COUNSEL: Sir John Holker, Q.C., Mr. W. A. Lindsay, and Mr. Badenoch Nicolson, appeared for William John Manners (Earl of Dysart). [*497] Mr. Shiress Will was counsel for the Petitioner, styling herself Elizabeth Dowager Lady Huntingtower.

Sir Henry James, A.G., The Lord Advocate (Right Hon. J. M’Laren, Q.C.), The Solicitor-General for Scotland (Mr. J. B. Balfour, Q.C.), and Mr. Crawford, appeared for the Crown.

 

AGENTS: Agent for Petitioner, Elizabeth, styling herself Dowager Lady Huntingtower: Hermann H. Myer.

Agents for Petitioner, William John Manners, Earl of Dysart: J. A. Bertram & Edward Walmsley.

 

JUDGES: Lord Selborne, L.C., Lord Blackburn, and Lord Watson.

 

DATES: July 30, Aug. 3, 1880, and Jan. 21, 24, 25, Feb. 7, 21, 22, 1881.

Feb. 21 and March 7, 1881.

 

 

Held, that William John Manners had made out, and established, his right to the dignities of Earl of Dysart and Lord Huntingtower in the peerage of Scotland.

 

Irregular Scotch Marriage – Habit and Repute – Mutual Consent de præsenti before Witnesses.

 

The law of Scotland accepts the continued cohabitation of a man and woman as spouses, coupled with the general repute of their being married persons, as complete evidence of their having deliberately consented to marry; but in order to sustain that inference their cohabitation must be within the realm of Scotland.

 

Cohabitation outside Scotland will not constitute marriage, although it may be competently founded on, either as corroborative evidence of a ceremony in Scotland, or as evidence that a ceremony proved to have taken place in Scotland was truly intended by the parties as a present interchange of matrimonial consent.

 

A. alleged that she was lawfully married to B. by interchange of mutual consent de præsenti before witnesses in 1844 in Scotland, and that having remained in Scotland for about a month, B. and she cohabited at divers places in England as husband and wile, and that a son now living was born of the marriage in 1863.

 

Between 1844 and 1849, when B. deserted A., three daughters were born, one of whom B. registered as legitimate. In 1851 B. married C. at a parish church in England and had children. A. was informed of this marriage shortly after its celebration, but took no steps to have the validity of the averred irregular Scotch marriage of 1844, or the nullity of the marriage of 1851, judicially declared, until 1880. The alleged witnesses to A.’s marriage were admitted now to be dead, but they were alive in 1853, when they might have been judicially examined in an action brought against B. for the board and lodging of A.:

 

Held, that the evidence completely disproved the allegation of a marriage between A. and B.

 

Evidence – Admissibility of Statements not on Oath of deceased Person – Statements post litem motam – Statutes 15 & 16 Vict. c. 27; 16 & 17 Vict. c. 20; and 37 & 38 Vict. c. 64.

 

B. married C. in facie ecclesiæ in 1851, had issue, and died in 1872. In an attempt by A. to set up a previous irregular Scotch marriage, a witness [*490] gave evidence that B. told him repeatedly after 1851 that A. was his wife and not C.:–

 

Held, that such evidence was not admissible.

 

Effect of the statute 37 & 38 Vict. c. 64 (1874) held not necessary to decide.

 

Precognitions – Admissibility of.

 

In an attempt on the part of A. to set up an irregular marriage according to the law of Scotland between herself and B., statements prepared by D., the Plaintiff, in an action against B. as the alleged husband of A. for A.’s board and lodgings; which statement were signed – and in one case corrected by interlineations – by deceased persons who, if alive, would have been competent witnesses, were sought to be used as evidence:–

 

Held, that they were not admissible.

 

LIONEL WILLIAM JOHN, 6th Earl of Dysart, died on the 23rd of September, 1878. His only son William Lionel Felix,Lord Huntingtower, predeceased him on the 21st of December, 1872. Lord Huntingtower married on the 26th of September, 1851, at East Horrington church in the parish of St. Cuthbert Wells, county Somerset, his cousin Katherine Elizabeth Camilla,daughter of Sir Joseph Burke, Bart. Of that marriage there has been born, three daughters and one son. The son, William John Manners, on his father’s death, assumed the courtesy title of Lord Huntingtower, which he bore until the death of his grandfather, after which date he answered to the title of Earl of Dysart, and exercised as said earl the right to vote at the nomination and election of peers of Scotland to vote in Parliament. But being desirous that the allegations of one Elizabeth Acford, calling herself the widow of the late Lord Huntingtower, should be set at rest, he presented this petition to Her Majesty, praying Her Majesty to be graciously pleased to admit the Petitioner’s succession to, and to declare that he is of right entitled to, the titles, honours, and dignities of Earl of Dysart and Lord Huntingtowerin the peerage of Scotland. That petition was referred by Her Majesty in July, 1880, to the House of Lords, and by that House to this Committee.

 

On the 3rd of August, 1880, a petition was presented to the House by a lady styling herself Elizabeth Dowager Lady Huntingtower, praying that counsel might be assigned her, and that she might be allowed to appear and be heard on behalf of her infant son, Albert Edwin, in opposition to the claims of William John [*491] Manners as Earl of Dysart and Lord Huntingtower. She was ordered to lodge a printed case, and counsel and agents were assigned to her. She accordingly lodged a printed case and led evidence in support of it. She averred in her case that (1.) she, “in the month of July, 1844, and at Grecian Cottage, Trinity,near Edinburgh, in Scotland, and by interchange of mutual matrimonial consent, per verba de præsenti, was lawfully married, according to the law of Scotland,, to the late William Lionel Felix, Lord Huntingtower; (2.) that afterwards she “and the said Lord Huntingtowercohabited together as husband and wife, and were habite and repute husband and wife;” (3.) that her “infant son Albert Edwin Tollemache, being the only surviving son of the said marriage, is the person entitled” to the titles, honours, and dignities in question.

 

Her case, inter alia, also stated that she was the daughter of Henry Acford, a freeman of the town of Bideford, Devonshire. But owing to a serious accident which befel her father, rendering him a cripple for life, she was compelled to earn her own livelihood. In 1843 she was in the service of the Rev. C. W. Scarth,at Bathwick Rectory, Bath, as housekeeper. Near the end of 1843, she had given notice to leave, when she received a letter purporting to come from Lady Dysart, who had often called to see the Rev. Mr. Scarth at the rectory, asking her to go to a certain house in reference to a situation as lady’s maid and companion to Lady Dysart. She accordingly went to the house directed, and there saw a gentleman who told her he was to engage her on the part of Lady Dysart, that Lady Dysart knew her and did not require any recommendation, that she was to go to a house at Southstoke, a residence about five miles from Bath, and engage servants; and that Lady Dysart intended to reside there as soon as the servants were engaged. Lady Dysart did not appear, but Lord Huntingtower visited the house, and after a time one evening came to her sitting-room and took hold of her hands saying he was madly in love with her, and that he would marry her at the parish church. She told him she was engaged, and succeeded in getting away from him. A few nights afterwards she alleged Lord Huntingtower burst open her bedroom door, which was locked, and after a very violent struggle, in which she [*492] was much injured about her person, he had connection with her by force and against her will. She was very ill, and Lord Huntingtowertold her that if she would go to London he would marry her at a registrar’s office, and to this, after some hesitation, she consented.

 

Lord Huntingtower went to London, and wrote to her begging her to follow him to be married to him. She went, and slept one night alone at the London Bridge Hotel under the name of Miss Acford.

 

Next day she went to some rooms in Berkeley Street. The Petitioner was so ill that she was ordered to go back to her father’s house in Devonshire. She accordingly left London for her father’s home and remained there three or four weeks; whilst there, Lord Huntingtower wrote to her most affectionate letters, imploring her to return and that the marriage should be carried out. She returned to London about February, 1844, and from there Lord Huntingtower – she still being very ill – took her to Hayling Island, and they both stayed at Crosse’s Hotel. After some days Lord Huntingtower took a furnished house, and they went there. She became much worse in health, and Lord Huntingtowerwanted to obtain a special license, but she was too ill to go through the ceremony. After a time she and Lord Huntingtowerreturned to London and remained a fortnight at Middletonor Maryland Square. She was obliged again to leave Londonand go back to her father’s. There she remained till June, 1844, during this time she received letters from Lord Huntingtowerurging her to return to London, and promising that if she did he would take her to Scotland and make her his wife. Relying on these promises she again came to London, and was taken by a Mr. Kenrick, a friend of Lord Huntingtower, to his own house, to meet Lord Huntingtower. Mrs. Kenrick, afterwards Mrs. Steggall, received her. Apartments were taken for her in Trevor Squareand the Scotch marriage was frequently discussed. Lord Huntingtoweroften at this time discussing with Mr. Kenrick the subject of Scotch marriage. Lord Huntingtower then went to Scotland to arrange about his marriage with the Petitioner. After some days Lord Huntingtower returned to London, and pressed the Petitioner to go along with him to Scotland, where [*493] he stated he had ascertained they could be married without ceremony. The Petitioner refused to go with him, but agreed to follow him. Lord Huntingtower then went to Scotland, and it was distinctly understood before he left that the purpose of his going to Scotland was to make arrangements there to receive the Petitioner and to marry her there and to make her his lawful wife in such way as the law of Scotland allowed.

 

The Petitioner after hearing from Lord Huntingtower left by steamer from Blackwall, Mr. and Mrs. Kenrick seeing her off, whence she arrived at Granton, near Edinburgh. Lord Huntingtower’s man servant, Frederick Spicer, met her with a carriage and drove direct to a house called the Grecian Cottage, Trinity, near Edinburgh. Lord Huntingtower received the Petitioner on the lawn, they then went inside the cottage, Lord Huntingtowercalled in Spicer, and told him he wanted him as a witness. Lord Huntingtower then, in Spicer’s presence, laid his hand on the Petitioner’s shoulder and declared and acknowledged her to be his lawful wife, and present matrimonial consent was there interchanged and expressed between the Petitioner and Lord Huntingtower. The Petitioner thereupon believed that she was then lawfully married according to the law of Scotland. Lord Huntingtowerintended her to believe and also himself believed that the Petitioner then became his lawful wife. Afterwards, on the same day, Lord Huntingtower placed on the Petitioner’s finger a wedding ring. At the time of the said declaration Spicer was the only servant in the house, but a female servant named Margaret Ritchie – afterwards Mrs. Bremner – came on the following morning. A few days after a letter was received from Lady Dysart, to whom Lord Huntingtower had written stating that he had taken the Petitioner to Scotland and the purpose for which he had taken her there. In that letter Lady Dysart called him a fool, and stated that he could never marry again, and must ever afterwards call the Petitioner his wife. Lord Huntingtower read a portion of this letter to the two servants Spicer and Ritchie, and again declared and acknowledged the Petitioner to be his wife, in the Petitioner’s presence and with her consent.

 

The case also stated that Lord Huntingtower said to a policeman named Horne that the Petitioner knew but little of Scotland as [*494] she was on her marriage tour. They remained at Grecian Cottagefrom three to four weeks. From there they went to Newcastle-on-Tyne, and stayed at the hotel where the coach stopped. There they were known as Mr. and Mrs. Tollemache. On the following morning they drove to Tynemouth and stayed at the Bath Hotel.

 

Lord Huntingtower went on in advance to London, and the Petitioner followed him. While they were in London Lord Huntingtowergave a dinner at Greenwich in celebration of the marriage. There were six or eight persons present, including Lord Huntingtower, the Petitioner, and Mr. Kenrick.

 

“From the time of the marriage at Grecian Cottage, down to October, 1848, Lord Huntingtower and the Petitioner lived and cohabited together at divers places in England as husband and wife, and were recognised and treated as such by all those with whom they came in contact. Lord Huntingtower and the Petitioner generally went at those places by the name of Tollemacheor Talmash, and on one occasion by the name of Langford.”

 

The Petitioner’s first child was born on the 10th of September, 1845, and was registered by the Petitioner as the son of William Felix Lionel Tollemache and Elizabeth Tollemache, formerly Ackford.

 

Mrs. Toone, the mother of Lady Dysart, was very kind to the Petitioner until her death in 1848, and on one occasion sent her £50 sewn between the leaves of the Petitioner’s housebook.

 

The second child, a girl, was born at 4, Manor Street, Clapham. Lord Huntingtower himself registered this child as born in lawful wedlock. He signed himself “W. L. Talmash,” giving the mother’s name as Elizabeth Talmash, formerly Acford.

 

After this they lived at various places – Greenwich, at Walton-on-the-Naze, at Miss Pottle’s, Kennington Lane, Kennington, and at Camberwell, and subsequently at Mr. Cadman’s at Southend.

 

At Greenwich they were frequently visited by General Harrison, a Mr. Johnson, a barrister, a Captain Corty, and others. At Southenda third child, a girl, was born on the 14th of January, 1848. The father’s name was given as William Lionel Felix Talmash, Lord Huntingtower, and the mother’s as Elizabeth Talmash, formerly Ackford. The Petitioner registered this child herself.

 

At Southend there was a quarrel between them, and Lord Huntingtower, [*495] she alleged, took away from her by force the letters she had received from him, including the letter received from Lady Dysart by Lord Huntingtower, these letters she believed he destroyed. He had previously put some of these letters in her hands telling her to keep them, for they contained facts relating to her marriage. From Southend, in February, 1848, they went to Miss Pottle’s, Kennington Lane, and from there went to various other places, Lord Huntingtower being pressed for money. Eventually, in August, 1848, they returned to Miss Pottle. In October of that year Lord Huntingtower took possession by force of another parcel of letters which he had written to her as his wife, and which also related to their marriage in Scotland. He then deserted her.

 

Miss Pottle brought an action against Lord Huntingtower in the Bromley Court for the Petitioner’s board and lodging, and recovered the amount claimed. The Petitioner believed she was subpoenaed, and gave evidence in the name of Huntingtower or Tollemache.

 

After this she and her children suffered great privations, and after a time she wrote to Lady Dysart, who replied that she must call herself by the name of Ackland, otherwise she would not correspond with her, or help her in any way. As she and her children were absolutely destitute she was obliged to conform to this request. Lady Dysart supported her for some time; but on her refusing to go abroad Lady Dysart ceased to give her any assistance whatever. She applied to the Lambeth guardians for assistance; they, by their solicitor, commenced proceedings against Lord Huntingtower, but the solicitor died and nothing further was done. In 1850, Mr. Jarrett, the relieving officer of Lambeth, took the Petitioner and her children to his own house and provided them with food and lodging for nearly two years. He brought an action in 1853 against Lord Huntingtower for their board and lodging. The Court refused to allow her to be a witness. Mr. Jarrett could not afford the means to bring forward witnesses from Scotland, and elsewhere, and the action was unsuccessful.

 

While the Petitioner lived at Mr. Jarrett’s she was informed for the first time of Lord Huntingtower’s marriage with his cousin, Miss Burke. After Jarrett’s action in 1853, the Petitioner called [*496] at Ham House, where she first saw Lord Huntingtower after his marriage with Miss Burke, and a painful scene ensued.

 

In 1854 Lord Huntingtower’s solicitor prepared a deed of covenant in which the Petitioner was described by her maiden name, Miss Acford, and as a single woman, and by which an annuity of £60 was paid to her, on the stipulation that all letters of Lord Huntingtower should be given up. The Petitioner signed this deed as she was in destitute circumstances, Lord Huntingtower at the same time assured her that she was his true wife, and that by her signing it she would not invalidate her marriage. In 1857 this deed was varied by an agreement which Lord Huntingtowerbrought with him to the Petitioner to sign. She signed this also in her maiden name.

 

After this agreement Lord Huntingtower placed the Petitioner’s two eldest daughters at Norwood. From that time Lord Huntingtower, as her husband, visited the Petitioner, and had intercourse with her from time to time. On the 4th of April, 1858, the Petitioner gave birth to a son, of whom Lord Huntingtower was the father. This child died the same year. In 1862 Lord Huntingtowerstill continued to visit her, and on the 15th of February, 1863, she gave birth to a son, Albert Edwin Tollemache, on whose behalf the peerage is now claimed, of which son Lord Huntingtowerwas the father.

 

The annuity was not paid with regularity, and in 1865 the Petitioner brought an action against Lord Huntingtower, at Maidstone, to recover a part of it, and Lord Huntingtower pleaded that the Petitioner was his wife, and the verdict passed for the Defendant on that plea. The solicitor for the Petitioner ultimately effected a compromise of the matter, and the amount sued for was paid. At various times from 1862, Lord Huntingtower urged the Petitioner to institute proceedings for a divorce from him, on the ground that he was living in open adultery. At this time Lord Huntingtower had left the lady he married in 1851, and was living with a woman of the name of Dibble.

 

July 30, Aug. 3, 1880, and Jan. 21, 24, 25, Feb. 7, 21, 22, 1881. Sir John Holker, Q.C., Mr. W. A. Lindsay, and Mr. Badenoch Nicolson, appeared for William John Manners (Earl of Dysart). [*497] Mr. Shiress Will was counsel for the Petitioner, styling herself Elizabeth Dowager Lady Huntingtower.

 

Sir Henry James, A.G., The Lord Advocate (Right Hon. J. M’Laren, Q.C.), The Solicitor-General for Scotland (Mr. J. B. Balfour, Q.C.), and Mr. Crawford, appeared for the Crown.

 

On the 21st, 24th, and 25th of January, 1881, the Petitioner, claiming to be the widow of the late Lord Huntingtower, was examined.

