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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Agnes Kello v. Patrick Taylor [1787] UKHL 3_Paton_56 (16 February 1787)
URL: http://www.bailii.org/uk/cases/UKHL/1787/3_Paton_56.html
Cite as: [1787] UKHL 3_Paton_56

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SCOTTISH_HoL_JURY_COURT

Page: 56↓

(1787) 3 Paton 56

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

No. 18


Agnes Kello,     Appellant

v.

Patrick Taylor,     Respondent

House of Lords, 16th February 1787.

Subject_Marriage — Constitution of Do. —

Circumstances in which a written acknowledgment of each other as husband and wife, not seriously gone into on the part of the female, but immediately repented of, did not constitute marriage.

At the annual market fair of Skirling, the appellant, Agnes Kello, who was the only daughter of a farmer in Skirling-Miln,

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became acquainted with the respondent Taylor, who had been a farmer in Birkenshaw. Taylor followed up this accidental meeting, by paying his addresses to her at her mother's house; he made an impression on her. But her parents inquiring more particularly into his character, were not satisfied. Their daughter was possessed of £2000, and her suitor was on the eve of a second bankruptcy. After eighteen months unsuccessfully soliciting her in marriage, he obtained the following writing signed by her, which he represented to her at the time to be quite innocent, and to mean no more than a declaration of her love and affection for him, and a promise of marriage at some future period, after her parents were satisfied.

“Skirling Miln, Feb. 16, 1779. I hereby solemnly declare you, Patrick Taylor in Birkenshaw, to be my just and lawful husband; and remain your affectionate wife. Signed Agnes Kello. To Mr. Patrick Taylor in Birkenshaw.” He took this and kept it, leaving in her possession a counter acknowledgment signed by himself. No consummation or copula followed. They separated immediately; and a few days thereafter, when the appellant reflected on the matter, she came to think it improper and a “foolish business,” and immediately sought back the line. He at first evaded her request; then promised to give it her back if she would give him an obligation for £500. About three months thereafter he came, along with two persons, one a relation and the other his creditor, and endeavoured to obtain the consent of her parents to the match, and also consent to the proclamation of banns. This proved unsuccessful. In a week thereafter she wrote him for a return of the letter, begging him “to return that foolish line,” and stating that he could not be received in person till that was done. No answer was returned to this letter, which was dated in May 1779, and no further correspondence took place until the beginning of the year 1780, when he paid her a few visits. He then, on the eve of bankruptcy, came and prevailed on her parents to allow proclamation of banns to proceed on the ensuing Sunday. This, after considerable reluctance, was consented to; but, in the meantime, inquiries having been made, they dispatched a messenger to stop the proclamation of banns on Sunday. He arrived too late for the first and second proclamation, but only in time to stop the third. All further correspondence then ceased. And the present action of declarator was only raised by the respondent

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three years afterwards, when he heard that another was paying his addresses to her. In defence to the action, she stated that the acknowledgment was not a de presenti marriage, but only a promise of future marriage; besides, here the writing had been forced from her, and had been virtually retracted. That a private writing, supposing immediate consent intended, was not sufficient, unless consummation or cohabitation followed, which was the law laid down by the civil law, Lib. 22, Cod. de Nupt.—Lib. 13, ejusd. tit,—Cujacius observ. lib. 6, c. 20—Puffendorff, lib. 6, c. 1, § 14, and the law of Scotland, Dirleton's Doubts, tit. Sponsalia—Bankton's Inst. vol. 3, p. 60—Stair's Inst. p. 26. That the writing here was followed by no consummation, and, besides, he had agreed to return the letter to her whenever she required it. Further, as evidence that the letter was only understood as a promise or declaration of an intention to marry at some future period, she founded on his repeated solicitations thereafter to get her consent, and the consent of her friends, to the marriage, which the act with reference to the proclamation of banns itself demonstrated. The respondent, on the other hand, contended that consensus non concubitus facit nuptias, and in support of this doctrine, that marriage is constituted by consent alone, declared by the parties per verba de presenti, either by writing or in the presence of witnesses, the following authors were cited r—Stair's Inst. B. i. tit, 4, § 6—Bankton's Inst. B. 4, tit. 45, § 45, 48—Ersk. Inst. B. i. tit. 6, § 1.

