Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION V.

Proved, or not proved.
Subject_3 SECT. V.

Marriage.

Pennycook and Grinton
v.
Grinton and Graite

Date: 15 December 1752
Case No. No 578.

A promise of marriage, followed by a copula, makes a lawful marriage de præsenti, and the after marriage of either of the parties is void.

Click here to view a pdf copy of this documet : PDF Copy

John Grinton, a tenant, made proposals of marriage to Alison Pennycook, and obtained her consent. Upon receiving repeated promises of marriage, she permitted him to have knowledge of her body oftener than once; by consequence of which, in July 1747, she bare a son, whom he acknowledged to be his, and presented to the minister of the place to be baptized. After this, John Grinton declined to adhere; upon which, in 1748, Alison Pennycook commenced a suit against him before the Commissaries of Edinburgh, setting forth the facts above mentioned, but concluding only for expenses of child-bed, aliment to the child, and damages. In this proeess, the courtship, the promises of marriage, the copulation, and the procreation of the child, were referred to John Grinton's oath; and he in effect acknowledged them all, although, at the same time, he alleged his being in liquor when he made the proposals and promises.

A year and a half having elapsed, and ho further motion made in this process, John Grinton, in January 1750, made his proposals to Anne Graite, and married her. But this marriage was private, and without proclamation of banns; however, he brought her immediately home to his house, and lived publicly with her as his wife. Another year elapsed, and a child was also born of this marriage. During all this while, Alison Pennycook, although she had opportunity to know of John Grinton's second marriage, yet took no step in her process; but, in January 1751, she raised against him a new summons, in her own and her son's name. This summons, setting forth the very same facts as the former had done, and referring for proof thereof to the oath above mentioned, contained the proper conclusions, declaratory of her marriage, and of the legitimacy of the child; at the same time, it contained a conclusion of divorce, on account of the defender's open adultery with Anne Graite. Upon this, Anne Graite raised a counter-process, declaratory of her marriage. The Commissaries found “the marriage between John Grinton and Alison Pennycook proven, and declared them husband and wife, and James Grinton their lawful child; and found it proved, that John Grinton and Anne Graite had celebrated a marriage in January 1750, but that the same was unlawful, void, and null; and found, that in respect of John Grinton's cohabitation with Anne Graite, he had been guilty of adultery; and therefore, they divorced and separated Alison Pennycook from him, and found her entitled to bygone aliment from the time of her marriage, and until the date of the decreet; and found James Grinton entitled to aliment from the time of his birth, until he should attain the age of 14 years; and, in order to the modification of these aliments, allowed Alison Pennycook to give in a condescendehce of John Grinton's circumstances; and lastly, they found John Grinton liable in expenses of process, and dues for extracting the decreet.”

In an advocation at the instance of John Grinton and Anne Graite, it was pleaded for them, That Alison Pennycook did not understand that any obligation to marry had been contracted between John Grinton and her, far less that an actual marriage had intervened; and that this her sense of the matter was evident, first from this, that her first suit concluded for damages only; for her making mention of the promise of marriage could mean nothing more than an apology for the surrender of her virtue. Her sense of the matter was further evident from her silence during more than a year and a half before, and a year after, the marriage with Anne Graite.

