Katharine Macgregor v. Miss Colin Campbell — InformationMacGregor, 3 Jul 1801

[BILL-CHAMBER.] [BIL-C HAMHC Iwr. K A TH AR IN E M ACGREGOR, &c. against Mifs COLIN CAM PBELL. J. Brunt on, Agent. M. Clk. [Lord AGINSTTSa Reporter.]a g i n s t � a n g F O R 5 Ba.BP- 3S 4 B6�PS�GP � lawful Daughter of John Macgre- gor, fome time Tenant in Cathaladow, and late in Comrie, Widow of Lieutenant Duncan Campbell of the Regiment o f Foot, Tackfman of the Farm of Weft^r Dundurn in the Pariih of Comrie, and County c f.Perth; and for � GI-3 � BT� � S I I � only Child procreated of the Marriage betwixt the faid Katharine Macgregor and the faid Lieutenant Dun~ can Campbell, Purfuers j AGAINST Mifs � GI-3 � BT��SII of Edinchip, for herfelf, and as repr^- fenting her brother Patrick Campbell of Edinchip, and heV Sifter, Ifabella Campbell, both original Defenders, now de-. ceafed, Defender. # L� P� AGINSTTSa � Ordinary, has taken to report a queftion of marriage and legitimacy, which has occurred betwixt thefe parties. The material facts and proceedings in this caufe ftiall, in the outlet, be ftated. Previous to the year 1788, the purfuer, Katharine Macgregor, lived with her parents at the village of Cathaladow, fttuated in the near neighbourhood of the farm of Dundurn, which was A occupied Anno 1788. Anno 1790, Declar. of purfr Pi oof, p. 4. B. [2] occupied for feveral years by the faid deceafed Duncan Camp­ bell. r During the time that this purfuer lived with her parents at Cathaladow, fhe was occafionally employed as a reaper, and in harveft 1788, fhe ferved Lieutenant Campbell in this capacity. When the harveft was over, Mr Campbell engaged her to ferve in his family as an upper fervant or houfekeeper, and in this f ix a ­ tion die continued for a confiderable time. During that period, Lieutenant Campbell formed the refolu- tion of railing the purfuer to the rank of his wife, and for this purpofe made honourable propofals o f marriage to her. Thefe were accepted o f; and the Lieutenant having, about this time, refolved to go to Kinghorn for the benefit o f fea-bathing, he re- quefted the purfuer to accompany him there, which file confented to do, upon receiving aflurances from him, that before returning to Dundurn, they would be married in Edinburgh or Leith. Accordingly, in the month of Auguft 1790, MrCampbell and the purfuer fet out together on their journey to Kinghorn, and travelled in a manner fuitable to his rank, attended by a fervant and three horfes. Upon their arrival at Perth, the fervant and horfes were lent back to Dundurn; and the Lieutenant and purfuer performed the reft of the journey to Kinghorn in a poft-chaife, which they hired at Perth. J Having remained at Kinghorn for two days, the Lieutenant then conducted the purfuer to Edinburgh, where he purchafed for her, clothes fuitable to a perlon in the rank of his w ife; and, in the evening of that fame day, they were married at Leith, by one whom the purfuer, from his drels and appearance, conceived to be a clergyman, in prefence of two other men as witnefles. After the marriage, Mr Campbell and the purfuer returned to Kinghorn, where they continued for fome weeks, cohabiting to­ gether as hufband and wife; but for different reafons, and parti­ cularly to avoid giving offence to Mrs Campbell of Edinchip, the Lieutenant’ s mother, they were extremely defirous. of keeping the marriage as private as circumftances would admit. Piie Lieutenant having fent for his horfes to Kinghorn, he and the purfuer returned from thence to Dundurn on horfeback, at­ tended by the fame fervant who had formerly attended them to Perth. Upon their return to Dundurn, they flept in the fame bed, eat at the fame table, went frequently to kirk and market, riding on the fame horfe, or travelling in the fame cart; and, in every re- jipetftj behaved to each other as became hufband and wife. In particular,. particular, it merits obfervation, that, in the fequel, It will ap­ pear to be eftablifhed by the mod fatisfadory evidence, that, to many different perfons, and in various companies, Lieutenant Campbell acknowledged the purfuer for his wife, authorifing them to e,ive her the name of Mrs Campbell. It is likewife eftablifhed, byirrefiftible evidence, that Lieutenant Campbell and the pur­ fuer vifited different families of the neighbourhood, and received vilits from them, as hofband and wife. And, moreover, that, in the general report and belief of perfons redding in that part of the country, they were married perfons. The purfuer Katharine