The facts were these: A, an officer, eloped with B, the wife of an apothecary. After three years B's husband died. A and B continued to cohabit for twenty-two years, moved in good society, and were universally reputed to be married. It was held that they must be presumed to have exchanged matrimonial consent after the death of B's husband.

In a later case, an illicit connection was held to have been converted into marriage.

A formed an illicit connection with B in London. Subsequently they went to Glasgow, and there cohabited for a year and a-half. A then introduced B to his family, and acknowledged her as his wife. They afterwards separated, and lived in America separately for thirty years, B reassuming her maiden name. It was held that marriage had been constituted in Glasgow.1

The Presumption in England.-In England marriage may be proved by reputation.2 But either a religious ceremony or acknowledgment before a registrar is there essential to the constitution of marriage. The presumption, therefore, from cohabitation and repute will not suffice, unless from lapse of time or other cause the absence of any record of the ceremony is explainable.

1 Hill v. Hibbit, 1870, 25 L.T. 183. 2 See Read v. Passer, 1794, 1 Esp.

212; Collins v. Bishop, 1878, 48 L.J., Ch. 31; Fr. i. 396.

CHAPTER IV.

OF PROMISE, SUBSEQUENTE COPULA.

IF a woman prove, by a man's writ or oath, that he promised to marry her, and satisfy the Court by this or other evidence that, on the faith of the promise, she allowed him to have sexual intercourse with her, marriage will be held established from the date of the copula. It has never been authoritatively decided that the action is incompetent at the instance of the man. The absence of precedent makes it, however, almost certain that such an action would not now be entertained. Nor is there the same natural presumption that a man in consenting to copula, does so only on condition of marriage.

This doctrine rests on a presumption or fiction that when two persons have promised to marry each other, a subsequent copula is regarded by them as the fulfilment of the promise.

Nature of Proof required.-Precise and specific words of promise are not essential. In many cases the Court has inferred from the tenor of a correspondence, taken as a whole, that promise must have been interchanged. But the mere fact that the letters are amatory in tone is not enough. For two persons may so correspond without any matrimonial intention. The age, rank in life, actings, and admissions of the parties will all be taken into account in construing a correspondence of doubtful import.

Proof must be found in the Writing if Promise be not Admitted. It will not be inferred from the fact that the

1 Stair, i. 4, 6; Ersk. i. 6, 4. 2 Campbell v. Honyman, 1831, 2 Dow and Clarke, 265, and 5 Wilson and Shaw, 92; Yelverton v. Long

worth, 1864, 4 Macq. at p. 856; Morrison v. Dobson, 1869, 8 M. at p. 353, per Lord Ardmillan.

parties were reputed to be engaged. But this fact may be taken into account in construing doubtful expressions.1

Writing need not be holograph or tested. If the writ founded on be not in the defender's own hand, but merely signed by him, the onus lies on the pursuer to show that he appended his signature to it. For otherwise, as pointed out by Lord Mackenzie, a woman finding a man's signature on a blank piece of paper, might write over it a promise of marriage.2

Promise not to be inferred merely from conduct. In one case, a man admitted that he had showed a woman a passage in a Bible, 1 Cor. vii., relating to marriage, and also the scheme of a widows' fund, to which he was a contributor. From these facts, in connection with the circumstances of the case, the Court inferred that he had promised marriage.3 this case has never been followed.

But

Promise proved by Proclamation of Banns.-Lord Fraser says that promise will be inferred from the parties agreeing to have banns proclaimed. But this seems very doubtful, and the case of Sawers v. Forrest,5 on which he relies, cannot be considered as an authority. There was, in that case, no proof of copula after the proclamation.

It is not necessary to prove the precise time and place of the Promise."

Conditional Promises.-Where a man has promised to marry a woman, subject to the fulfilment of a condition, as, e.g., after the lapse of a certain length of time, and there is subsequent copula, it will be presumed that he agreed to waive the condition, and marriage will be held constituted. But this presumption may be rebutted. And when the terms. of the promise itself imply that the copula is to take place

1 Campbell v. Honyman, supra; Ross v. M'Leod, 1861, 23 D. 972, esp. per L. P. M'Neill at p. 981; and see Monteith v. Robb, 1844, 6 D. 934. 2 Mackenzie v. Stewart, 1848, 10 D. 638.