 

Her examination in chief and her admissions and contradictions in cross-examination, will be found fully set out in the opinions of the Law Peers (1).

 

General Harrison said he was introduced to the Petitioner in 1847, as Mrs. Tollemache. Lord Huntingtower, with whom he was most intimate, told him, one day they were speaking about committing rapes, that “he had the greatest fight with this Lizzie of his to take her, and that he should not have succeeded if he had not promised to marry her, and to quiet the matter up he took her into Scotland for that purpose.”

 

Mrs. Steggall, formerly Mrs. Kenrick, said, that the first time she saw the Petitioner Lord Huntingtower introduced her as his wife, saying “We have only been married in the country two or three days before I came up to London,” and she never remembered Lord Huntingtower speaking about Scotland, but she admitted her memory was very bad; and the Lords refused to allow her to refresh her memory by a letter written since this controversy arose.

 

It was admitted that Frederick Spicer was dead, but he was proved to have been alive and in communication with Jarrett about the time his action was brought against Lord Huntingtower.

 

A witness, first cousin to Lord Huntingtower, was about to give evidence that Lord Huntingtower between 1860 and 1864, had frequently told him that Acford was his wife and not Katherine Burke.

 

Sir John Holker objected to these statements being admitted, as they were not part of the res gestæ. They were statements not admissible, because they were made post litem motam, and made

 

(1) Post, p. 510 et seq. [*498]

 

by Lord Huntingtower tending to invalidate a marriage subsequently contracted by him in facie ecclesiæ, and to bastardize his issue. Hearsay evidence, as a general rule, was admitted by the law of Scotland, but precognitions were not: Graham v. Western Bank of Scotland (1) and Macdonald v. Union Bank (2), on the ground that they were not spontaneous and therefore could not be relied on. On the same principle he submitted that the statements of interested persons, or person, self discredited as setting up a prior marriage, should be excluded.

 

The Lord Advocate referred to the Acts 16 & 17 Vict. c. 20, and 37 & 38 vict. c. 64, as shewing that until 1874 a party to a matrimonial cause could not be examined as a witness in Scotland. A person who had contracted a marriage in facie ecclesiæ was not by the law of Scotland allowed to prove a previous irregular marriage; the only case in which hearsay evidence of a statement by a deceased spouse as to a marriage having taken place had been received was in Steuart v. Robertson (3).

 

He contended that the only effect of the Act 37 & 38 Vict. c. 64 (1874), was to enable the Court to receive direct such statements of the spouses as they could previously have received through the medium of other persons, and that it could not have been intended to permit a person to disclaim a lawful marriage by giving evidence of a prior marriage per verba de præsenti.

 

Mr. Shiress Will contended that the whole conduct of the parties alleged to have been married, including their letters and statements, were admissible in support of a marriage per verba de præsenti. Although in Longworth v. Yelverton (4) hearsay evidence of a statement of the alleged husband had been tendered after his death and rejected, it had not been rejected upon the grounds upon which the present objection was rested. Assuming the alleged marriage to have taken place, the fact of Lord Huntingtower having gone through another ceremony of marriage afterwards could not deprive the person whom he had previously married of the benefit of any statements he afterwards made,

 

(1) Court of Sess. Cas. 1st Series, vol. iii. p. 617.

 

(2) Court of Sess. Cas. 3rd Series, vol. ii. p. 963.

 

(3) Law Rep. 2 H. L., Sc. 494.

 

(4) Law Rep. 1 H. L., Sc. 218. [*499]

 

tending to prove the previous marriage. The only effect of the Act 37 & 38 Vict. c. 64, was to make the evidence of one of the parties admissible in an action arising in consequence of a divorce.

 

The Law Peers delivered the following opinions upon this point:–

 

1881. Feb. 7. LORD SELBORNE, L.C.:–

 

We consider this evidence to be inadmissible. We have admitted the res gestæ between the parties, upon the principle that whatever actually took place between them ought to be considered. If Lord Huntingtower, at the time when these alleged declarations were made, would have been a competent witness by the law of Scotland, then the rule of the law of Scotland might have come in, which admits proof of the statements, not on oath, of a competent witness after his death. But during the whole of his lifetime Lord Huntingtower was an incompetent witness. The cases to which Sir John Holker has referred with regard to precognitions, shew, that even when a man might have been a competent witness, and when hearsay evidence as to a deceased person might be admitted, still the Courts are on their guard against extending the application of that which is, after all, an exception to general rules, to new cases, where the declarations sought to be proved have been made under circumstances tending to deprive them of the weight of spontaneous and voluntary declarations. I do not say more about it, because it may be that we may have to hear more upon the question of precognitions afterwards (1).

 

Then, Lord Huntingtower not having been a competent witness, the only question which remains is whether, that being so, he could bind the parties to this proceeding, and create evidence against them, by his admissions made at the time when they are said to have been made, that is, after the status and interest, whatever it be, of these parties had come into existence by a solemn and formal marriage contracted with Miss Burke by Lord Huntingtower in the face of the Church. Now it is beyond controversy that if such admissions had been actually made by Lord Huntingtower on record judicially they would not have been

 

(1) See p. 507. [*500]

 

received. Admissions made elsewhere under such circumstances, though they might have been evidence against himself upon principles which have been acted upon in a great number of cases, cannot possibly be evidence to disprove the validity of the marriage with Miss Burke contracted in the face of the Church, or to destroy the legitimacy of her children. It is not Lord Huntingtower that we are dealing with now, but another person. It appears to me that the principle upon which we should reject such admissions by a man who is not a party to the suit, is one of which we have many familiar instances in the law, which must be common to England and to Scotland. It was only the other day that the Court of Appeal in England were dealing with a case of mortgage in which the mortgagor had assigned his interest in the equity of redemption, and it was attempted to prove payments of interest on account antecedently to that assignment, by admissions of the mortgagee, made afterwards. They were held to be inadmissible, because for this purpose his interest had passed to a stranger, who could not be affected by his admissions.

 

No authority whatever has been cited for the admission of this evidence, and in my judgment it would be of dangerous example if it were allowed.

 

LORD BLACKBURN:–

 

I am of the same opinion. I do not wish to decide anything more than the exact point that is now raised before us, namely, whether this statement made by Lord Huntingtower, who died before 1874, is admissible in this case. I say nothing whatever about its weight. My conclusion is that it is not admissible; and if Lord Huntingtower had been the most immaculate and thorough gentleman, whose word every one would have believed as a matter of course, my conclusion would have been exactly the same, and I should still have said that the rule of law required that this evidence should not be received. Of course its weight when received is a different question altogether.

 

The first thing that I think should be considered is, what is the nature of the proceeding in which this is tendered as evidence. This is not a suit in which Lord Huntingtower is a party. This is a proceeding which Her Majesty has sent to the House of [*501] Lords, an inquiry as to who is entitled to the peerage; and the House of Lords has referred it to the Committee for Privileges, who are now to decide who is entitled to the peerage. The evidence which has been given establishes that Lord Huntingtowerif he had lived would have been Earl of Dysart (at least I take it for granted that that is established for the purpose of the present point), and that he did openly, in the presence of every one, marry in the face of the Church, in the year 1851, a lady, and was the father of one claimant to the peerage. An opposite claim is set up, the allegation being that that marriage is void because at the time of that marriage Lord Huntingtower was incapable of contracting matrimony, as he had a wife then alive; and no doubt if that was proved, it would be a very good answer to the claim. But that is not a question to which Lord Huntingtower is a party. The question whether either, and if one, which, of the two claimants is entitled to the peerage, is a question which I think probably in strictness and accuracy may be said to be a question between the Crown and this House, and the two claimants; but it certainly is not a question in which Lord Huntingtowershould be considered a party to the cause. That disposes at once of a great many of the cases in which the statements of a person, whether alive or dead, who is a party, or whose representatives are parties, to the cause, are admissible in evidence. There, what he said, whether alive or dead, as against his interest, is admissible as against him, as being his admission. Nothing that Lord Huntingtower said could be admissible upon that ground, if he was not a party.

 

Then there is another view in which a great many admissions and statements may be admissible, and it is this. Evidence has been given (its weight has hereafter to be considered) that Lord Huntingtower and the lady, Miss Acford, went to Scotland; and there has been evidence given that what constituted a marriage by the law of Scotland, by words of contract per verba de præsenti, did take place there and then. Whether that evidence is reliable or not, and whether it is contradicted by other evidence or not, are not questions that we have now to discuss. It is enough to say that the evidence was given. Then I take it, that both upon common sense, and upon all the authorities, where there [*502] has been such evidence given, and you are to see whether or no it is true, you look at what the parties did; what is technically called the res gestæ, viz., their conduct at the time, their conduct before, their conduct afterwards, and all that they may do and say, as tending to shew that they did really enter into this contract, or as tending, on the other side, to shew that they did not enter into this contract. Whether habit and repute might constitute a marriage in Scotland I do not pretend to say with accuracy; but that question does not arise here, because the parties left Scotland almost immediately afterwards, and returned to England. Habit and repute in England could not form a marriage, but it might throw great light upon what took place before. In some cases it would be weighty evidence, in others it would not. But upon that ground the statements of Lord Huntingtower, though not a party to the cause, yet being one of the alleged marrying parties, would, whether he was alive or dead (his death makes no difference upon this) be admissible whenever they were part of the res gestæ, and part of what would tend to shew that his conduct before or after, was such as to affirm, or disaffirm, the alleged contract that was said to constitute a marriage in Scotland.

 

Now, upon that ground, a great many things are admissible. They are not the less admissible because he is dead, but they are not the more admissible on that ground. The course taken here has been, that when there has been any doubt as to whether matters might have been admissible under that head, they were received de bene esse. Many of them will no doubt be received, but some there may be a question about; it will be considered hereafter which of them are admissible and which of them are not. But this present case cannot come under that head, for this reason: that Lord Huntingtower did, in the year 1851, marry openly, in the face of everybody, a lady in England; he made there the most positive assertion that a man could make that he was an unmarried person; and whatever he may have done since that in declarations to other people as to whether he was married before, or whether he was not married before, can never be received as part of the res gestæ, tending to prove or disprove, affirm or disaffirm, the previous evidence of a marriage in Scotland. They cannot be received on that ground. They must rest entirely upon the ground [*503] that Lord Huntingtower said so, and that he is to be believed or that he is not to be believed, as the case may be. All that I have hitherto said applies equally both as to the law of Englandand the law of Scotland. When there comes a decided difference between the laws of evidence as administered in England and the laws of evidence as administered in Scotland, this being a question of a Scotch marriage, I take it that we are a Scotch Court and that we ought to follow the Scotch law of evidence. In Englandhearsay evidence, that is to say the evidence of a man who is not produced in Court and who therefore cannot be cross-examined, as a general rule is not admissible at all. To that there are several exceptions, one of which is that in cases of pedigree where you prove that a deceased member of a family had made a statement that the state of the family was so and so, for convenience’ sake and from the impossibility of proving relationship otherwise, such a statement is admissible as an exception from the general rule excluding hearsay evidence. But upon that exception is grafted another, – that the statement made must have been made before the controversy arose; not that this proved that the statement was false, but that it took away the strong primä facie presumption that the deceased party would speak, to the best of his belief, what was true about the family. The rule, if we had been dealing with the law of England here, would not have admitted what was stated after the year 1851 by Lord Huntingtower; for, though he was a relative, and the relative of all others who perhaps knew most about it, it was clear that his statement was post litem motam, after the time he had married another wife; and if this statement was true, he had two wives. That would clearly not have been admissible in England, but the law of Scotland has never adopted that principle of the law of England. The law of Scotlandis this, as I understand it, and I quote here from what Lord Benholmesaid in one of these cases (1): “You must produce the best evidence that can be got, and when a witness is alive you must call the witness.” I am putting aside admissions which are evidence per se, because made by a party to the action. If you shew that a witness is dead, then as a general rule in Scotland, I take it, you may prove what he said as bearing upon and proving distinctly a fact.

 

(1) Macdonald v. Union Bank, Court of Sess. Cas. 3rd series, vol. ii. at p. 970. [*504]

 

There must always be a good deal of caution and consideration about whether the evidence of a deceased man was proving a fact, or whether it was some general rambling, vague statement. It is only facts that lay within his own knowledge that could be proved in that way; but the dead man’s statement of what he could have proved if called as a witness, would as a general rule be, valeat quantum, admissible. I take that to be the general rule. I will not inquire into the cases which have been cited to prove the exception, by which a precognition, as it is called, is held not to be admissible, because that question is not yet raised, and I think it is not desirable to decide or express an opinion upon a question of that sort, until it is actually raised and necessary to be decided. But there is this question now distinctly raised: Can what Lord Huntingtower said after the year 1851, when, as it seems to me, he not being a party his admission would not be evidence, and the time when he said it not being such as to make it part of the res gestæ which would throw light upon the truth or untruth, the accuracy or inaccuracy, the probability or improbability, of the statement which has been sworn to – that a marriage took place in Scotland – can what he said at that time be admissible? I think it cannot, upon this ground: If I am right in saying that by the law of Scotland it is received, because the witness being dead you could no longer call him, it would follow at once that you must shew that the man could have been called as a witness if alive. It is impossible to say that if a person said something, and could not himself, if alive, have been permitted to give testimony to prove it, he can, by dying, render that statement admissible. I think that is a self-evident proposition. Now at the time when Lord Huntingtower died, and of course, à fortiori, during the time when he lived, he could not be received by the law of Scotland as a witness in such a case as this. There had been a relaxation of the law of evidence by the Acts of 15 & 16 Vict. c. 27, and 16 & 17 Vict c. 20, by which the evidence of parties, and their agents, and persons interested, was admitted, but these statutes excepted the class of cases of which this is one, cases which related to the status of marriage, declarators of marriage, bastardizing of issue, and all that class of cases within which the present case falls. Now Lord Huntingtower never during his life, in such an action [*505] as that, could have been called as a witness. He died before the Act of 1874 was passed, and therefore we need not inquire what would have been the effect of it if he had survived. He died when he was incompetent to give evidence as a witness, and it seems to me to follow that if he could not have given evidence when alive, it cannot possibly be competent to give secondary evidence of what he would have said if his death had not prevented him. Taking that view of the case, and without deciding anything else, I think that the present evidence should be rejected.

 

LORD WATSON:–

 

My Lords, the question objected to was put for the avowed purpose of eliciting from the witness certain statements that were made to him in the years between 1860 and 1864, by the deceased Lord Huntingtower; and I am of opinion, with your Lordships, that that line of examination is not competent, and that the question should be disallowed.

 

My Lords, I do not think that the present question raises any controversy with regard to the law of hearsay evidence in Scotland. What I understand hearsay evidence to be is this: either the writing, or the verbal statement proved by a witness who heard it, of a person deceased, who, if alive would have been a competent witness in this proceeding. But seeing that Lord Huntingtowerdied before the year 1874, there is no pretence for saying that he ever was at any period a witness, who, according to the law of Scotland, would have been competent to be examined either for or against his own marriage with the Petitioner in the year 1844.

 

My Lords, the statements of one in his position would in the ordinary case have been provable according to the law of Scotland, notwithstanding that fact of his not being a competent witness, and those statements would have been as provable by third persons during his lifetime as after his death. But the only ground upon which these statements would have been admissible in evidence, as I understand the law, was this; that he was a party to the suit. Now what was meant by his being a party to the suit, was, that he was what we call in Scotland a party to the record, appearing either by himself, or what was the same thing, by his personal representatives, after his decease. Statements made by [*506] him were binding, and were received as statements against him, and those statements were received up to the period of the proof, according to the law of Scotland. The principle upon which such evidence was admitted was this. It was in his power when called as a Defender in an action for constitution of marriage, to admit the marriage upon record, and the Court thereupon gave decree at once. It was in his power at any time after he had stated a plea that he was not married, to withdraw from that plea and substitute a confession of marriage; and in ordinary circumstances where there was no impediment, he might do that down to the latest moment before judgment was given, because although in cases of divorce, the Courts of Scotland, from fear of collusion, do not permit a Defender to confess, that never was the rule in an action brought for the purpose of constituting a marriage.

 

But, my Lords, in this case Lord Huntingtower is not a party, and he could not have been a witness. Therefore his statement can neither be taken as secondary evidence of what as a witness he could have said, because as a witness he could have said nothing; nor can it be received as a statement of a party to the record, because he is not in that position; and even if he were, I should have been prepared to hold that his marriage in facieecclesiæ in the year 1851, which, according to the law of Scotland, conferred upon the issue of that marriage the status of legitimacy, at and from the period of their birth, was quite sufficient to make him liable to a personal exception from that date, whenever he came forward to make a statement either in his own suit or in that of others to the effect that he had been previously married.

 

Upon these grounds, either of which is to my mind quite sufficient, not only to justify, but to require, the rejection of such evidence, I agree with your Lordships.

 

Counsel were informed that this evidence could not be admitted.

 

Evidence was given which shewed that the policeman Peter Horne died about 1860. Mr. Shiress Will tendered in evidence a document, dated the 8th of November, 1851, the body of which had been proved to be in the handwriting of the man Jarrettwho brought the action against Lord Huntingtower in 1853, and the interlineations and signature of which were in the handwriting of Peter Horne. He stated that it contained a statement of [*507] matters which took place in 1844, of which Horne, if alive, would have been a competent witness.

 

Sir John Holker said he admitted that Peter Horne was dead, and that he did not dispute that the signature and interlineations were in his handwriting, but he objected to the reception of the document, being an ordinary precognition, and therefore not admissible.

