Scottish Court of Session Decisions

The pursuer, Christian Stewart, and two children borne by her to the defender Menzies, raised a summons of declarator of marriage and legitimacy against him, founding partly on a certain letter addressed by him to her, and partly on the allegeance, “that, both previous and subsequent to the date of the said document, the said John Menzies, defender, owned and acknowledged to various and sundry persons, and on various and sundry occasions, and in various and sundry ways, that he was married to the pursuer, the said Mrs Christian Stewart or Menzies.” A record having been made up, certain questions were raised as to the letter founded on, in regard to which the Court pronounced the judgment mentioned ante XII. 179, whereby, inter alia, a proof was allowed before answer. Several witnesses adduced by the pursuer, were accordingly examined, who deponed to the intercourse which was openly carried on between the pursuer and defender, both in a cottage which he took for her, and in his own house, and to the footing on which they apparently lived, and also to the fact, that, on one or two occasions, he had used the term “wife” with reference to her. She further proposed to adduce her brother, two sisters, a brother-in-law, and a sister-in-law, with a view to prove the averments in the sixth article of her condescendence, which was as follows:—

“Although these acknowledgments were made, and the writings granted, the pursuer, at the request of the defender, and with a view to the feelings of his relations, did not assume publicly the rank of the pursuer's wife. The defender not only made these acknowledgments to the pursuer, which were communicated by her to her relations, but in presence of the relations, and particularly of Christian Stewart, then residing at Duneaves, he uniformly spoke of the pursuer as his wife, and so addressed her in their presence. In so far as was compatible with his purpose of concealment, he entertained, treated, and cohabited with the pursuer as his wife. The pursuer was not only vested with the full power of regulating the household, but appointed the whole servants. These were selected with a view to their being likely to keep secret the marriage of the defender with the pursuer, and the facts which indicated and proved that connexion between them. The pursuer had access to the whole repositories of the defender, and the complete control of all the effects in the household. She slept in the family apartments, both during the stay of the defender at Duneaves, and in his absence. She cohabited with the defender, and was otherwise treated and entertained as his wife, in so far as was compatible with the purpose of maintaining the secrecy. The pursuer never, while in the defender's house, received one farthing in name of wages, nor was any stipulation made upon the subject. No claim was ever preferred by her for wages, nor was she in that, or in other respects, placed upon the footing of other servants. The receipt by which it is pretended to be made out that the defender did receive wages, is holograph of the defender's factor, and was not given to, or subscribed by the pursuer. His conduct towards the pursuer was uniformly affectionate and respectful.”

To the admissibility of these parties, it was objected, that they were disqualified by their relationship to the pursuer, ¹ and that, neither in the summons nor on the record, did the statements import such privacy or concealment as to authorize a plea founded on necessary penuria testium, even if such could be pleaded when the penuria, if it existed, was created by the act of the parties themselves; while the evidence, so far as led, showed that, whatever might be held to have been the character of the intercourse between the parties, there was, at all events, no concealment of it.