3 Stewart v. Lindsay, 8th July,

1818; Hume's Decisions, 380.

4 Fr. i. 377.

5 1st August, 1786, Arniston Collection Sess. Pap., Advocates' Library, vol. clxxii.

6 Campbell v. Honyman, supra.

CONDITIONAL PROMISE.

27

first, and marriage to be constituted later, on the happening of some further event, there is no room for the presumption that the condition has been abandoned.1

Promise conditional on Pregnancy.-If the promise be to marry the woman if she conceives, the fact that copula followed will not be a ground of declarator of marriage. For, ex necessitate rei, the marriage was to be after the copula. The rule is thus expressed by Lord Chancellor Cottenham. "Consent de præsenti is essential to marriage, and marriages established upon a promise, cum subsequente copula, are so established upon a fiction that the consent de præsenti was mutually given by the parties in consequence of the anterior promise; but if the promise be conditional upon the happening of a future event, there is no room for any such fiction, the copula cannot be the perfection or consummation of the prior contract."2

When Promise proved, copula presumed to be on faith thereof. In general, if the promise be established, it will be presumed that it was in reliance upon it that the woman consented to the copula. But this presumption may be rebutted. The woman may prove that she did not intend marriage, or the man may show that the copula was unconnected with the promise. E.g., A promises to marry B. Copula followed. On evidence that B, in allowing this to take place, had no intention of consenting to marriage, and was, both then and afterwards, unwilling to accept A as her husband, it was held that marriage had not been constituted.3

If there has been copula prior to the Promise, the onus lies on the Pursuer to show that a subsequent copula was on the faith of the Promise. When the woman is already

1 M'Intosh v. Shillinglaw, 6th March, 1829; 1 Jurist, 135. An American case affords a good illustration. A and B enter into an antenuptial contract. Subsequently they cohabit. The evidence shows that they all along contemplated going through a ceremony of marriage. Marriage not established, because no present consent, Peck v. P., Amer. Rep., 34, 702; Fr. i. 381.

2 Stewart v. Menzies, 1841, 2 Rob., at p. 590; Kennedy v. M'Dowall, 1794, Ferg. Con. Law Rep. 163.

3 Morrison v. Dobson, 1869, 8 M. 347.

4 Craigie v. Hoggan, 1838, 16 S. 584, Aff., M'L. and Rob. 942; Ross v. M'Leod, 1861, 23 D. at p. 994; Surtees v. Wotherspoon, 1873, 11 M., at p. 389; Sim v. Miles, 1829, 8 S. 89.

the man's mistress at the date of the promise, there is no presumption that she, in continuing to be so, is relying on the promise. But she may prove that this was the fact. Lord Ardmillan figures the case of the woman being seized with repentance, and declining to continue the intercourse, except on receiving a promise of marriage. In such circumstances, marriage would be constituted.1

If the Woman, in consenting to the copula, relied on the Promise, it is immaterial that she was ignorant that this would make Marriage.2

3

Must Promise and copula both take place in Scotland? This question is answered by Lord Fraser in the affirmative, and is supported by several dicta in the Yelverton case. In the same case, Lord Westbury doubts if it would be any bar to the constitution of marriage in this way, that there had been copula in England, if copula in Scotland followed. But it is submitted that the question is still open. It must be borne in mind that, in the Yelverton case, the first copula was in Ireland. By the law of that country, as of England, marriage is not constituted by promise subsequente copula. It is, therefore, consistent with principle to hold that the contract, not having been made in a form which satisfied the requirements of the lex loci, marriage was not thereby made. But it is thought that a different result ought to be reached if the promise and the copula occurred in a country where this is a valid mode of marriage-e.g., some of the American States. Nor would it affect the matter that the promise was given in Scotland and the copula followed in a country, by the law of which, promise cum copula subsequente makes marriage. In either case, if the domicile of the parties is in Scotland, the conditions of both the lex domicilii and the lex fori seem to have been complied with, and it is

1 Surtees, supra; Sim v. Miles, supra, per Lord Glenlee, at p. 98.

2 Laing v. Reed, 1823, 1 Sh. App., per Eldon, L.C., at p. 451; Longworth v. Yelverton, supra, per West

bury, L.C., at pp. 854 and 855.

3 See Lord Chelmsford, 4 Macq. 879; Lord Kingsdown, 4 Macq. 902.