 

Mr. Shiress Will submitted that it was not open to the objection which had caused the rejection of precognitions in the Scotch Courts, because the interlineations shewed that Horne had exercised his mind with regard to the verbal accuracy of the statement. He pointed out that Horne had altered the words “I went with Mr. T. from Edinburgh to Trinity” into “Mr. T. came to Granton County Police Station House;” that he had struck out “as his wife;” that he had inserted “tour or jant,” and also “it is impossible to recollect all;” shewing that he did not accept the statement as originally drawn up. This circumstance took it out of the category of precognitions.

 

As regards the admissibility of this document as evidence, the following opinions were delivered:–

 

1881. Feb. 21. LORD WATSON:–

 

My Lords, I am very clearly of opinion that, according to the law of Scotland, this document thus tendered is not receivable. The circumstances under which it was signed by the late Mr. Horne appear to be these: Mr. Jarrett was intending to raise and prosecute an action against the late Lord Huntingtower, and in that action he proposed, if he could make his contention good, to shew that the present Petitioner had been lawfully married in Scotland to Lord Huntingtower. I do not doubt that the document, so far as we are able to trace its history, is simply a precognition, in other words, written information obtained from a person proposed to be made a witness in that cause. Now I take it to be quite settled in the law of Scotland, settled in practice, and confirmed by the case of Macdonald v. Union Bank (1) in the year 1864, that a document so originating is not competent

 

(1) Court of Sess. Cas. 3rd Series, vol. ii. p. 993. [*508]

 

evidence in any subsequent cause. The general rule of the law of Scotland is that hearsay of a deceased person who would have been a competent witness, is receivable, and the writing of a deceased witness is hearsay, and in some cases may be hearsay of the very best order. But that rule of the law of Scotland is subject to exceptions, and I entirely concur in the view expressed by the present Lord President of the Court of Session in the case of Macdonald v. Union Bank (1) that those exceptions ought to be favourably received, and that the rule ought not to be widened beyond its present scope. The document tendered appears to me clearly to fall within the exceptions, and therefore must, in my opinion, be rejected by the Committee.

 

LORD SELBORNE, L.C.:– I am of the same opinion.

 

LORD BLACKBURN:– I am of the same opinion.

 

As to a document purporting to be signed by Margaret Ritchie, otherwise Bremner, dated the 15th of November, 1851, the body of which had been proved to be in the handwriting of Jarrett, Mr. Shiress Will admitted that the questions in the document appeared to be of a leading character. But he submitted that it might be distinguished from that which the Committee had just rejected by the fact that the answers were entirely in the handwriting of Margaret Ritchie or Bremner, shewing that she had an opportunity of giving a complete answer to the questions put to her; and also there was appended a declaration that the answers were all true. The answers here were holograph of Margaret Bremner, and therefore admissible as the best procurable evidence of what was within her knowledge. Dickson on Evidence (2nd Ed.), p. 90, mentioning the case of Macalister v. Macalister (2), says, “It would seem the letter or note holograph of a deceased person may be used.”

 

[LORD WATSON:– Mr. Dickson is not referring there to a holograph letter even sent to an agent; and with reference to the case of Macalister, the document in question there appears to have been some answers given by a lawyer in regard to the law of Penang; but there was no judgment given upon the point.]

 

(1) Court of Sess. Cas. 3rd Series, vol. ii. p. 963.

 

(2) Court of Sess. Cas. 1st Series, vol. xii. p. 198. [*509]

 

See also Magistrates of Aberdeen v. Moore (1) – voluntary affidavit of a person since deceased refused to be admitted.

 

The following opinions were delivered:–

 

LORD WATSON:–

 

My Lords, I do not think it possible to distinguish between the document which is now tendered and that upon which the Committee have recently ruled. A precognition, I take it, represents the substance of questions or suggestions made by a party or his agent to a particular witness, and the replies given to those questions or suggestions by the witness, and it is simply because it does represent a result so procured that the law rejects it. Now this document seems to me to put in the form of question and answer that which is really covered by the ordinary form of precognition. You have the result stated in the one case; you have the process by which the result is obtained set forth in the other; and as it is because the process itself is objectionable that the law rejects the result, I think that when the result appears in the form of question and answer, that objection is not removed, but exists in even a stronger form.

 

LORD SELBORNE, L.C.:– I quite agree.

 

LORD BLACKBURN:– I am of the same opinion.

 

Feb. 21, 22. Sir John Holker having no witnesses to call,

 

Mr. Shiress Will was heard to sum up the case of Elizabeth, styling herself Dowager Lady Huntingtower.

 

[He cited Pennycook v. Grinton – promise of marriage followed by conjugal intercourse makes a lawful marriage de præsenti (2); Sim v. Miles (3); and Mackenzie v. Mackenzie – marriage having been constituted by habit and repute, no regard will be paid to subsequent writings acknowledging that the parties did not live together as man and wife (4); Dalrymple v. Dalrymple (5).] See also Erskine’s Prin., 14th ed., pp. 58, 59, and cases there cited.

 

(1) 17 June, 1813. Hume’s Dec. p. 502.

 

(2) Mor. Dic. 12677.

 

(3) Court of Sess. Cas. 1st Series, vol. viii. p. 89.

 

(4) Mar. 8, 1810, Fac. Coll., vol. xv. p. 613.

 

(5) 2 Hagg. C. R. at p. 95. [*510]

 

Sir John Holker was heard to sum up on behalf of William John Manners Earl of Dysart.

 

The Lord Advocate, on the part of the Crown, submitted that Elizabeth, styling herself Dowager Lady Huntingtower, had not established her case.

 

The following opinions were delivered:–

 

LORD BLACKBURN:–

 

My Lords, the evidence given before your Lordships establishes that the late Lord Huntingtower, the eldest son and heir apparent of the last Earl of Dysart, on the 26th of September, 1851, openly married, in the parish church, Miss Burke. They lived together openly as husband and wife till 1860, a date which it may be material to remember. The Petitioner, William John Manners, is proved to be the eldest son of Lord Huntingtower by that marriage, and is clearly now the Earl of Dysart if that marriage was valid. It was formal and regular in every respect, and is valid, unless Lord Huntingtower was incapable of marrying on the ground that he already had a wife then living. The burthen of proof is on those who in any proceeding assert a marriage: when the proceeding is delayed till after there has been a second marriage that onus is greatly increased. The man who having a living wife, goes through the form of marriage with another woman in England, whether the first marriage was regular or irregular, if it was valid, commits the crime of bigamy, and is liable on conviction to seven years’ penal servitude. Those who allege that a man has committed a crime have the onus of proof cast upon them, for the presumption of law is always in favour of innocence. I think, however, that Lord Huntingtower’s general conduct was such as to reduce that presumption in his case to a minimum. But the effect of establishing a prior marriage would also be to reduce the lady, who had bonä fide contracted the second marriage, from the position of a legal wife to that of an injured woman, who has innocently committed adultery, and to reduce the children, if any, of the second marriage from the status of legitimate children to that of bastards. Painful as those results would be, they form no reason why the tribunal that has to decide the question should shrink from doing their duty and finding the fact [*511] according to the truth, if the evidence is such as to lead them to the conclusion that a valid first marriage existed: but they do, in my opinion, afford very good reason for increasing the onus of proof which lies on those who allege the first marriage, and afford very good reason for refusing to find the first marriage, though there is evidence which, if believed, would establish it, unless that evidence is in the opinion of the tribunal of such weight as to satisfy that onus. This observation goes rather to the weight of the testimony required as a matter of common sense, than to the law as to what is admissible.

 

Passing from these general observations to this particular case, it is, I think, proved that, in 1843, near Bath, Lord Huntingtowerseduced, she says ravished, Elizabeth Acford, who claims, on the petition now before your Lordship, to be Lady Huntingtower, and, by him, to be mother of Albert Edwin Tollemache, born in 1863, on whose behalf she claims the earldom. She consented, however, after this, to go with him to London and elsewhere, and live with him under the names of Mr. and Mrs. Tollemache, which they seem frequently to have spelt as it is sounded, Talmash, and this continued till 1848. She bore to him three daughters, and then he, in 1848, turned her off and left her in destitution, so that she had to apply for parochial relief for herself and her three daughters. My Lords, even if it were shewn that she had misconducted herself, this would have been mean and ungentlemanly conduct on his part to her. As regards his three innocent daughters, it was utterly without excuse. But this is not the question how raised, which is whether there was a marriage. During the whole of this first period of cohabitation, both parties were of full age, required no assent to their marriage, and there was no legal impediment to or practical difficulty in their being married in England if they pleased. But such a marriage, if it took place in England, would be registered, and not only is there no register, but it is not alleged that any form of marriage ever took place in England. At that time and down to 1856, when 19 & 20 Vict. c. 96, was passed, an irregular marriage contracted in Scotland was valid, though by parties who had neither of them lived in Scotlandbefore. And there is evidence before your Lordships that Lord Huntingtower and Elizabeth Acford, in June or July, 1844, some months after she had gone to live with him in London, and they, [*512] in London, had borne the names of Mr. and Mrs. Tollemache, were in Scotland, bearing there also the names of Mr. and Mrs. Tollemache, and there cohabiting. They stayed in Scotland about three or four weeks, and then returned to England, and never were in Scotland again. During that time there was no impediment to their contracting an irregular marriage in Scotland, which, if so contracted as to be valid in Scotland, would be valid everywhere. The allegation of the Petitioner, Elizabeth Acford, is that there then was such an irregular marriage. The question of law is, whether there is evidence sufficient, if believed, to establish such an irregular marriage; and then, if that is answered in favour of the Petitioner, arises the question of fact. Is that evidence such, and of such weight as, though the onus of proof is on those alleging the first marriage, to induce your Lordships, as judges of fact, to find that that irregular marriage did take place.

 

Before proceeding to express my opinion on those two questions, I think it well to say a word or two on the law of Scotland as to irregular marriages.

 

A promise made in Scotland to marry, subsequente copulä in Scotland, constitutes an irregular marriage, but that promise, though it need not be in writing, must be proved by writing in Scotland; or, perhaps, if the Court in its discretion thinks fit to allow it, by reference to oath. Lord Huntingtower is dead, and, if alive, a reference to his oath would hardly have been granted. See Longworth v. Yelverton (1). That sort of irregular marriage may, in this case, be thrown out of consideration altogether, for neither now nor at any time has it been alleged that there was such a marriage.

 

Habit and repute in Scotland also forms an irregular marriage. There has been an erroneous popular notion that if a man and woman cohabiting together in Scotland call themselves husband and wife it constitutes habit and repute. There is a letter of the 5th of February, 1849, by the Petitioner to the late Lady Dysart, on which I shall have hereafter to make remarks when I come to deal with the question of fact. In that letter she expresses that popular notion thus, “He has acknowledged me as his wife by living together as such in Scotland.”

 

My Lords, the question as to what is habit and repute in Scotland

 

(1) Law Rep. 1 H. L., Sc. 218. [*513]

 

has recently been much discussed in several cases in this House. I think that the period over which what is alleged to be habit and repute extends must always be very important. I believe that there never has been a marriage by habit and repute established in any case where the period over which the habit and repute extended has been so short a period as three or four weeks. And, though I am not prepared to lay down as law that even a shorter time might not be, under peculiar circumstances, sufficient, I am not prepared to decide that it would. But I think that habit and repute is not constituted by the parties speaking casually of each other as husband and wife to persons to whom the introduction of the woman as his wife could neither be important nor significant. And if every word of the evidence here is accepted as absolutely true, it comes to no more than that Lord Huntingtowerin Scotland, when taking lodgings or rooms at an inn for the woman with whom he cohabited, did not say that she was his concubine, so as to cause those who kept the lodgings or inn, if respectable, to refuse to take them in, but gave their names as Mr. and Mrs. Tollemache, which no doubt amounted to a representation that they were married, but did not amount to habit and repute. If she had been introduced as his wife to any persons in the society in which Lord Huntingtower then moved, especially if she had been so introduced to ladies, there would have been something to consider. It is, in the view of the case which I take, material, when deciding the question of fact, to remember that such a case might be made, and I think was put forward, by the Petitioner in her letter of the 5th of February, 1849, and probably on her behalf in Jarrett’s action in 1853, though it is not now proved; and indeed is not relied on now.

 

But there is a further way of constituting an irregular marriage in Scotland. A contract between a man and woman, capable of entering into a contract, to be forthwith and thenceforward husband and wife, if serious, deliberate, and mutual, constitutes very matrimony, if there be no impediment. There are no technical rules as to the proof of such a contract. It may be proved as any other contract.

 

All these points were carefully considered and decided by this House in the case of McAdam v. Walker (1) in 1813. The facts

 

(1) 1 Dow. 148. [*514]

 

there were that Mr. McAdam, owner of a large entailed estate, lived with Miss Walker as his mistress, and had by her children. On the morning of the 22nd of March, 1805, between 10 and 11 o’clock, he sent for three of his servants, and on their coming in said he had called them in to be witnesses of his marriage; he asked Miss Walker to rise, which she did. He took her hand, and said, “I take you three to witness that this is my lawful wife, and the children by her are my lawful children.” Miss Walker did not speak, but curtsied in token of assent. There was no writing whatever. That afternoon, a few hours after this marriage, and before there could have been any subsequent intercourse, or time for habit and repute, Mr. McAdam shot himself. It was in that case that the Lord President (Sir Islay Campbell) said that he did not conceive that McAdam was of sufficient sound mind to contract at the time of marriage; and that at any rate he conceived the object of Mr. McAdam to have been not to make Miss Walker his wife, but his widow. How, said Lord Eldon, it was possible for him to make her his widow without making her his wife could not very easily be conceived.

 

Lord Eldon and Lord Redesdale gave very careful and elaborate opinions, and Lord Eldon proposed (1), “that the present judgment should be prefaced by some finding which might distinguish it from the loose cases noticed by the Bar. The finding might be of this nature:–

 

“1st. That at the time of the declaration of marriage in question Mr. McAdam was of sound mind and able to contract.

 

“2nd. That being thus of sound mind it was unnecessary to decide upon the question of previous insanity, or any circumstances connected with it.

 

“3rd. That by the declaration of marriage, and the facts and circumstances connected with this declaration, it appeared that the parties did, on the 22nd of March, 1805, intend forthwith to marry, and did accordingly contract very matrimony.”

 

I may observe that there can be no contract of any kind between any parties unless there be mutual consent, but that if one of the parties use words intended to induce the other party to contract on the faith that he himself means to consent, and does thereby induce the other to contract accordingly, he is precluded

 

(1) 1 Dow. at p. 186. [*515]

 

from denying that he did so consent, and the contract is binding. The evidence here, if it proves anything, proves that Lord Huntingtowerwas consenting, but if the question rose as to the effect of a pretended consent to marry so given as to preclude him in an ordinary case of contract, I should be very unwilling to dissent from what is so well expressed by Lord Stowell in Dalrymple v. Dalrymple (1).

 

This being a question as to a Scotch peerage, your Lordships act upon the Scotch rules of evidence and not upon the English, where the laws of the two countries are not the same. They do differ on the questions as to when the rule against hearsay is to be relaxed where the hearsay evidence is that of a deceased person, and so far as any points arise on that difference, your Lordships have already decided. I do not think that the Petitioner, Elizabeth Acford, who is asserting that she was the wife of Lord Huntingtower, would, according to the law of Scotland, before the 37 & 38 Vict. c. 64, have been an admissible witness in a proceeding which, though not strictly a declarator of marriage, is very much of that nature, but since that Act I think she is an admissible witness, though one with a very strong bias, and whose evidence, therefore, must be received with proper caution. Whether in any case according to the law of Scotland the evidence of one witness would be sufficient, or whether in an English Court, where one witness is enough, it would be safe to act upon the evidence of a woman in such a position, when there was nothing either to contradict or confirm it, may be decided when the question arises. But though hers is the only direct evidence as to the fact of there being a contract to marry by verba de præsenti in Scotland, there is evidence in the present case proper to be considered as confirming, and also evidence proper to be considered as contradicting, her statements on that point. I take it that both by the law of Scotland and England evidence may be given of what is commonly called the re gestæ. It is not very easy sometimes to draw the line between what are res gestæ and what not; but when admissible as such, it does not matter whether the res gestæ took place in England or in Scotland. To put a case which has never happened, but which might happen, – suppose the question were whether there was a valid Gretna Green marriage, the only direct

 

(1) 2 Hagg. C. R. at p. 107; see post, p. 543. [*516]

 

evidence as to the contract at Gretna Green being that of the woman, who swore that she was there married per verba de præsenti.It could hardly, I think, be disputed that evidence that the alleged husband ordered post-horses at Carlisle to take him and the woman to Gretna Green would be admissible as part of the res gestæ, and though happening in England and before the alleged ceremony, would, if proved by independent testimony, go far to corroborate her statement that she was then and there married. If only proved by her own testimony, of course it could add no weight to it. And so, if it were proved that immediately after the alleged ceremony the couple went to England, and there were by habit and repute treated as married people, though that taking place in England could not, possibly, constitute a marriage, it would surely confirm her testimony as to the alleged contract in Scotland; and so, if it were shewn that in England, immediately after the alleged marriage, she was reputed to be, and submitted to be reputed to be, a concubine, and not a wife, it would go far to shake her testimony as to the marriage. When things said amount to being part of the res gestæ, proof of them is admissible, whether the speaker is alive or dead, and whether he is called as a witness or not; but many things done or said by a witness are admissible on the other side to shake the credit of that witness, which would not be admissible if that witness were not called. I think the letter of the 5th of February, 1849, to which I attach much importance, falls within this class of evidence.

