admitted that there was no marriage solemnized. 2 d, No proof of any contract de presenti or de futuro. 3d, That almost the only evidence of cohabitation and acknowledgment was in the Isle of Man, where the respondent went clandestinely with the appellant to lie in, and conceal her shame. 4 th, That the cohabitation required by law to establish a marriage ought to be inter familiares natos et vicinos; where one of the parties has a domicile; and it would be of dangerous example and consequence—dangerous to young girls, heirs of families, &c. that such a remote cohabitation in the Isle of Man should be allowed to constitute a marriage in Scotland.”