But, 2do, et separatim, it was pleaded, as a general point of law, That John Grinton's promises to marry, although followed by a copula, cannot, in the strongest sense, infer more than an obligation upon him afterwards to solemnize and complete a marriage. This obligation might, by the intervention of a mid impediment, become unperformable. Supposing John Grinton had died, his obligation to marry must have died with him. In this case, the second marriage became a mid impediment no less effectual than death; and therefore, the obligation could no otherwise issue than in damages to the party. Upon this point, important as it is, our lawyers have not wrote with entire precision; yet by their making mention, that, in a like case, there would be an action to compel the party refractory to complete the marriage, it is very plain, they did not hold the marriage to be actually completed. It must have been upon these principles that my Lord Stair, lib. 1. tit. 4. par. 6. mentions, that, in the case of Barclay against Napier, the man was obliged to solemnize the marriage, seeing he had procreated children with the woman. Sir Thomas Craig, lib. 2. dieg. 18. par. 19. relating the case of Edward Younger, says, “Et Commissarii, viri acuti, successionem bonorum mobilium concesserunt liberis Edwardi Younger, licet matrimonium nunquam fuit contractum, neque banna proclamata, ea ratione, quod cum Edwardus, sub fide futuri matrimonii, eos liberos suscepisset, materque apud Commissarios causam obtinuisset, ut Edwardus matrimonium promissum implere cogeretur; eo recusante, perinde habuerunt, ac si eam in uxorem duxisset, liberisque bonorum mobilium executio sive hæreditas adjudicata est. Constat ergo, ubi nunquam matrimonium de facto intervenit, posse aliquando legitimos, saltern legitimates esse.”

This doctrine is well founded in reason; for dreadful were the consequences, if promises, made for the most part in æstu libidinis, and kept private, or at least not properly put in suit, should have the effect to make void a subsequent and formal marriage, and to bastardise the issue of it.

Answered for Alison Pennycook; That her not having concluded properly in her first summons, was the oversight of her procurator, and, at any right, might be amended for in that summons she had fully set forth the facts which inferred the marriage. Anne Graite did not pretend to be ignorant of her claim; and it was evident, that the fear of objections upon that account was the reason why the celebration of the second marriage was private, and without proclamation of banns; therefore Anne could not complain she was deceived: But, at any rate, in the second place, The general point of law was absolutely clear, that a promise of marriage followed by conjugal intercourse made an actual and legal marriage, although not a formal one. Such was the rule of the canon law itself, notwithstanding the great stress it laid upon sacerdotal benediction. This appears from lib. 4. tit. 1. cap. 30. Decretalium de sponsalibus et matrimonio; Is qui fidem dedit mulieri super matrimonio contrahendo, carnali copula subsecuta, si in facie ecclesiæ ducant aliam et cognoscat, ad primam redire tenetur, &c. Although our law followed not the canon law so far as to give action upon sponsalia de futuro, or bare promise of marriage, yet si copula subsecuta, it makes a legal marriage de præsenti. This is expressly laid down by Lord Stair, lib. 1. tit. 4. par. 6. where speaking of present consent, which makes the essence of marriage, he says, “That may be by natural commixtion, where there hath been a promise or espousal preceding; for therein is presumed a conjugal consent de præsenti.” And again, lib. 3. tit. 3. par. 42. he says, “After contract or promise of marriage, or sponsalia, if copulation follow, there is thence presumed a matrimonial consent de præsenti, which therefore cannot be passed from by either or both parties, as having the essential requisites of marriage.” And in the tit. first mentioned, he relates, that in the case of Barclay against Napier, the man was obliged to solemnize the marriage, although the woman, in a contract posterior to the contract of marriage, had renounced the same. This is also agreeable to our ancient practice, as appears from Sir Thomas Craig, where he relates, that in the case of Edward Younger (above mentioned), the Commissaries first decerned him to solemnize the marriage, and upon his refusal, declared the marriage, and the legitimacy of the children. These learned authors are clear as to what made the essence of marriage; and as to the solemnization mentioned by them, that was only required for the sake of public order and decency. The principles here laid down are supported by the uniform practice of our courts, where, upon evidence of the promise and copula, the constant style of their judgment is, “declaring the parties to be married, decerning them to adhere, and declaring the legitimacy of the children.”

This case was taken up by the Lords entirely upon the general point, and it was held for law, that a promise of marriage, followed by a copula, made from that moment an actual marriage.

“The Lords remitted the cause to the Commissaries simpliciter.”

Reporter, Drummore. Act. Fergusson. Alt. Lockhart. Fol. Dic. v. 4. p. 169. Fac. Col. No 46. p. 68.