Mar. 23, 1785,

The Commissaries pronounced an interlocutor of this date, after ordering the judicial declaration of both parties:

“Having resumed consideration of the cause with the declarations emitted by the parties, in respect it appears that the defender, when arrived at an age when, by the law of Scotland, she was deemed capable of consent, voluntarily and deliberately granted to the pursuer, the declaration libelled on, and received from him a counter declaration of the same import; find the mutual obligations relevant to infer marriage between the parties; find the pursuer and defender married persons accordingly, and decern.”

The case having been brought by advocation to the Court of Session, the Lord Ordinary refused the bill, on reclaiming petition the Court adhered.

Against these interlocutors the present appeal was brought.

Pleaded for the Appellant.—There is no authority in law

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for holding that any private writing, supposing consent de presenti intended, ipso facto makes marriage. There is no precedent for any such doctrine. Consent is by itself only a step; but, in order to constitute marriage by it, something more must follow. Subscribing two lines bearing that she takes a man for her husband, or a man declaring that he takes a certain woman for his wife, by a like writing, is not marriage by the mere act of writing, if nothing follows; because such a writing can in no view be that deliberate de presenti consent which the law requires; and most assuredly it is not every declaration of consent de presenti that will make a marriage. Such consent must be serious—must be solemn and deliberate. There is no evidence of this nature in granting this acknowledgment. Nothing but levity, foolishness, and want of consideration appear. Artful contrivance it was on his part; unreflecting foolishness on the part of the female. She repents this foolish affair in two days, burns her own copy, demands back the lines which he held—a circumstance which is decisive at once that such consent, if any existed, was not serious or solemn, but given rashly, and retracted immediately. Had such consent been solemn, and had the parties by that act been married, they would not have lived apart. The appellant would not have refused, as she did, to proceed any farther to consummate it, and he would not have acted altogether inconsistent with the notion of a marriage already existing. But even supposing any thing was meant by this foolish letter, it was no more than a promise or declaration of intention to marry at some future period. That such was the meaning of the document is demonstrated by his whole subsequent acts—his repeated solicitations to have the marriage celebrated, and his twice attempting to have celebration of banns. Holding it therefore only as a promise, on which no copula and no consummation having followed, it was not sufficient to constitute marriage by the law of Scotland.

Pleaded for the Respondent.—Marriage is a consensual contract, which is perfected by consent alone, cohabitation or consummation not being essential, but only a concomitant or consequence of the constitution of marriage. Consummation is not the primary aim and condition of marriage, it is only an accessory. And though parties, who from accident or natural causes, are incapable of consummation, may insist on setting aside the marriage, yet this is not because such consummation is essential to the constitution of

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the contract, but only that one of them is not able to perform the obligations incumbent upon him; but it is no good reason for annulling complete consent and vacating the contract, where both parties are able to fulfil it, because one of them refuses to do so. Celebration therefore being unnecessary, and consent having been here given, the question is, whether the written acknowledgment is complete evidence of that consent de presenti. Now really the writing here is so plain and simple in meaning, as to render it impossible for any one to mistake its import. It is clearly a de presenti consent. Added to this, there is a strong circumstantial evidence of a copula having followed, because, in the general case, such acknowledgments are usually granted only to give a legal sanction and colour to such a connection. The writing therefore was given as a solemn consent to de presenti marriage, and every thing in the relation of man and wife would have followed, had it not been for the injudicious interference of her friends. Her affections were already his; and her own and the future happiness of the respondent rest on the decree of the Court of Session being affirmed.

After hearing counsel, it was

“Declared that the two letters insisted upon in this process, dated the 16th day of Feb. 1779, signed by the said Patrick Taylor and Agnes Kello, respectively and mutually exchanged, were not intended by either, or understood by the other, as a final agreement; nor was it so intended or understood, that they had thereby contracted the state of matrimony, or the relation of husband and wife, at and from the date thereof; on the contrary, it was expressly agreed, that the same should be delivered up, if the purpose they were calculated to serve proved unattainable, whenever such delivery should be demanded, which last mentioned agreement is further proved by the whole and uniform subsequent conduct of both parties. Therefore ordered and adjudged that the interlocutors complained of be reversed, and that the Court of Session do remit the cause to the Commissaries with instructions to assoilzie from the declarator of marriage.”

Counsel: For the Appellant, Ar. Macdonald, Rob. Dundas.
For the Respondent, Jas. Boswell, C. Hay, Wm. Adam.

Note.—Unreported in Court of Session.

 1787

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