 

My Lords, it is of great importance that the administration of justice, especially where there is much difference between the parties in wealth and state, should not only be fair and impartial, but also that it should be beyond suspicion. This caused your Lordships to give the Petitioner more time and more opportunity to bring forward her case than she was at all entitled to claim. And this induces me to state the reasons for the opinion on the evidence to which I have come fully, and I fear it may be felt tediously, in detail.

 

I will now proceed to state what I understand to be the material part of the evidence given at your Lordships’ bar; and what is the effect which it has on my mind, and, in my opinion, ought to have upon your Lordships’ minds, in deciding the question of fact.

 

Elizabeth Acford, after stating that she was seduced, or, as she [*517] asserts, ravished, by Lord Huntingtower in the end of 1843, says that he, by repeated promises to marry her, induced her to agree to go to London to live with him. She asserts that such promises were also contained in letters which she cannot produce, because they were taken from her and have been destroyed by Lord Huntingtower. And it does appear that some letters were so taken from her, and are not produced by his representatives. Whether the letters she specifies were amongst those, and whether their contents are accurately given by her, are matters depending entirely on her credit. A profligate man would readily make such promises by word of mouth to a woman and they could never, as the law then stood, be proved against him. A prudent man would not have made such promises in writing, as these letters would enable her to maintain her action for breach of promise of marriage. As Lord Huntingtower was profligate and not prudent there is no improbability in this part of her story. She lived with him in London and elsewhere, but represents that she had no further intercourse with him till she was, as she says, married to him in Scotland. But as in cross-examination she admits that she had lived in several successive lodgings provided by him under the name of Mrs. Tollemache, he visiting her under the name of Mr. Tollemache, that he often passed the night there, sometimes sleeping in a bed in her dressing-room, sometimes in a chair in her bedroom, and finally, when pressed, refusing to swear that he did not sometimes sleep on the same bed that she occupied, pp. 142, 143, I think that may be disregarded, and this motive for marrying her at all, did not exist. She asserts that he was all this time constantly promising to marry her, but did not do so because she was in bad health, which would be no impediment to performing the ceremony of marriage, and because they could not be married before the registrar till they had resided in one place for three weeks, but they lived together for six months.

 

Then comes a matter, which, if proved by independent testimony, would, as I have previously explained, be, in my opinion, important confirmation of her assertion that she was married in Scotland. I will read the passage from the shorthand writers’ notes.

 

“While you were at Trevor Square, did Mr. Kenrick visit you? – Yes; he used to dine there occasionally.” [*518]

 

“With Lord Huntingtower? – Yes, and Mrs. Kenrick.”

 

“While you resided at Trevor Square, did any conversation take place between you and Lord Huntingtower with reference to a marriage? – Yes, after the dinner was removed Huntingtower requested Mr. Kenrickto be all attention, as he had me up from my parents expressly to make me his wife, and he meant to take me to Scotland and marry me there according to the laws of Scotland, because he had asked Lady Dysart’s consent, and she had refused; she would not give her consent to it. He said he was determined to make me his wife, whether she would consent or not, and that he was determined to take me to Scotland and marry me by the Scotch laws.”

 

“Was Mrs. Kenrick present on this occasion? – I think so. I cannot be sure. I imagine she was there. I think she dined there that day, and Kenrick advised Lord Huntingtower to seek professional advice, as he did not know the real mode of the Scotch marriages, or something to that effect.”

 

“Was that the only conversation, or were there other conversations? – A great many.”

 

“Whilst you were at Trevor Square? – Whilst I was at Trevor Square; and I said that I should return to my family again. I was very wretched and very miserable.”

 

“Did you say why? – Well, yes; because he did not seem to carry it out so quick as I considered he ought to have done, and one obstacle was put and then another, money matters, I believe, not in his feelings towards me, for he was very much attached to me.”

 

“You said just now, “Because he did not carry it out so quick;” what did you mean by that? – Because he did not carry out the marriage so quickly as I thought he ought to have done, and I told him, I threatened him, I would go home to my family again, and I would never see him any more, and the world must know of his conduct about me. I did not hold it out as a threat to him; I held it out as I considered I was justified in doing so. And he said, “Dearest, it shall be carried out if I live, and before another month;” and then after seeing his family, I think his mother, Lady Dysart, gave him some money, and he went to Scotland, and he told his mother he was going to take me there to make me his wife.”

 

“(Mr. Shiress Will:) Did Lord Huntingtower tell you the reason why he went to Scotland? – Yes, he told me that he should go to Scotland, and he should take a house in order for us to live down there, and he explained the marriage laws to me; he explained them to me in this way; he said if he went to Scotland and made a vow before witnesses that we intended to become man and wife, that would be a legal marriage.”

 

“That he told you before going? – Yes, before going; and he said, “Lizzie, you had better accept of it in that way.” I said, “It is not a proper one; it is a reckless one.” He said it was not so if it was carried out in a true spirit; and I consented to go, with a good deal of persuasion. At least, he went first, and he took the house Grecian Cottage, Trinity, Edinburgh, and in the meantime Mr. and Mrs. Kenrick -”

 

“He went first? – Yes, and he was away a week.”

 

“And then he returned? – Then he returned.”

 

What did he say to you when he returned? – I was boarding at the Kenricksthen, and he said that he had taken the house down there, Grecian Cottage, in order to make me his wife, and that I was to come to Scotland; and I objected [*519] to it, and Mrs. Kenrick said, “Well, do not be foolish.” She said, “You go. Let him do it in his own way.” I said, “I will not go with him;” and he said, “Very well, then I will soon determine upon that point. You need not go – you can follow me;” which I did do.”

 

“Then he went down to Scotland, again? – Yes.”

 

“Then did you hear from him? – I heard from him, and the Kenricks heard from him.”

 

“What has become of the letters? – They were along with all the rest.”

 

“What did he say in the letter to you? – He spoke very affectionately to me, and begged of me to keep up my spirits and everything should go right and proper; that he meant honourably to me from the first moment; that he could not live without me, and that none of his family should ever stand as a bar between him and me in becoming man and wife.”

 

“Then did you go down to Scotland? – I went down in a steamship called the Clarence. Mr. and Mrs. Kenrick came to Blackwall, and we dined there; and then they saw me on board, and handed me over to the captain. We left there on Saturday night between 9 and 10 o’clock, and we ought to have arrived on the Tuesday night, whereas by a severe storm we did not get in till the Thursday evening, and Huntingtower was very unhappy and miserable indeed; he thought we were all downed.”

 

There is no misapprehension as to what she means to assert as to Mrs. Kenrick’s knowledge of all this, for when on cross-examination she is asked –

 

“Why did you not go with Lord Huntingtower to Scotland?” – Her answer is, “I followed him. I did not go with him. He wished me to go, but I would not. Mrs. Kenrick blamed me for it. I said, I do not care, I will not go with him. I stopped at her house.” And afterwards, when she is cross-examined as to a dinner which she said was given at Greenwich on her return to celebrate the wedding, and asked if there were any ladies there present, and says, “Three, one of whom was Mrs. Kenrick,” she is asked, “Mrs. Kenrick knew perfectly that before you went to Scotland you were not married?” and answers, “She was perfectly aware of it, and she arranged matters with Lord Huntingtower, my stopping there, and their seeing me off at Blackwall, and we dined together there. They were Lord Huntingtower’s friends, not mine.”

 

Mr. Kenrick is dead. He was still alive in 1853, when Jarrettbrought his action, as to which I shall have more to say. Mrs. Kenrick, now Mrs. Steggall, is alive. Your Lordships adjourned the proceedings for a fortnight that she might be, if possible, produced as a witness. She was produced, and instead of confirming Elizabeth Acford’s testimony contradicted it. She says that when first she saw Elizabeth Acford, Lord Huntingtower introduced her as his wife, and said that they had been married three days before in the country (which, if he said it, was a falsehood, but it is by no means incredible that he did then tell a lie), and that she [*520] always believed them to be legally married, and never heard of their being in Scotland at all. She adds what, if she is giving evidence bonä fide, shews both that her memory has greatly failed her, she being now an aged woman, and also that the intimacy between her and Lord Huntingtower and Elizabeth Acford has bee greatly exaggerated. For she says that she continued to see them, and they continued to live together, till she and Mr. Kenrickwent to New Zealand in 1852, from which they returned in 1853. Now we know both from Elizabeth Acford’s testimony, and from written documents, that in 1848 Elizabeth Acford was discarded by Lord Huntingtower, he alleging, truly or falsely, that she had a clandestine correspondence with Mr. Kenrick, and that, in 1849 and 1850, she was in receipt of parish relief, and in 1851 Lord Huntingtower was married to Miss Burke and living with her. I see no reason to doubt that this witness is speaking what she now believes, and though her memory has much failed her, I think that as long as she remembered anything at all about the matter she could hardly forget what Elizabeth Acford says if it was true. I may add that in 1853, when Jarrett’s action was tried, Mrs. Kenrickwas a younger woman, and must have had a much fresher recollection of everything. I think, therefore, that there is here a conflict of testimony as to a material part of Elizabeth Acford’s evidence.

 

I resume reading the notes of her evidence where I left off in 1844:–

 

Did anybody then meet you? – Yes, Frederick Spicer, his man servant, with a carriage and a pair of horses; and he saw to my luggage, and they drove me, he and another man, to this Trinity Cottage, within three miles of Edinburgh; and there Lord Huntingtower received me on the lawn; he was very kind and very affectionate.

 

Will you state to their Lordships all that passed; you say that Lord Huntingtowerreceived you upon the lawn? – Yes, he received me upon the lawn, and the first thing he did he shook hands with me, he was thankful, he said, I had arrived after the storm, and he presented me with a white rose; and then he gave me his arm, and I went in the house, and then he called his man-servant, and he said, “Fred” (or Frederick, or something) “you must be our clergyman. I have brought Miss Acford here expressly to make her my wire, and whether I live or die, always stand up for her.” He said, “My family would do anything rather than that I should marry this lady, but my object is to bring her out as my wife, which she deserves;” and he placed his hand on my shoulder, and he said, “I now make you my wife in the presence of Frederick Spicer.” [*521]

 

Did Spicer say anything? – Spicer said, “I will, my Lord.”

 

Did you say anything? – I said, “Yes,” I took him for my husband.

 

Do you remember what you said? – No, I cannot exactly remember at the moment. I said “Yes,” I think.

 

Will you tell us in your own way what else happened? – Then in the course of the evening (it was daylight then up to 8 or 9 o’clock) he gave me a ring, which I have now got on my hand. Do you wish me to produce it? – Yes, certainly.

 

It was a wedding ring, and he put it on my finger, and he said, “Dearest you are now my wife.” That is the ring (producing a ring). I cannot wear it on my wedding finger. Would my Lords like to look at it?

 

Is it an ordinary wedding ring? – It is an ordinary wedding ring. It is ten years ago that I left off wearing it simply because my finger swelled. It got too small for me. I can now wear it on my little finger.

 

“That you say is the ring which Lord Huntingtower gave you? – That is the ring which Lord Huntingtower gave me.

 

On the evening of the first day you arrived? – On the evening of the first day I arrived.

 

Did anything else pass on that day that you wish to tell us; any other conversation, or anything of the kind? – I said, “Is that all the ceremony?” and he said, “Yes,” it is quite enough.” He said, “Fred has been our clergyman, and he will answer for it,” or something to that effect. With that I told him I was scarcely contented, but he said, “Not so, it is legal, and my father being a Scotch peer will make the marriage more binding. It is a true marriage.” He said, “And I can never marry any other women hereafter.”

 

What did you do or say to that? – I said, “I was content,” “I was satisfied,” and I considered myself from that hour to be the wife of Lord Huntingtoweralways, honourably so; and I am sure I never had any doubt upon it. I felt that it was right and proper, because he had told me so, and then I made inquiries privately, unknown to him, and I was told also that it was a legal marriage.

 

Have you told us all? – No, there was no female servant that day, and in the morning she arrived, a woman called Margaret Ritchie, I believe, and she came, and then he called in Frederick Spicer and Margaret Ritchie, and then repeated the same words, and said, “I have brought Miss Acford (or at least she is now Lady Huntingtower) here to Scotland to make her my wife, and I call you two as witnesses to the marriage.” He said, “My mother, Lady Dysart, has written a letter to me calling me a fool, and a gull, for taking my wife” (as he called me then) “to Scotland; but I defy the whole of them.” He read part of Lady Dysart’s letter to the two servants, and she said in the letter, “For ever afterwards, Lionel, you must call that woman your wife; you can never marry again.” She was indignant, of course, but of course there it was. He said, “Now, Frederick, if anything happens to me, always stand up that this lady is my legal wife;” and he said “I will, my Lord.”

 

Was that all that passed in the presence of Spicer and Margaret Ritchie? – There might have been more said, but I think that is about all.

 

How long did you and Lord Huntingtower remain at Grecian Cottage? – It was some weeks; it was over three weeks, I believe; it might be four, and it might be more than that, but I do not think it was. From that evening we lived together as man and wife; we cohabited together as man and wife from [*522] the hour he made me his wife by saying those words in the presence of his servants.

 

Up to that time had you any intercourse with him after what passed at Southstoke? – Certainly not. My health was not sufficiently adequate to anything of the kind; and not only that, but my mind and feelings were quite in disgust about it, or having it alluded to.

 

I have already expressed my opinion that the way in which the two treated each other after this alleged contract of marriage, in England is admissible as part of the res gestæ, and may be of weight as confirming or as shaking the credibility of the evidence of Elizabeth Acford, which is the only evidence directly proving the contract in Scotland, which, according to the law of Scotland, made very matrimony.

 

Their first daughter was registered as a legitimate child. This was done by her, she says, at his request. The second daughter was registered, and the registry signed by Lord Huntingtower himself, on the 2nd of January, 1847. It describes the child as the legitimate child of William Lionel Talmash, and the mother as being Elizabeth Talmash, formerly Acford. This is, I think, the only real confirmation of her story. And it is strong confirmation, for (though nothing done in England could make matrimony) such an act as this, registering the child as legitimate, though by what was practically a fictitious name, tends to shew that he was then acting as if she was his wife, and so confirms her statement that enough had taken place in Scotland to constitute matrimony. This must be given its due weight in her favour. The other supposed confirmations came to nothing. General Harrison is called and gives evidence to the effect that he became acquainted with Lord Huntingtower, then living in a very disreputable way under the name of Mr. Tollemache, with Elizabeth Acford under the name of Mrs. Tollemache; and that in 1847 he had a conversation with Lord Huntingtower which, if accurately remembered after the lapse of more than thirty years, shews that Lord Huntingtowerthen told a story as to which I shall only say that it is quite at variance with what she says. And that, profligate as it was for him to speak so of any woman, it is to me quite incredible that even Lord Huntingtower should speak thus of a woman whom he was then treating as his lawful wife.

 

From 1844, when they returned from Scotland, till 1848, Lord [*523] Huntingtower and Elizabeth Acford continued to live together. She does not pretend that she ever saw or spoke to one of Lord Huntingtower’s relatives. In 1848 she was staying at a Miss Pottle’s. It appears that the lodgings had originally been taken by Lord Huntingtower, it does not quite appear when, under the names of Mr. and Mrs. Langford. Elizabeth Acford had, she tells us, became convinced, probably quite correctly, that Lord Huntingtower was cohabiting with another woman. He had asserted, she says falsely, that she had improper communication with Mr. Kenrick. There were scenes between them, and he, she says, took from her be force various letters, and then this occurred. I will read her own words as appearing in the shorthand writer’s notes at page 79.

 

What did he do with those letters after he had broken open the box? – He took them away. I do not know what he did with them. He said, “Miss Pottle, I wish to speak to you,” and she said, “Walk in here.” So he did, and he said, “This lady is not my wife.” Miss Pottle said, “What right then had you to bring this lady here?” He said, “Well, my family say she is not my wife.” She said, “That has nothing to do with me what your family says. You brought her here and introduced her as your wife, and I believe it; you have sworn it to me.” He said, “I am not going to pay for her board and lodging here. Turn her out.” I said, “You cruel brute.” “No,” says Miss Pottle, “she shall not be turned out. I will do what is right by this unfortunate lady, and you shall pay for it,” and so she did. She kept me and my children and servants, and she brought an action in the Bromley County Court, and she recovered the money for our board and lodging.

 

Do you know of your own knowledge that Miss Pottle brought an action against Lord Huntingtower? – Yes, she subpoenaed me in the case; so I attended.

 

Against whom did she bring the action? – Lord Huntingtower.

 

In the Bromley County Court? – Yes.

 

Were you present in the County Court on any of those occasions? – Yes, and I was examined by the Judge.

 

Were you a witness? – I do not know; they subpoenaed me.

 

Did you give evidence? – They asked me several questions, and Lord Huntingtowerhad got a number of professionals there, and he every now and then looked up in my face, and was going to say something to me, and then ceased. The Judge said, “It is evident that you have made yourself liable to support this lady as your wife, and it is your duty to pay the bills,” and it was ordered so, and they recovered the money at different times, and I understood that he got the money from Lady Dysart, because his valet happened ----

 

This, you say, was at the Bromley County Court? – Yes, in Kent.

 

Can you remember when it was? – It was in some part of the winter. I know it was very cold. I was then nursing my third dear baby, a young baby. She must have been about five months old. I nursed her till she was eight months old.

 

Do you mean in the winter of 1848? – The year that my last child was born. It was a short time after we travelled up, you know. [*524]

 

(Lord Watson): How many times was Lord Huntingtower sued in the County Court? – Three times, I think, by the same lady. The Judge told her she could recover her money at all times.

 

My Lords, at that time, and until the 11th of July, 1853, when the 17 & 18 Vict. c. 99, came into operation, a wife was not, in England, an admissible witness against her husband, so that, appearing as a witness against Lord Huntingtower was an assertion that she was not his wife, and, so far, is a contradiction to her main story. I do not, however, attach any weight to this, as she, probably, was not aware of the law of evidence. If the Judge’s decision was that, wife or no wife, Lord Huntingtower had made himself liable to Miss Pottle till the contract with her already made had expired, it was perfectly right; if he said that he would be liable to her on any fresh contract entered into afterwards, I think he was wrong, but I do not think he can have so said. At all events, Miss Pottle did not continue to keep her, and she fell into great distress, and applied to Lady Dysart. Two letters, dated in December, 1848, and January, 1849, are produced, signed E. Acford; for some reason, I do not inquire what, the correspondence was afterwards carried on by her as E. Ackland.

 

I have already expressed my opinion that, though nothing done or said by her could either make a marriage, if there was not one, nor undo the effect of the marriage, if there was one, yet, when she is called as a witness, it is competent for the other side to give evidence of any statements made by her for the purpose of destroying her credit; the weight of such evidence, of course, varying according to circumstances. It will be in your Lordships’ recollection that she says now that Lord Huntingtower, in 1844, explained to her what was the law of Scotland, with an accuracy not to have been expected from him, and that she has remembered it ever since, with a tenacity of memory rather surprising, and must, of course, have remembered it much better in 1849. I may add also that it appears that in 1865 she received a pamphlet published soon after the Yelverton Case, which did contain a statement of the law of Scotland such as she now says she knew from 1844; and it is a part of her evidence now that not only had she believed Lord Huntingtower’s statement that he had told Lady Dysart all about his marriage, but that she had read a letter from Lady [*525] Dysart to him to that effect. I will now read her letter of February, 1849, correcting the bad spelling:

 

Princes Square,

 

5th February, 1849.

 

Madam, – With thankfulness and gratitude to you do I acknowledge the receipt of your kind letter, with five pounds enclosed.

 

I will attend to all your wishes in every respect, and shall be glad to inform you the moment matters are finally arranged on the part of Lord H. if he will do anything for me. I have no doubt, Madam, with your kind interference, his Lordship’s feelings may alter towards me and his poor children. I am still willing to give up the letters, as I do not wish to hold any papers of His Lordship’s, that I may the sooner forget that I ever knew such an unhappy man; but in the faces of his children do I see the very image of himself, which calls to mind all my wretchedness. You say, Madam, in your letter that you should like to know what His Lordship’s letters contain that is of importance to me. They all tell that he has acknowledged me as his wife by living together as such in Scotland. From that time, in the year 1844, he gave me his name, and introduces me as his wife to every one. He himself has had all three of the children registered in the name of Tollemache, and I always considered myself a married woman from that time, and he has often said if I did not feel quite safe he would take me to an English church and make me his wife openly, as he could not be happy without me, but that he should be discarded by his family, but that he did not mind; but out of feelings to his noble family and birth, I did not wish him to do so, as I have often told him if he had married a lady in his own sphere it would have been a comfort to himself and friends, but this I could not persuade him both before and since the fatal occurrence that took place between us. If I had studied my own interest and future respectability more than I did in that case, I should now have been a happy woman. I could not bear the thought of one so noble as himself to share the fate with one so humble, if his family should discard him; but he said in one of his letters, “Let us rather beg our bread together than ever part, for we were intended for each other, and no one shall put us asunder.” The task, Madam, is too painful for me to dwell on, otherwise I should like for you to know more, and I should like to send you a copy of all His Lordship’s letters. I then think you, as a mother, could pity me, and see how cruelly I have been dealt with by His Lordship; but I do not wish to hurt your feelings or injure Lord H. in your kind estimation towards him, for he is to be pitied by every one. I sincerely trust he will see his folly some day, and he may yet be a comfort to you and all his family. He has my kind wishes. Madam, with regard to your name being brought up in the Bromley Court, the question was not asked of me if you gave me any money. It was, “If I had received any from Miss Toone while I was at Mr. Pottle’s?” I said, “No, I had not.” I was then asked, “If Mr. Toone gave me anything when I saw him?” I said, “One sovereign.” Madam, your name was not spoken of to me in Court.

 

I am sorry to inform you, Madam, all three of my children are very ill, and I have not any one to do the slightest thing for me. I am quite worn out for want of rest, and no one to speak to. My life is a burden to me.

 

I am, Madam,

 

Your very obedient,

 

E. Ackland. [*526]

 

Every man must judge for himself whether this is such a letter as would be written if her present evidence were true. To me it seems a very important contradiction, tending to shew that her whole tale as to the contract per verba de præsenti is an afterthought.

 

Lady Dysart, after supporting her for some time, withdrew her further assistance, and Elizabeth Acford was obliged to apply for parochial relief; in 1851, as already mentioned, Lord Huntingtoweropenly married Miss Burke. She says that various people believed she was the right Lady Huntingtower, pitied her, and assisted her. I think this very likely, for there are always people who, from a generous feeling, will help one whom they think oppressed, and always people who will take up as a speculation causes likely to lead to a lucrative compromise. Now, it is the law of England that, when a wife is turned off by her husband without fault of hers, and left destitute, she carries with her an authority implied by law to pledge her husband’s credit for necessaries proper for the wife of a man in his degree. On this doctrine Mr. Jarrett acted; he supplied Elizabeth Acford with necessaries certainly by no means in excess of what would have been proper for the wife of the eldest son and heir apparent of an earl, and then brought an action against Lord Huntingtower for those as supplied on his credit to his wife, who as such had pledged it. The action was tried before Baron Alderson at the Kingston Spring Assizes, 1853. At that time the wife could not be received as a witness against her husband, and those resting their case on Elizabeth Acford being the wife of Lord Huntingtowercould not call her as a witness. But all other evidence that could have been brought forward now could have been brought forward then, and inasmuch as the action was against Lord Huntingtower, everything which he had said or done was admissible as against him, though it would not, unless part of the res gestæ, be admissible now. If she, in telling her story to Jarrett and his legal advisers, rested her marriage entirely on habit and repute in Scotland, not bringing forward the story of the ceremony, the inference is strong that the story of the ceremony is a subsequent invention. If she did tell that story, they knew that Frederick Spicer, who was then alive, and Margaret Ritchie, who was then [*527] alive, and with both of whom Jarrett was in communication, were very important witnesses. And they must have known that Mr. Kenrick, who was then alive, and who if not friendly to Elizabeth Acford was at least then hostile to Lord Huntingtower, and Mrs. Kenrick, who then, near thirty years ago, was not likely to have forgotten anything, would be very important witnesses. I do not attach much weight to Lady Dysart being then alive, for she was so hostile a witness that no one would have thought of calling her. If, however, the case put before them was only that of habit and repute, these witnesses probably would carry the case no further than the letters mentioned in the letter of the 5th of February, and they might well hope that they could make such a case from them as to force Lord Huntingtower’s counsel either practically to admit the truth of the case, or to call him as a witness and subject him to cross-examination. What evidence they did call we do not know, but they failed in their action. After this Elizabeth Acford went to Ham House, where Lord and Lady Huntingtower resided, and to Grosvenor Square, where Lady Dysart resided, and made such a disturbance that finally it was agreed that an annuity of £60 should be settled on her in her maiden name, she giving up all letters and all claim on Lord Huntingtower, and a formal deed, dated the 3rd of May, 1854, and made between Elizabeth Acford, spinster, made in the proper form for securing an annuity to a woman who had been his mistress, but all connection with whom had ceased since the middle of 1848, was prepared and executed by her.

 

Her explanation of this is given on cross-examination:

 

I was obliged to do it or starve and see my children die at my feet; there was no help for it whatever. He said, “I wish you to do it, Lizzie, though it is apparently against yourself; you know you are my legal wife.” He said, “Miss Burke married me with her eyes open; she was thoroughly and purely aware that you were my wife; she knew I had married you in Scotland.”

 

So that your view was that your executing this deed, which described you by your maiden name of Acford, and described your children as Acford, and in which you covenanted not to molest him at all, would have no effect whatever? – Not the slightest effect. He said it did not matter what I did about that, and that if I signed it in my maiden name it would never invalidate my marriage to him.

 

At that time you were thoroughly and completely convinced that you were married to him? – Most assuredly. [*528]

 

How far that prevents the effect of the execution of this deed in shaking her credit your Lordships must judge. In 1857 she and Lord Huntingtower resumed cohabitation. He took a house and maintained an establishment for her whilst he was living with the lady whom he had married in 1851. An agreement was entered into between them in her maiden name as Elizabeth Acford, providing for the education of her daughters. As I have spoken with severity of Lord Huntingtower, ie is fair to say that for a time he behaved well and properly to his daughters, and always seems to have been, after his fashion, kind to them, though his later conduct can only be palliated on the supposition that he was insane.

 

Towards the end of 1859 Lord Huntingtower took up with a woman called Emma Dibble, with whom he lived till his death under various names. Your Lordships will remember that it was in 1860 that Lord Huntingtower finally ceased to live with the lady whom he had married in 1851, and with whom he lived as his wife till then. What follows I will read from the shorthand notes of E. Acford’s cross-examination:

 

You were then convinced that you were his wife? – Certainly. I am still convinced that I had an undoubted right to receive him as my husband.

 

And you were convinced that your children were legitimate? – Most assuredly.

 

You had not any doubt about it? – Not the slightest. I felt myself an honourable woman.

 

Just look at that (handing a letter to the witness), is that your handwriting? – Yes.

 

I will just read you this letter:–

 

“Sherborne Street,

 

“14th December, 1859.

 

“Huntingtower, – If you will give me £1000 I can get married within a month, and in case the man might do as you have done – leave me to the mercy of the world, an outcast and a beggar – I will thank you to have it all made over to myself, so that I may do with it as I think fit. An early reply will greatly oblige,” and then it is signed “Elizabeth.” You wrote that letter, did you not? – Yes, I wrote it, and I perfectly well remember it. I know the conversation that I had had with Lord Huntingtower prior to my writing it.

 

Were you proposing or intending at that time to get married? – Well, I never intended it, but I said to Lord Huntingtower, “You have thought proper to get married again, why should not I?” He said, “If you dare to get married again I will always claim you, and will blow the fellow’s brains out,” or something to that effect, so I wrote in a playful manner.

 

This was not seriously written then? – It was not seriously written; it was written in a playful manner. I never felt I was at liberty to marry again, only [*529]

 

I put the question to him when he was with me, and he said, “If you ever marry again I will always claim you, and I will blow the fellow’s brains out.” That was just his expression, and then in a playful, teasing manner I wrote that letter. I perfectly well remember it.

 

That letter did not express your real intentions at all? – Certainly not. I did it to tease him.

 

You knew, did you not, that you would be committing bigamy if you married again? – I was aware that I could not marry again. Certainly I was.

 

And that you would be committing a crime if you did? – I should be committing bigamy, as I told him he had done.

 

Then you are quite sure that this was not done seriously? – On my oath, I am sure.

 

He did not send you £1000, did he? – No, he never sent me any money in the shape of £1000 or 1000 sixpences. He came to me on the receipt of that letter, and he was very indignant at my conduct, as he styled it.

 

He was very indignant that you had suggested it? – Yes, that I should think of marrying again.

 

You suggested, you know, that the money, if it were paid to you, should be settled on you; had you discussed that matter with Lord Huntingtower? Perhaps you do not quite understand me. You suggested in this letter, “I will thank you to have it all made over to myself, so that I may do with it as I think fit.” – Yes, I did (laughing). I beg pardon if I smile, I cannot help it. I knew it was ----

 

That it was a joke, in fact; that it was meant as a piece of fun? – Yes, it was meant as a piece of fun from beginning to end, because he was telling me this. He said to me, “Dearest, if I had a thousand women to choose from, I should never have met with one like yourself, so quiet and so discreet.” I said, “Decidedly more so than you have been, for you have married again and committed bigamy,” and I said, “Do not be surprised if I were to do the same.”

 

It was banter and fun? – Yes, there was no seriousness one way or the other. No importance must be attached to it; it was a mere playful bit of foolery between us.

 

I have not road the whole of this letter. I had not the whole of it copied; I had only the first page. – I do not know, I am sure, what is written there.

 

I will read it. – If you read it I will acknowledge it.

 

“P.S. I shall expect that you will allow the children to write to me on the first of every month without coming through your hands; I ought to have heard again from them by this time. E.” That is your writing, is it not (shewing the postscript to the witness)? – Yes.

 

The first sheet is signed “Elizabeth?” – Yes, he would not allow me to sign in any way else.

 

The postscript is signed, as postcripts generally are, with the initial? – Yes, I acknowledge that, decidedly. I was backward in my hearing from my children.

 

You were very fond of your children, were you not? – Yes; it nearly broke my heart his keeping them away from me nearly for ten years; he never allowed me to see them hardly.

 

You would not willingly have done anything to injure your children? – I would have sacrificed my life for them; I did my health. [*530]

 

Was the postscript seriously intended or not? – The postscript was seriously intended.

 

The first sheet is pleasantry, but the postscript is serious? – The postscript is serious; the other was a piece of foolery done to tease him more than anything else.

 

Is that your handwriting (handing a letter to the witness)? – Yes.

 

And this also (handing an envelope to the witness)? – I will honestly acknowledge everything.

 

I am quite sure you will; the envelope also is in your handwriting, is it? – Yes.

 

This is a letter written from 34, Sherborne Street, and dated the 12th of February, 1860; that is a few months after the last? – Yes.

 

And it is addressed to “P. R. Welch, Esq., 2, Paper Buildings, Temple?” – Yes. That was a gentleman he used to send to me with money.

 

You knew who Mr. Welch was? – Yes.

 

A barrister? – Yes, he was a barrister.

 

And a friend of Lord Huntingtower’s? – Yes; he frequently used to call.

 

Afterwards he was, I think, a commissioner of bankruptcy at Leeds? – I did not know him then; he was practising in the Temple when I was introduced to him, and for a long time afterwards I used to call there by Lord Huntingtower’s request.

 

He used to give you money sometimes? – Yes, he used to give me money frequently from Lord Huntingtower.

 

Is Mr. Welch dead? – I heard so.

 

The letter was read as follows:–

 

“34 Sherborne St.,

 

“February 12th, 1860.

 

“Sir, – With reference to the subject that I were speaking with you upon, I beg to repeat that I can get married immediately, and will do so if Lord Huntingtowerwill give me £500. I have already written to His Lordship upon the same subject. An early answer will greatly oblige,

 

“Sir, – Yours most respectfully,

 

“Elizabeth Acford.”

 

“To P. R. Welch, Esq.”

 

That was your letter? – Yes. Mr. Welch was quite aware that I was going to write that letter.

 

Was that pleasantry? – It was more to get money from Lord Huntingtowerthan anything else. Mr. Welch was fully aware of it. I do not know that Mr. Welch did not suggest it to me.

 

You will not swear that, will you? – I should not like to swear it; but I am almost positive that I could. It was merely done in a business transaction; it was never intended. I never entertained seriously anything of the sort. It was merely done for mischief.

 

Do you represent to their Lordships that that letter was also written in a mischievous spirit? – Most assuredly it was, because I always felt myself married to him, and I always told Mr. Welch so; Mr. Welch said he could say nothing in favour of Lord Huntingtower against it; he told Huntingtower so.

 

Did you ever say to Mr. Welch, or to anybody else, that at that time you were in a position to get married to a respectable householder in Islington? – I daresay it was said for me. [*531]

 

Did you say it? – I do not know whether it was in those words or not.

 

Did you tell Mr. Welch, when you were pressing him for money, that you could get married, and that you could get married immediately, if you liked, to a respectable householder in Islington? – Well, I had several offers of marriage from different parties, but they did not know that I was a wife; they thought that I was a widow lady.

 

The people in Islington thought that you were a widow? – They thought that I was a widow lady; and when I had those offers of marriage I felt quite indignant.

 

In 1860, or at the latter end of 1859, had you an offer of marriage? – I do not know, really.

 

Just try and recollect? – I might have had; I really cannot say; I never entertained it.

 

You had several, had you not, when you were living in Sherborne Street? – I might have had.

 

You might, of course, Madam; but is it the fact that you had? – Yes. Lord Huntingtower made me sign my name like that; he said it was better to do so.

 

Who did? – Lord Huntingtower; he said, “You had better sign yourself Elizabeth;” do not sign it “Huntingtower.”

 

It was quite natural that you should have signed it “Elizabeth”; but let me draw your attention to this letter to Mr. Welch. About this time, when this letter was written, did you not tell Mr. Welch that you had had an offer of marriage? – Yes, I did in that letter assuredly.

 

And by word of mouth? – Yes; if he came to my house I might have done it.

 

By word of mouth, did you not tell him that? – Yes; and I told him he had better tell Lord Huntingtower.

 

Did you not tell him by word of mouth that you had got a very good offer? – Yes, I think I did.

 

And that you would get married if Lord Huntingtower gave you a sum of money? – Yes; I did not see why I should not get married, as he had done. I did not see why I should spend my days in abject poverty while Lord Huntingtowerhad committed bigamy; and Mr. Welch told me if I did I should be prosecuted. He said, “You can tell Lord Huntingtower that, if you like.” I said, “I shall certainly tell him, and ask him for money.”

 

When you told him that you had a right to get married as Lord Huntingtowerhad got married, you were serious in what you said? – I was not serious. I wanted Lord Huntingtower to give me up wholly and solely, or come and live with me altogether. I wanted him all or nothing.

 

If he would have given you up altogether -----? – But he would not; he would never give me up; never.

 

Please listen to me. If he had been willing to give you up altogether, and to give you a sum of money, you were prepared to get married? – I might have done.

 

You were prepared; this letter says so? – Yes, I had an offer.

 

What I have said is the truth, is it not? – I had an offer, but I never made up my mind to it.

 

Of the effect of this in shaking her credit your Lordships must judge. [*532]

 

Then comes a very strange story, into which I shall not enter in much detail. It rests on the testimony of Mrs. Whiting, the eldest and only surviving daughter of Lord Huntingtower, and strange as it is, it is so confirmed by a variety of documents that I believe it. Lord Huntingtower had treated her well and sent her to be educated abroad. In February, 1863, she was sent for by him and brought to the house where Lord Huntingtower was living with Emma Dibble, sometimes under the names of Mr. and Mrs. Digby, and sometimes under the names of Mr. and Mrs. Manners. Then Lord Huntingtower developed a scheme of mingled ingenuity, folly, and wickedness. He told her that her position would be greatly improved if her legitimacy could be established, and that it could be established if she would go to her mother pretending to have run away from Vienna against his will, and instigate her to take proceedings to establish her marriage with him, which would have the effect of setting him free from Miss Burke and establish his daughter’s legitimacy. That then her mother, thus proved to be his wife, might divorce him on the ground that he was living in open adultery with Mrs. Dibble, and then he would be able to marry Mrs. Dibble; that any respectable solicitor would take up her case on speculation, but if not he would furnish the money, but it was to be the most profound secret that it came from him. My Lords, I do not much blame Mrs. Whiting, then a mere child, for doing what a father who had always been kind to her commanded; and I think it superfluous to say anything as to Lord Huntingtower’s conduct. Elizabeth Acford would not enter into this scheme, the certain effect of which would have been to destroy her annuity. He then refused to pay it. She brought an action on the annuity deed in her maiden name. He pleaded in bar that she was his wife, which she denied, and the issue thus joined was tried at the Maidstone Spring Assizes, 1865, before the Chief Baron Pollock. She was called as a witness, whether by Lord Huntingtower’s counsel or her own does not distinctly appear. I will read what she now says on cross-examination as to her evidence from the shorthand writer’s notes:

 

You were called to prove that you were Lord Huntingtower’s wife? – I was not exactly called to prove that; their object, I believe, was to get the money.

 

Your object was to get the money? – I believe my solicitor’s object was to get [*533] the money. I do not know that they were prepared to ask the question about my being his wife, or otherwise.

 

What I want to put to you is this, when you gave your evidence before the Court, did you say a word about the ceremony that was performed before Spicer? – No, I did not.

 

Not a syllable? – No, not in Court.

 

Of course you knew all about it? – Yes, I knew all about it, and I knew I was his wife; but I did not think there was any occasion to say it when the man was claiming me as such. I did not bother about that.

 

You said no syllable about what we have called the “ceremony?” – No, not in Court. I was not called upon to do so.

 

You were sworn to give evidence, were you not, before you gave your evidence? – Yes.

 

At that time you knew you were married; you knew that the ceremony had been performed; you knew everything that you have told us to-day, or told us since you began to give your evidence? – I knew it, and I have spoken the truth.

 

Lord Huntingtower cannot have told his counsel of the contract before Spicer, yet if it had been true, or even if it had been asserted in Jarrett’s action in 1853, he must have known it.

 

On this evidence the Chief Baron directed a verdict for the Defendant, subject to leave to move. A rule nisi was obtained, but cause was never shewn, Lord Huntingtower’s counsel having consented that it should be made absolute.

 

I suppose they explained to Lord Huntingtower that the verdict if it stood would not affect Lady Huntingtower’s rights; and that if he, contrary to all probability, succeeded in establishing that his marriage with her was bigamous, her friends would, in all probability, indict him for bigamy, and that after all he would not be a bit nearer his ultimate object of marrying Emma Dibble, for the Queen’s Proctor would certainly intervene and prevent a divorce by collusion. Though Lord Huntingtower had no regard to his character, and I think I may say had by this time no character in the least worthy of his regard, he would hardly be insensible to the force of these considerations. But, whatever might be the reasons, the verdict was entered for the Plaintiff, and she received the money, and her solicitors the costs.

 

I have, for the reasons I stated before, gone through the evidence at, I fear, tedious length.

 

If the burthen of proof lay on those denying the first marriage, to prove that Elizabeth Acford tells a falsehood in asserting that [*534] there was a marriage per verba de præsenti in Scotland in 1844, I think there is ample evidence to justify a finding in their favour. But the burthen of proof being on the other side, and the question for your Lordships being whether the evidence is such, and of so satisfactory a nature, as to satisfy you affirmatively that there was such a marriage, I think your Lordships cannot hesitate. I, without the least doubt, express my opinion that it is not proved, and I advise your Lordships to find in the same way.

 

LORD WATSON (after alluding to some of the facts previously given, and stating that he would in future designate the lady styling herself “Elizabeth Dowager Lady Huntingtower” as the Petitioner) continued:–

 

It appears from the statements in the case for the Petitioner, and it is certainly established by the evidence, that although the marriage of Lord Huntingtower to Miss Burke, in September, 1851, came to her knowledge shortly after its celebration in facie ecclesiæthe Petitioner took no steps to have the validity of her alleged irregular Scotch marriage of July, 1844, or the nullity of the marriage of 1851, judicially declared; and that the legitimacy of William John Manners and the other children born of the marriage between Lord Huntingtower and Miss Burke was never impeached until these proceedings began in August, 1880. During the twenty-one years which elapsed between the date of their marriage and the death of Lord Huntingtower, and for eight years after that event, Miss Burke occupied, before the world, the position of Lady Huntingtower, his lawful wife and widow, and their children, from the time of their birth, held the unchallenged repute and status of legitimacy.

 

But, however unfortunate that result might be, it is undoubted law that, if it be proved to your Lordships’ satisfaction, that Lord Huntingtower was married to the Petitioner in Scotland, and according to the law of Scotland, in the year 1844, his Lordship’s subsequent marriage to Miss Burke in 1851 was utterly void, and the issue of that marriage are illegitimate. To use the language of Lord Stowell in the well-known case of Dalrymple v. Dalrymple (1), “the first marriage, if it be a marriage upheld by the

 

(1) 2 Hagg. C. R. 129. [*535]

 

law of the country, can have no competitor in any second marriage which can by legal possibility take place; for there can be no second marriage of living parties in any country which disallows polygamy. There may be a ceremony, but there can be no second marriage; it is a mere nullity.”

 

The burden of proving the alleged marriage of 1844 rests, of course, upon the Petitioner; but I venture to doubt whether the onus, which is always incumbent on the party alleging an irregular marriage, is increased by the mere fact of the other spouse having subsequently thought fit to contract a regular marriage. If the Petitioner, immediately after his marriage with Miss Burkebecame known to her, had brought a suit against Lord Huntingtowerfor restitution of conjugal rights, and had, in that action, adduced evidence sufficient, apart from any question of second marriage, to prove her own marriage to Lord Huntingtower, I am disposed to hold that the same evidence would have been sufficient to sustain the validity of that marriage, as in a question with the innocent wife and children of the second. But the second marriage is, in all such cases, an important circumstance, which may, when taken in connection with the conduct of the party challenging it, give rise to a presumption against the reality of the first marriage; and it is a material fact in the present case, that these proceedings have been instituted by the Petitioner thirty-six years after the marriage which she seeks to set up, and nine-and-twenty years after Lord Huntingtower’s marriage to Miss Burke. It is obvious that, through the delay which has thus occurred, a great deal of testimony bearing on the alleged marriage of 1844, which would have been available seven or eight and twenty years ago, has been necessarily lost. The Petitioner’s counsel strenuously argued that the circumstances of his client have all along been such that neither she nor her son can be held responsible for that delay; but I cannot accept that argument. Even if their long inaction was owing to their misfortune rather than their fault, that seems to me to be a consideration of no relevancy in any question with the children of Miss Burke. Their legitimacy was never disputed, they had no notice of the claims now put forward by the Petitioner and her son, and had notice been given, it lay with the Petitioner and not with them to take the initiative. In these circumstances I am of opinion that the [*536] status which the wife and children of the regular marriage of 1851 have so long been permitted to enjoy without molestation, raises a strong presumption in favour of their legal right to that status, and casts a corresponding onus upon the Petitioner. Wherever the evidence leaves room for reasonable doubt your Lordships ought, in my opinion, to presume in favour of William John Manners, and against the Petitioner and her son Albert Edwin.

 

The number of cases similar to the present is, happily, not large; but, so far as I am aware, in no other case save one, to which I shall shortly refer, has the challenge of a marriage on the ground that the husband or wife was one of two living spouses of a previous marriage been long delayed. Of the cases cited at the Bar, in Pennycook v. Graite and Grinton (1), Dalrymple v. Dalrymple (2), and Longworth v. Yelverton (3), the challenge was brought immediately after the party alleging the first marriage came to know of the second; whilst in McGregor v. Jolly (4), a period of nearly two years was suffered to elapse. But in the case of Wright or Webster v. Wright, Trs. (5), Mrs. Webster, whose paternity was not in dispute, raised, after her father’s death in 1833, an action to have it found and declared that he had contracted an irregular marriage with her mother in Scotland about the year 1805. Her mother lived till 1833, but meantime, in 1815, nineteen years before her action was brought, her father had entered into a regular marriage by banns in England, of which issue were born. The late Lord Moncreiff, whose judgment was accepted by the Inner House, held that the proof led was insufficient, and his Lordship thus explains in his note the presumptions which he had, in the circumstances of the case, applied to its consideration. “The English marriage is a fact of very great importance in the cause, as bearing upon the reality of the proof, and affording presumptions both of fact and law against any equivocal, doubtful, or suspicious state of the evidence.”

 

The case of the Petitioner is that she and the late Lord Huntingtowermutually consented to take, and did accept, each other

 

(1) Mor. Dict. 12,677.

 

(2) 2 Hagg. C. R. 54.

 

(3) 4 Macq. 745.

 

(4) Court of Sess. Cas. 1st Series, vol. iv. p. 259; Rev. on app. 3 Wil. & S. 85.

 

(5) Court of Sess. Cas. 1st Series, vol. xv. p. 767. [*537]

 

as lawful spouses, in the presence of witnesses, within a cottage then occupied by his Lordship, in the neighbourhood of Edinburgh; and it is beyond dispute that such mutual acknowledgment by a man and woman, between whom no legal impediment exists, with the real and present purpose of becoming spouses, is of itself enough to constitute a marriage according to the law of Scotland. When the deliberate interchange of consent de præsentibefore witnesses has been fully proved, no further evidence is requisite, and no subsequent acts or declarations of the pair can make them other than married persons. As stated by Lord Eldonin the case of McGregor v. Jolly (1), “When you are satisfied that, according to the, law of Scotland, there has been actually a marriage between A. and B., no subsequent conduct is to be received in order to entitle you to say that that marriage, which has been actually had and actually celebrated effectually, is to be undone.” But in cases where there is not plena probatio of such an interchange of consent, or in the case of a ceremony being proved) but a doubt remaining quo animo it was gone through, it is competent to inquire into the subsequent conduct of the parties towards each other. And if it be found that they afterwards lived together and were habite and repute married persons, and it appear that their cohabitation was referable to the antecedent ceremony, these circumstances will be sufficient to establish that the ceremony was intended to constitute and did constitute ipsum matrimonium.On the other hand, if it be found that the subsequent behaviour of the parties was not consistent with their having contracted matrimonial relations, that will suffice to discredit the ceremony, and negative marriage.

 

It appears to me to be essential, in dealing with the evidence in the present case, to keep in view the fact that the Petitioner does not allege a marriage by habit and repute. The possibility of such a marriage is excluded by the circumstances of the case. The law of Scotland accepts the continuous cohabitation of a man and woman as spouses, coupled with the general repute of their being married persons, as complete evidence of their having deliberately consented to marry; but in order to sustain that inference their cohabitation must be within the realm of Scotland. Cohabitation

 

(1) Court of Sess. Cas. 2nd Series, vol. iii. at p. 189. [*538]

 

furth of Scotland will not constitute marriage, although it may be competently founded on either as corroborative evidence of a ceremony in Scotland, or as evidence that a ceremony proved to have taken place in Scotland was truly intended by the parties as a present interchange of matrimonial consent. Now the Petitioner and Lord Huntingtower were certainly not in Scotland, at the time the alleged ceremony took place, for more than a month – a period, in my opinion, short of what is required in order to establish a marriage by habit and repute: and any subsequent cohabitation had by them was in England. And, even assuming that the character of their cohabitation in England was such as would have warranted the inference of marriage if it had taken place in Scotland, the Petitioner can take no benefit thereby, unless she can shew that such cohabitation was distinctly referable to the alleged ceremony at Grecian Cottage. In my opinion, that ceremony is the leading fact which it lies upon the Petitioner to establish, and must be instructed by at least a substantial amount of reliable testimony, independently of inferences which may be drawn from cohabitation in England. To rest the conclusion that a ceremony must have taken place mainly, or in any material degree, upon such inferences, would go far to destroy the principle that a Scotch marriage cannot be derived from English habit and repute.

 

I shall now proceed to consider the evidence with the view of ascertaining how far it bears out the Petitioner’s allegation of a marriage in Scotland, per verba de præsenti. One striking feature of that evidence is that the Petitioner herself is the only witness to that which is alleged by her to have taken place at Grecian Cottage, Trinity, and almost the only witness who speaks to the relations subsisting between her and the late Lord Huntingtowerbefore and after their visit to Scotland in the year 1844. The parties to a declarator of marriage per verba de præsenti having now been, by the enactments of 37 & 38 Vict. c. 64, made competent witnesses, I see no reason why the direct and uncontradicted testimony of the person alleging the marriage, if corroborated to some extent by the indirect testimony of others, and supported by the facts and circumstances of the case, should not receive effect. But it will always be necessary, in a case of that kind, to test very strictly the statements given in evidence by a woman interested [*539] in establishing that she held and holds the honourable status of a wife, and not the degrading position of a mistress, and that her issue are lawful children and not bastards. And in that view, and as bearing upon the credit to be attached to the evidence of the Petitioner, the relations which subsisted between her and the late Lord Huntingtower, before her alleged marriage of July, 1844, appear to me to be matter of more than usual importance. When a marriage by habit and repute is sought to be established by a woman who admits, or against whom it is proved, that her cohabitation with her alleged husband began in illicit intercourse, that fact, as was held by this House, in the case of Cunningham v. Cunningham (1), raises a presumption against her, which can only be overcome by strong evidence of a change in the character of this cohabitation. That presumption has not been held to apply, and cannot apply with the same force, when the woman sets up a marriage by declaration of mutual consent before witnesses; but it is nevertheless an important question in this case whether it be the fact the Petitioner lived in concubinage with Lord Huntingtowerbefore they went to Scotland. The Petitioner denies that she did, but I have come to the conclusion that her statements upon this part of the case are inconsistent with the truth; and that conclusion compels me to regard her testimony, so far as uncorroborated, with suspicion.

 

The story which the Petitioner tells of her introduction to Lord Huntingtower, and of their mutual relations from that time until they met at Grecian Cottage is a very singular one. It would appear that the Petitioner, who had been in service at Bathwick Rectory, gave up her situation, in the end of the year 1843, and shortly thereafter became one of the inmates of a house at Southstoke, about five miles from Bath. It is needless to dwell upon the account given by the Petitioner of how she came to be there, which is in itself far from satisfactory; but, assuming it to be true, the inference is that she must have been inveigled thither by Lord Huntingtower, upon the false representation that she had been engaged as a servant by his mother, Lady Dysart. What occurred there according to her statement is, – that Lord Huntingtowerprofessed an ardent affection for her, which she did not

 

(1) 2 Dow. 482. [*540]

 

reciprocate, that she fled to her own room, in order to avoid his importunities, – that his Lordship followed, committed a violent and cruel rape upon her person, and, after his vile purpose had been effected, tried to soothe her by promises of marriage. At first, the Petitioner would listen to no terms of compromise; but, eventually, all means of escape from the house having been cut off, she accepted his renewed offers of marriage, but refused to have intercourse with him until she became his lawful wife. And the Petitioner solemnly asserts that Lord Huntingtower made no second attempt to have connection with her, and that she maintained her chastity inviolate until she had gone through a ceremony of marriage in Scotland, upon the faith of which she, for the first time, voluntarily submitted to his embraces.

 

My Lords, it is a remarkable fact that, even in these circumstances, this injured woman should not, the moment she was at liberty to leave Southstoke, have placed herself under the protection of her natural guardians, until such time as Lord Huntingtowerwas ready to fulfil his promises of marriage. Instead of that she went straight to London, to meet the man who had outraged her, and thenceforward lived in his company at hotels, and in various lodgings taken by him for his own and her accommodation. It is also significant that, from the time she joined Lord Huntingtowerin London, the Petitioner discarded her maiden name of Elizabeth Acford, and they passed at their different residences for man and wife, being generally known as Mr. and Mrs. Tollemacheor Talmash. They must, according to the Petitioner’s own account, have continued to live together in this fashion for at least four months before they went to Scotland in the summer of 1844. And it does not, in my opinion, detract from the significance of these circumstances that, during that period, the Petitioner twice paid a visit to her parents at Bideford, and as often returned to Londonin order to resume her former course of life as Mrs. Talmash.

 

Notwithstanding the suspicious character of their cohabitation, as evidenced by her own statements, the Petitioner, in her examition-in-chief, took every possible occasion to reiterate the assertion that she had no intercourse with Lord Huntingtower. But, on cross-examination, the Petitioner was not only driven to admit that Lord Huntingtower paid visits to her bedchamber during the [*541] night, but declined to negative the suggestion that he had also been in bed with her. From these circumstances, my Lords, it appears to me that only one inference can be drawn by a Court of law, that inference being that, during the period in question, the Petitioner cohabited with Lord Huntingtower as his mistress.

 

That such was really the footing upon which the Petitioner lived with Lord Huntingtower until July, 1844, derives strong corroboration from the evidence of the witness Mrs. Steggall, formerly Mrs. Kenrick. The Petitioner’s testimony is to the effect that Mrs. Kenrick knew her position to be that of a chaste single woman, and was also aware of Lord Huntingtower’s intention to make her his lawful wife; that she was actually a boarder in Mrs. Kenrick’s house at the time when Lord Huntingtower went to Scotland; and that Mrs. Kenrick overcame her virtuous scruples; persuaded her to go to Scotland for the purpose of being married; and saw her safely on board the steamship Clarence, which conveyed her to Granton. Now, Mrs. Steggall states positively that the Petitioner was only known to her as Mrs. Tollemache, and that, on the very first occasion of their meeting, Lord Huntingtower introduced the Petitioner to her by that name, and at the same time explained that they had been married in the country only two or three days before he came up to London. No doubt the witness also stated that, at this distance of time, her memory does not retain all that occurred in the year 1844; and her answer to numerous questions put to her, with regard to the allegations of the Petitioner, was non memini. But I see no reason to doubt that the testimony of Mrs. Kenrick, so far as given affirmatively, is reliable; and whilst that testimony is, in all respects, consistent with the probabilities which the Petitioner’s own evidence suggests, it appears to me to exclude the idea that the Petitioner was leading the virtuous life of a single woman, waiting for admission to the honourable state of marriage.

 

After some months thus spent in London and its vicinity, it seems to be an undoubted fact that Lord Huntingtower did go to Scotland, and take up his residence at Grecian Cottage, Trinity, near Edinburgh, and that the Petitioner followed him. Why they should have gone to Scotland, as the Petitioner says they did, for the purpose of getting married there, is a problem of which, in my [*542] opinion, no intelligible solution has either been given by the Petitioner, or suggested in argument. According to the Petitioner, Lord Huntingtower was always ready and willing to marry her in England, either in facie ecclesiæ or before a registrar; and if that statement be true, it is not easy to discern any sufficient cause for resorting to a marriage in Scotland. The reasons assigned by the Petitioner are not very consistent. At one time she says that her wretched state of health, occasioned by the brutal conduct of Lord Huntingtower at Southstoke, was the only obstacle to their union; but it is hardly credible that a woman, who was able to move about from place to place in London and its vicinity, and to pay visits in West Devonshire, should be incapable of going through the ceremony of marriage. At other times she says that the delay of their nuptials was owing to the dilatoriness of Lord Huntingtower, a reason which has at least the merit of greater probability than her own ill health. The suggestion, for it is no more, that Lord Huntingtower wished the marriage to be kept secret, or at least desired to avoid the interference of his family, appears to me to be equally unsatisfactory. His Lordship, at that time, was not only living in entire independence of family control, but, if there be any truth in the Petitioner’s evidence, he informed his mother, Lady Dysart, that the marriage was about to take place; and, after it did take place, he at once made it known to his relatives and friends that the Petitioner had become his wedded wife. There is, so far as I can see, nothing in the evidence adduced for the Petitioner, to warrant the inference that Lord Huntingtowereither intended to conceal their alleged marriage, or that he had any motive for its concealment. On the contrary, it is of the essence of the case which the Petitioner has stated, and has endeavoured to substantiate, that, after their return to England, Lord Huntingtower and she were habite and repute married persons.

 

On her arrival at Granton, in the steamer Clarence, the Petitioner was met by Frederick Spicer, his Lordship’s valet, and by him escorted to Grecian Cottage. What is said to have taken place there, between her and Lord Huntingtower, is very minutely detailed in the Petitioner’s own words; but these have been so recently read by my noble friend (Lord Blackburn) that I shall [*543] not repeat them. The alleged ceremony was twice performed, first before Frederick Spicer, and then before Spicer and Margaret Ritchie, the only difference being that, on the second occasion, Lord Huntingtower read, in the hearing of the witnesses, a letter from his mother, Lady Dysart, calling him “a gull” for having taken his wife to Scotland, and intimating that he must in future call the Petitioner his wife, and that he “could never marry again.” After these formal exchanges of matrimonial consent, the Petitioner says they lived together as married persons, – “We cohabited together as man and wife from the hour he made me his wife, by saying these words in the presence of his servants.”

 

My Lords, if it be the fact that the ceremony thus narrated was actually performed, and that she did at the time rely upon it as constituting marriage, there can be no doubt that the Petitioner thereby became the wife, and is now the widow, of Lord Huntingtower, according to the law of Scotland. Whether Lord Huntingtower did or did not contemplate that result is immaterial. “For,” to use again the words of Lord Stowell in Dalrymple v. Dalrymple (1), “surely it cannot be represented as the law of any civilized country, that in such a transaction a man shall use serious words, expressive of serious intentions, and shall yet be afterwards at liberty to aver a private intention, reserved in his own breast, to avoid a contract which was differently understood by the party with whom he contracted.”

 

My Lords, Frederick Spicer is dead, and Margaret Ritchie is also dead, so that the Petitioner has had the opportunity of giving her own version of what occurred within Grecian Cottage, Trinity, in July, 1844. But the very graphic and circumstantial account which the Petitioner has given before this committee of the ceremony by which it is alleged that she and Lord Huntingtowerexpressed, before witnesses, their mutual and present consent to marry, when compared and contrasted with the accounts which the Petitioner herself afterwards gave of her marriage, has satisfied me that no such ceremony ever took place, and that the idea of a ceremony is an afterthought of very recent origin.

 

It is necessary to bear in mind that, according to the Petitioner’s account, Lord Huntingtower, at the time when he communicated

 

(1) 2 Hagg. C. R. at p. 107. [*544]

 

to her his project of taking a house in Scotland, and getting married there, explained the Scotch marriage laws to her. She says, “He explained them to me in this way. He said if we went to Scotland, and made a vow before witnesses that we intended to become man and wife, that would be a legal marriage.” The Petitioner must therefore have expected, when she went to Scotland, that she would there be made the wife of Lord Huntingtower by means of some such ceremony as that which she describes, and she emphatically states that, as soon as the ceremony before Spicer was over, she “was satisfied,” adding, “I considered myself from that hour to be the wife of Lord Huntingtower, honourably so; and I am sure I never had any doubt upon it. I felt that it was right and proper, because he had told me so; and then I made inquiries privately, unknown to him, and I was told also that it was a legal marriage.” Assuming it to be true that, in consequence of Lord Huntingtower’s explanations, and as the result of her private inquiries, she did honestly believe that the ceremony at Grecian Cottage was effectual to constitute a Scotch marriage, and that she did, in reliance upon it, surrender her person to the man whom she had thereby taken for her husband, one can hardly conceive that the Petitioner should afterwards have claimed the position of wife upon any other ground. Yet, as I read the evidence, it is the fact that, after they left Scotland, on occasions when it would have been of the last consequence to establish her marriage with Lord Huntingtower, she did not think fit to divulge that ceremony before witnesses, but alleged a marriage by living with his Lordship in Scotland, and by subsequent repute or acknowledgment. And it appears to me to be also proved, by her own testimony, that she remained silent in regard to that ceremony during all the time that Frederick Spicer and Margaret Ritchie, the witnesses to its performance, were alive and accessible.

 

After their return to England, Lord Huntingtower seems to have continued in cohabitation with the Petitioner for upwards of three years, three daughters being the result of their connection during that period. The third of these children was born on the 14th of January, 1848, and, as I understand her statements, which are not very precise as to dates, shortly after that event, Lord [*545] Huntingtower quitted the society of the Petitioner, leaving her and her offspring destitute. In her extremity, the Petitioner applied for assistance to Lady Dysart, who for some time made her an allowance of £5 per month. In a letter written by her to Lady Dysart, bearing date the 5th of February, 1849, the Petitioner, after acknowledging a letter from her Ladyship, containing a remittance of that amount, thus proceeds:–

 

You say, Madam, in your letter that you should like to know what his Lordship’s letters contains that is of importance to me – the all till that he as acknowledge me as his wife by living togeather as such in Scotland- from that time in the year 1844, he gave me his name, and introduces me as his wife two every one, he himself has had all three of the children registeredin the name of Tollemache, and I always considered myself a married woman from that time.

 

Not one word about an antecedent ceremony before witnesses. On the contrary, the Petitioner rests her not very confident assertion of a marriage upon their cohabitation in Scotland, followed by acknowledgments of her marriage in England. It is suggested by the Petitioner that these statements were merely intended by her to set forth in general terms the fact that a marriage had taken place according to the law of Scotland. If so, it is a singular thing that the writer, who had made private inquiries regarding the law of Scotland, should have selected words expressive of a well-known mode of contracting marriage in that country; and it is equally singular that these words should have been addressed to a lady who, according to the Petitioner’s own statement, knew that she was married to Lord Huntingtower before their “living together” in Scotland had well begun, and that there should be no allusion whatever to the ceremony, or to that important letter from Lady Dysart to her son, which is said to have been read on the occasion of the ceremony, in the presence and hearing of the two persons who witnessed it.

 

Lady Dysart’s bounty ceased after a time, and the Petitioner and the children then became chargeable to Lambeth Union. A Mr. Jarrett, one of the relieving officers, took an interest in them, and made outlays for their maintenance to the extent of £190, which he sought to recover from Lord Huntingtower, on the footing that the Petitioner was his wife. The action, which was tried in 1853, failed, but it is clearly apparent that the information upon [*546] which the suit was brought was furnished by the Petitioner, who, in cross-examination, gives this account of it:

 

Did you hear, about that time, anything said about your having been married to Lord Huntingtower by habit and repute? – Yes.

 

You heard that? – Yes, every one acknowledged that.

 

About your having been held out as his wife to people in Scotland? – Yes.

 

That is what they wanted to prove, is it not? – Yes, I believe so, in order for Jarrett to get his money.

 

According to the Petitioner’s statement, Mr. Jarrett and his solicitors were in communication with Frederick Spicer and Margaret Ritchie; but her own evidence makes it to my mind clear that they were referred to merely as persons capable of proving habite and repute in Scotland, and not as witnesses to the ceremony which she now alleges.

 

Some years afterwards, apparently about 1860, the Petitioner was in frequent communication with a gentleman of the name of Welch, a friend of Lord Huntingtower’s, who used frequently to give her money from his Lordship. The Petitioner says she informed Mr. Welch that she, and not Miss Burke, was the lawful wife of Lord Huntingtower; and this is her own account of the information which she so gave:

 

Had you told Mr. Welch before this date that you had become Lord Huntingtower’s wife by living in Scotland with him? – Yes.

 

Did you say to him that you had contracted a marriage by living with Lord Huntingtower for a fortnight in Scotland? – I never said a fortnight; it was more than that we were there.

 

A fortnight or three weeks? – I might have said that, but it was over that time.

 

Again, on the occasion of the trial at Maidstone in 1865, the Petitioner admits that, when examined as a witness, she did not say a word about the ceremony before Spicer; but her omitting to make mention of the ceremony at that time is not of much consequence, in my opinion, because the Petitioner was then suing as a single woman, and it does not appear that she then asserted any claim to the position of Lord Huntingtower’s wife.

 

There is one more passage in the Petitioner’s evidence bearing upon this matter of the ceremony, to which I must refer. At the time when she was deserted by Lord Huntingtower, and subsequently, for a considerable period, the Petitioner lodged with [*547] Miss Pottle in Kennington Lane, and she stated that she told her landlady all about her marriage in Scotland. The Petitioner then states as follows:

 

Did you describe to her (Miss Pottle) the ceremony that was performed? – No, I did not tell her, that I know of.

 

Afterwards, did you tell Mr. Jarrett about this ceremony? – I think I did.

 

You now what I mean by the “ceremony,” the declaration? – Yes, by which the arrangement was made for me to become his wife.

 

That is to say, the declaration before Spicer and Margaret Ritchie? – Yes, I think I did.

 

You told them all about that? – I told them all about that.

 

Is it not the fact, Madam, that you have said all along that you were married to Lord Huntingtower by having lived with him for a fortnight or three weeks in Scotland? – I never stated any time. I said “I lived with him to become his wife in Scotland.”

 

Have you not stated several times to different people that the way in which you became his wife was by living with him for some time, or for a short time, in Scotland? – I dare say I have done so.

 

Did you ever say anything about this ceremony? – Yes.

 

To whom? – I told my friends so.

 

Will you give me some of their names? – I told my mother.

 

Anybody else? – I told my sister.

 

Your sister? – My married sister.

 

Anybody else? – I dare say a number of people. I dare say I might have done. Mrs. Kenrick was fully aware of it too. They received letters from Lord Huntingtower.

 

I cannot regard that as a straightforward truthful statement. The most favourable construction for the Petitioner which I can put upon it is, that the Petitioner having begun by first “thinking,” and then boldly asserting that she told Mr. Jarrett, and some other person whom she does not name, all about the ceremony, then goes on to admit her having stated all along that she was married by living in Scotland with Lord Huntingtower, and that, so far as she can recollect, the only persons whom she told about the ceremony were her mother and her married sister, although she may also have spoken about it to some people whom she has forgotten.

 

My Lords, I cannot in these circumstances believe that the alleged ceremony of marriage at Grecian Cottage, Trinity, ever took place. When she and her children are starving in 1849, though anxious to satisfy Lady Dysart that she had become the lawful wife of Lord Huntingtower, she says nothing about it. [*548]

 

When her friend and benefactor, Mr. Jarrett, is attempting, in 1853, to recover from Lord Huntingtower his advances made for her support, she says nothing about it, and though both Spicerand Richie were then alive, leaves Mr. Jarrett to allege and fail in proving a marriage by habit and repute. She seems to have reserved the ceremony as a foundation for claiming the honours of Dysart and Huntingtower on behalf of her children, and to have confided it, in the meanwhile, to no one except her mother, a married sister, and possibly to some other persons unknown.

 

There having been, according to the view which I take of the evidence, no ceremony of marriage in Scotland, the Petitioner’s case entirely fails. But I think it right to advert to the mutual relations which subsisted between Lord Huntingtower and the Petitioner, subsequent to her arrival at Granton in 1844, which do not appear to me to be calculated to suggest that they were married persons.

 

It seems to be established that, from the time the Petitioner went to Scotland, Lord Huntingtower continued to live in her society, until he left her at Miss Pottle’s lodgings in 1848. After that date they never lived together. The Petitioner understood that Lord Huntingtower went to America, shortly after he left her; and at all events she did not see him until after the celebration of his marriage with Miss Burke. In 1854, a deed of covenant was executed, under which an annuity of £60 was settled by Lord Huntingtower upon the Petitioner; and in 1857, a deed of agreement was entered into, by which his Lordship obtained the custody and undertook the education of their children. The Petitioner was a party of both these deeds, in the character of spinster, and under her maiden name of Elizabeth Acford. The Petitioner had various interviews with Lord Huntingtower before, and also at the time when the first of these deeds was executed; but from that time they never met until shortly before the date of the second deed, when the Petitioner states that he began to visit her occasionally, and have intercourse with her, and that he continued to do so until 1863, when their intercourse finally ceased. According to the Petitioner two children were the fruits of this intercourse, the one a boy, who was born and died in the year 1858, and the other her infant son Albert Edwin, born on the 15th of [*549] February, 1863. It may be doubted whether, on the assumption that the Petitioner was married, the evidence is sufficient to establish that Albert Edwin owes his paternity to Lord Huntingtower; but that is a point which it has become unnecessary to decide.

 

The Petitioner alleges in her case that, after the ceremony at “Grecian Cottage,” “the Petitioner and the said Lord Huntingtowercohabited together as husband and wife, and were habit and repute husband and wife.” That allegation cannot apply except to the period of three years and upwards during which they did cohabit. It can have no application to the time when Lord Huntingtoweris supposed to have been in America, or to the period following his marriage in 1851. Even when so limited, the allegation appears to me to have been made either upon an erroneous estimate of the evidence which the Petitioner was about to lead, or under a misapprehension of what constitutes habit and repute according to the law of Scotland. In justification of these remarks, I cannot do better than refer to the definition given by Lord Westbury in the Breadalbane marriage case, Campbell v. Campbell (1) of that which constitutes habit and repute in the marriage law of Scotland. His Lordship says, “It is the holding forth to the world by the manner of daily life, by conduct, demeanour, and habit, that the man and woman who live together have agreed to take each other in marriage, and to stand in the mutual relation of husband and wife; and when credit is given by those among whom they live, by their relations, neighbours, friends, and acquaintances, to these representations and this continued conduct, then habit and repute arise and attend upon the cohabitation.”

 

I am unable to find aught in the conduct of the parties, subsequent to the alleged ceremony, which can satisfy the definition which I have just cited. Taking the Petitioner’s own statement, there was nothing in the manner of their life to indicate to the world that their relations to each other had undergone any change. At hotels, and in the lodgings which they occupied, they were still known, as they had previously been, as Mr. and Mrs. Talmash; but, whilst Mr. Talmash was in the constant habit of visiting his relations and friends, in his proper character and under his proper title of Lord Huntingtower, Mrs.

 

(1) Law Rep. 1 H. L., Sc. at p. 211. [*550]

 

Talmash never accompanied him on any of these occasions. According to her own evidence, the Petitioner had no personal acquaintance with the members of his Lordship’s family, or with the friends and intimates of the Dysart family, and was never received or recognised by them as the wife of Lord Huntingtower. There is no reason to doubt that the Petitioner was present, as Mrs. Talmash, on the occasion of entertainments given by Lord Huntingtower, as Mr. Talmash, to some of his bachelor acquaintances, who were, probably, not very fastidious in the selection of their company, when the ladies of their own family were not present. But, during the whole course of this so-called habit and repute, the Petitioner was never introduced to a female relative of these persons; and, so far as I can find, she never paid visits to, or was visited by, a respectable female friend of Lord Huntingtower, unless it were Mrs. Kenrick, whose acquaintance with her as a married woman commenced, unfortunately, before they had been in Scotland.

 

The position and conduct of the Petitioner, during the long term of years which followed her desertion by Lord Huntingtowerin 1848, so far from supporting, is subversive of the theory of a previous marriage. After 1848 there could be no habit and repute, because there was no matrimonial cohabitation, which is the only foundation upon which habit and repute can rest. And after the 26th of September, 1851, the status and repute of wife attached exclusively to the lady who upon that day was married, in facie ecclesiæ, to Lord Huntingtower. So far as the written evidence goes, it proves that, after her desertion in 1848, the Petitioner wrote to Lady Dysart as Elizabeth Ackland. She says, no doubt, that Lady Dysart refused to correspond with her if she took the name of Tollemache or Huntingtower, and requested that she should take the name of Ackland, as being nearest her maiden name of Acford; but that assertion is plainly contradicted by a contemporaneous writing under the Petitioner’s hand. Then, after Lord Huntingtower’s marriage to Miss Burke, the letters written to her by Lord Huntingtower are all addressed to her in her maiden name. And, what appears to me to be of much more importance, the Petitioner in the year 1854, as Elizabeth Acford, became a party to the execution of a formal deed of covenant, [*551] which sets forth in express terms that she had illicit cohabitation with Lord Huntingtower for some time previous to the year 1849, and that such cohabitation had wholly ceased at or about the middle of the year 1848. The Petitioner held by that deed, and either received or recovered by legal process from Lord Huntingtowerthe annuity payable to her under it, until his Lordship’s death in 1872, after which she preferred her claim against his estate. Again, the Petitioner, on the 14th of December, 1859, wrote to Lord Huntingtower in these terms: “Huntingtower, if you will give me £1000 I can get married in a month, and in case the man might do as you have done, leave me to the mercy of the world, I will thank you to have it all made over to myself, so that I may do with it as I think fit.” This application was unsuccessful, and two months afterwards, upon the 12th of February, 1860, she wrote to Mr. Welch: “With reference to the subject that I were speaking with you upon, I beg to repeat that I can get married immiately (sic.), and will do so if Lord Huntingtowerwill give me £500.” These two letters speak for themselves, and require no comment.

 

It is true, no doubt, that the Petitioner states that she subscribed the deed of 1854 under the pressure of poverty, and in the belief that it could not do away with her marriage; and she likewise explains that her letters to Lord Huntingtower and Mr. Welch about getting married immediately, were not seriously intended, but were written “in a playful manner.” It would, in any case, require something more than the unaided testimony of the Petitioner to explain away the obvious meaning of writings such as these; and it appears to me to be impossible, in the present case, to receive the improbable explanations which she gives in order to make the facts tally with her own story. The Petitioner can hardly expect to be permitted to corroborate her own tale, by herself explaining away or contradicting all the evidence which conflicts with her testimony.

 

Thus far, the history of the relations between Lord Huntingtowerand the Petitioner after the alleged ceremony at Grecian Cottage is decidedly unfavourable to the Petitioner; and it is right that I should now advert to certain parts of the evidence, which were, with great moderation and propriety, pressed upon [*552] your Lordships by the Petitioner’s counsel, as supporting her credibility, and as tending to shew that a marriage did take place in Scotland between her and Lord Huntingtower. These depositions, strictly speaking, belong to the legal category of acknowledgments of marriage, rather than to that of habit and repute.

 

First of all comes the acknowledgment by Lord Huntingtowerthat the Petitioner was his wife, made to Horne, the policeman, at Grecian Cottage. The words which Lord Huntingtower is said to have used on that occasion are these:– “She knows very little of Scotland yet, we are here on our marriage tour.” He did not say that they had come to Scotland to be married, or that they had just been married in the cottage where the conversation with Horne took place. On the contrary, the words used were plainly calculated to convey the impression that, having been married elsewhere, they had come to Grecian Cottage in the course of their marriage jaunt; and they are very like a repetition of the statement previously made by Lord Huntingtower to Mrs. Kenrick, to the effect that they had been married “down in the country” before they first came to London.

 

Then there are acknowledgments by Lord Huntingtower at hotels, and at a linendraper’s shop in Dover, not that there had been a marriage in Scotland, but that Mrs. Talmash, by which name the Petitioner then went, was his wife. It is needless to say that such acknowledgments are valueless as evidence in a question like the present, and are per se not more conclusive of marriage than of concubinage. When a man takes his mistress with him to an hotel, or goes with her to a shop to buy baby linen, the probability is that he will prefer describing her as his wife to explaining her true position.

 

For reasons somewhat analogous, the statement made by Lord Huntingtower to General Harrison in 1847 does not appear to me to be of any importance, and if it were, the Petitioner is placed in this dilemma, that if she admits the truth of that statement and founds upon it, she must necessarily admit that her own statement on oath, as to the rape committed at Southstoke, is false.

 

By far the strongest fact proved in the Petitioner’s favour, according to my view of the case, is the registration by Lord Huntingtower, in January, 1847, of the birth of their daughter [*553] Elizabeth Frances, as the lawful child of W. L. Talmash and Elizabeth Talmash, formerly Acford. It does not rest on the testimony of the Petitioner; but it is only a single isolated incident in a long course of events with which it is not easily reconcilable; and it dwindles to the very smallest scintilla, when contrasted with the mass of evidence to which it is opposed.

 

I think it is proper, in this connection, to refer to the plea stated by Lord Huntingtower in the action brought by the Petitioner for a quarter’s annuity due to her under the deed of 1854, which was tried at Maidstone Assizes in the year 1865, and which may be regarded as part of the res gestæ. The evidence discloses certain painful circumstances which readily suggest the motive which prompted Lord Huntingtower, at that time, to meet the action raised by the Petitioner, in the character of his discarded mistress, with the defence that she, and not Katherine Burke, Lady Huntingtower, was his lawful wife. How that scandalous proceeding can assist the Petitioner in her present contention, I fail to comprehend. She resisted the plea in defence, as a mere pretext for defeating her just claims under the deed of 1854; and eventually – Lord Huntingtower having withdrawn the allegation, which he ought never to have made – she obtained decree for the termly payment then due to her in respect of her illicit intercourse with Lord Huntingtower, which had terminated in the year 1848.

 

Another point fairly urged in behalf of the Petitioner was, that Lord Huntingtower forcibly took from her his letters which she had carefully preserved, as affording evidence that they had been married in Scotland. I do not doubt that, in an action for setting up that marriage, instituted before September, 1851, that fact, if proved, would have laid a heavy onus on Lord Huntingtower; and I am disposed to hold that, if satisfactorily proved now, it would entitle the Petitioner’s testimony to a somewhat more favourable consideration at your Lordships’ hands. But the alleged abstraction of these letters rests upon the single testimony of the Petitioner, and does not appear to me to be satisfactorily proved, or proved at all. The important letters were obviously and necessarily those which the Petitioner had received from Lord Huntingtower before his desertion of her in 1848, and her account [*554] is that, about the time of her confinement, on the 14th of January, 1848, he took from her the whole of the letters then in her possession, burnt some in her presence, and carried away the rest, which she never saw again; then on the very day he finally left her at Miss Pottle’s, she says that Lord Huntingtower broke open her dressing case, and took away all the letters he had written to her after the 14th of January, 1848. I am unable to give the slightest credit to these statements, when I find the Petitioner, on the 5th of February, 1849, some months, after their alleged abstraction and partial destruction, in a letter to Lady Dysart, expressing her willingness to give up these very letters, and giving a description of their contents; and, if the description so given was according to the truth, which I see no reason to doubt, they would not have aided, but would have contradicted the case which the Petitioner has now endeavoured to make, and it is to that fact, and not to any act of Lord Huntingtower’s, that I feel constrained to attribute their non-production in these proceedings. Nor am I able to accept the Petitioner’s statement that in 1854 she gave up to Mr. Shephard “dozens of letters,” such as a “husband would write to his wife,” because it is perfectly plain that they did not correspond on these terms, in the interval between her desertion in 1848 and the date of the deed of 1854.

 

It is also to be observed, in fairness to the Petitioner, that, from the time she was deserted by Lord Huntingtower in 1848 until she subscribed the deed of covenant of 1854, she did not cease to maintain that she was the lawful wife of Lord Huntingtower, although she did not take any judicial steps for the vindication of her rights. That is a circumstance favourable to the conclusion that she did at one time entertain the belief that she was married to Lord Huntingtower. But her belief during that period was founded upon the notion that living together for three weeks in Scotland, followed by cohabitation in England, and the kind of acknowledgments to which I have already referred, was sufficient to constitute a marriage, and, accordingly, she asserted her marriage upon these grounds alone. Had the Petitioner’s testimony in the present case been to that effect only, whilst holding that she was under error as to the law of Scotland, I would, at least, have given her credit for having spoken the truth. [*555]

 

My Lords, such being my views of the evidence, I have come without difficulty to the conclusion, not that the Petitioner’s proof has fallen short of what the law requires, leaving a suspicion that there may be some foundation for her story, but that it completely disproves the allegation of a marriage between her and the late Lord Huntingtower.

 

I have only to add that, in my opinion, the Petitioner, William John Manners, has fully established his right, as the only son and heir of line of the late Lord Huntingtower, to the vacant titles, honours, and dignities of Earl of Dysart and Lord Huntingtowerin the peerage of Scotland.

 

LORD SELBORNE, L.C.:–

 

My Lords, it is a satisfaction to me to have heard the opinions of my noble and learned friends on the effect of the evidence in this case, which relieve me from the necessity of doing more than shortly to express my agreement with them.

 

If the statements of Elizabeth Acford as to the promises and declarations of Lord Huntingtower before the visit to Scotlandwere to be taken as true, I could myself draw no other inference from them than that Lord Huntingtower did not intend, in Scotlandor elsewhere, to contract a legal or binding marriage with Elizabeth Acford. He was his own master, and was evidently quite independent of all moral or other control of his parents. There was nothing whatever to prevent him from marrying in England, either in church or in the registrar’s office (as Elizabeth Acford says he talked of doing), except the fact that any such marriage would have been legal and binding. Having, according to the evidence, gone to Scotland on no other business, the shortest, easiest, and best known way of contracting a Scotch marriage from England at that time, would have been by going to Gretna Green; but there, also, a record of the marriage would, I believe, have been preserved, and there could have been no subsequent escape from it. The motive of avoiding such irreconcilable offence to his parents as a marriage of this kind might give, may have been a powerful reason why he should not contract it: and it is evident to me, from the letter to Lady Dysartof the 5th of February, 1849, to which both my noble and learned [*556] friends have adverted, that this motive did operate upon the mind, not of Lord Huntingtower alone, but of Elizabeth Acford also. But the statements to which Elizabeth Acford has pledged herself, are such as to make it impossible for her to allege secrecy as the reason for resorting to an irregular Scotch marriage rather than a marriage in England. For it is a part of her evidence that Lord Huntingtower told her he was furnished by his mother with the money necessary for this journey to Scotland; that he communicated to her its purpose, and the fact of the marriage, which is said to have been its result; and that he read to Elizabeth Acford, and before his servants, a letter from his mother referring to that marriage and to its effect, as making it impossible for him ever afterwards to marry anyone else.

 

I agree with my noble and learned friends who have addressed your Lordships, that if words importing a contract of marriage de præsenti had been interchanged, as alleged, with a serious purpose of marriage on the part of Elizabeth Acford, and with a secret purpose of deception on Lord Huntingtower’s part, he could not have been permitted to set up his own fraud to nullify that contract. But, in order to arrive at the conclusion that there were any such mutual declarations with any such intention or understanding on either side, it is necessary that the statements of Elizabeth Acford should be believed. If I am led by what she states as to the previous words and conduct of Lord Huntingtower, to a clear conclusion that he did not intend to constitute a marriage by what took place in Scotland, I am equally led by the whole course of her own subsequent life and conduct to a not less clear conclusion that Elizabeth Acford also never really understood or believed that a marriage had been constituted by what then took place. Even if there were nothing else to discredit her testimony, I should myself think it right to rely upon the conclusions which I draw from her life and acts – from what she did and what she did not do – rather than upon the account which now, after the lapse of thirty-eight years, and after having been well instructed in the Scotch law of irregular marriage, she, and she alone, gives of the words said to have been spoken at Grecian Cottage in July, 1844. During the years which followed her first desertion by Lord Huntingtower in 1848, and his marriage to Miss [*557] Burke in 1851, she was in very frequent communication, not only with other persons able and willing to befriend her, but with several solicitors: more than one action was brought, in which proof of the facts now alleged by her would have been extremely important, and could not have been difficult if those facts had really occurred. The persons in whose presence she alleges the Scotch marriage to have been contracted and acknowledged, and others who could have corroborated that story, if true, were not only then living, but were in actual communication with the solicitors of those who took up her cause, and who were interested in the proof of her marriage. All the evidence which those persons could give was then known, and, nevertheless, Jarrett’s action failed; and no attempt was made to claim for her the status and rights of a wife by any proceeding in the matrimonial Court of this country. She contracted, as a single woman, with Lord Huntingtower through the agency of solicitors who must have known all the facts, she wrote letters in which she professed to contemplate the use of her freedom to contract marriage with any other person, if Lord Huntingtower would agree to certain pecuniary conditions.

 

Your Lordships have sufficiently adverted to the strong evidence afforded by the letter to Lady Dysart of the 5th of February, 1849, and to other proofs, that whenever she thought it expedient to talk about a Scotch marriage, either to extract pecuniary help from Lord Huntingtower’s family, or for any other reason, she used language pointing to mere cohabitation as husband and wife in Scotland (or, speaking technically, to “habit and repute”) and not to any contract per verba de præsenti; and I hold it to be impossible that she could have done so, if the words, now alleged to have been spoken, had been actually spoken, with the intention, belief and understanding on her part that she and Lord Huntingtower then and thereby actually, and antecedently to any matrimonial cohabitation, became husband and wife.

 

I cannot but add that her positive statement that Lady Dysartin 1848 suggested to her the assumption of the name of Acklandinstead of Acford is clearly disproved by a letter to Lady Dysartunder her own hand, which she attempted to repudiate, though the identity of the handwriting with that of her other letters is [*558] unquestionable. This incident may not, in itself, be of much importance; but the untruth can hardly have been without a motive; and it would have been strange if Lady Dysart had really suggested the use of another name, instead of Acford, believing her to be unmarried.

 

A still more important contradiction to the whole story which she tells as to the original circumstances of her connection with Lord Huntingtower appears to me to be contained in the same letter to Lady Dysart (of the 5th of February, 1849), which has been so often referred to. She there says:– “He has often said, if I did not feel quite safe, he would take me to an English church and make me his wife openly, as he could not be happy without me; but that he should be discarded by his family, but that he did not mind. But, out of feelings to his noble family and birth, I did not wish him to do so; as I have often told him, if he had married a lady in his own sphere, it would have been a comfort to himself and friends; but this I could not persuade him, both beforeand since the fatal occurrence that took place between us.” To these words, “the fatal occurrence,” only one meaning can be attached. She therefore here represents that before as well as after Lord Huntingtower had prevailed over her virtue, she endeavoured to persuade him to make a marriage suitable to his rank – a representation which I cannot very easily reconcile with her present evidence as to what took place at Southstoke. But this is not all; the letter proceeds thus:– “If I had studied my own interest and future respectability more than I did in that case, I should now have been a happy woman. I could not bear the thought of one so noble as himself to share the fate with one so humble, if his family should discard him.” I forbear saying more as to this passage, than that I think it could not possibly have been written by any women who had not been (by some means) prevailed upon to consent to an intercourse which she knew to be illicit; that it seems to me absolutely irreconcilable with the story now told of brutal violence and ineffectual resistance in the first place, and absolute non-intercourse from that time forward, till the connection had become lawful by a ceremony understood and intended to have, and legally having, the effect of marriage in Scotland. [*559]

 

The case, therefore, of the opponent having failed, it only remains that I should move your Lordships, as I now do, to resolve that the Petitioner William John Manners has made out and established his right to the dignities of Earl of Dysart and Lord Huntingtower, in the peerage of Scotland, as claimed by his petition.

 

The same was agreed to.

 

The said resolution was subsequently reported to the House, and it was agreed to, and resolved and adjudged accordingly; and resolution and judgment to be laid before Her Majesty by the Lords, &c.

 

Lords’ Journals, March 7 and 8, 1881.