Macgregor, having fallen with child foon after the above-mentioned marriage, was delivered of the other purtuer, Colin Campbell, in May 1791. He was born about four months after the death of Lieutenant Campbell his father, who died in the beginning of January 1791. This purfuer was named Colin, in conftquence of particular directions from Lieu­ tenant Campbell, who defired, tome time previous to his death, that this name iliould be given to the child, with which the Proof> P> 6- D.. other purfuer was then pregnant, whether a fon or a daughter. Immediately after the death of Lieutenant Campbell, his mo­ ther, whofe peculiarities of temper had, for fome years before, rendered her more an objeCt of dread, than of filial attention to her fon, affumed poffeffion of the houfe which he had occupied at Dundurn; and, together with a female fervant who accompa­ nied her there, behaved in fo outragious a manner towards the purfuer, as obliged her to abandon that houfe, and take refuge in one which the Lieutenant had fome time before ereded, tor the accommodation of the purfuer's father. In this laft-men- tioned houfe, the purfuer remained till flie was delivered of the other purfuer, Colin Campbell. The indignation of the mother, and other relations of Lieu­ tenant Campbell, followed the purfuer even to this humble abode, which, regardlefs of the cries of helplefs infancy, they compel­ led her to quit alfo; and thereupon fhe retired to the neighbour­ ing village of Comrie, where fhe has fince lived with her child. In this manner, deferted and abandoned by thofe who were bound, by the laws of nature, and the ties of blood, to have afford­ ed them fuftentation and comfort, the purfucrs wereadvifed to in- flitute the prefent action of declarator of marriage and legiti­ macy before the Commillaries o f Edinburgh. The fummons, after narrating the material fads above ftated, concludes, that it fhould be found and declared, ‘ That the laid 4 Lieutenant Duncan Campbell, and the complainer, were law- < iui Dec. E EC HR.]C Jan. 9. 1793. Proof, p. 1,3, 3 4, 3, and 6. Feb. 18. 1793. Jan, 25. 1798. Feb, 1 C.-» / 1 ful married perfons, hufband and w ife; and that the other * complainer Colin Campbell, fon of the faid Lieutenant Duncan * Campbell, was procreated betwixt him and the complainer ‘ Katharine Macgregor; and that the faid Katharine Macgregor, ‘ and Colin Campbell, her fon, are entitled to all the rights and ‘ privileges competent and provided by law, as a lawful wife or ‘ widow of a lawful hufband, and lawful child; and in order ‘ thereunto, Peter Campbell of Edinchip, brother-german to the ‘ faid Duncan Campbell, and Mifles Ifabella and Colin Campbells ‘ his fiflers-german, ought to be fummoned and called in man- * ner underwritten,’ &.c. Upon advifing the libel, with defences and anfwers, the Com* miflaries, of this date, ‘ appoint the purfuer Katharine Macgregor, ‘ to fift herfelf perfonally in Court, to anfwer queflions pertinent ‘ to the iflue.’ In confequence of this appointment, the declaration was emit­ ted which is inferted in the beginning of the proof now before your Lordfhips. Upon adviling the procefs, with this declaration, the Commif- faries, of this date, pronounced the following interlocutor: ■e Before anfwer, allow the purfuer a proof of her libel, and of all ‘ fads and circumflances tending to fupport the conclufions ‘ thereof; allow the defenders a conjunct probation anent the * premifes, and grant diligence bine inde.’ The defenders, juflly dreading the confequences of a proof, employed every exertion in their power to procure an alteration of the lah-mentioned interlocutor. This produced'a multiplicity o f litigation, both in the Commiflary-Gourt and in the Bill-Cham­ ber; but it feems unneceffary to detain your Lordfhips with here narrating the particulars thereof. Let it fuffice to obferve, that the interlocutor allowing a proof was ultimately fuftained by the authority of this Court, and, in confequence, the long proof now before your Lordfhips was led and reported. It is proper, however, to mention here, that, at this flage of the litigation, the Commiflaries having refufed an incidental petition for an interim aliment to the purfuer Colin Campbell, the queflion was carried before this Court by advocation; and, after hearing parties fully at the bar, Lord Craig was pleafed, of this date, to ‘ remit the caufe to the CommifiarieS of Edinburgh, ‘ with this inftrudion, to find the purfu r, Colin Campbell, * entitled to an interim aliment of L. 5 Sterling annually, from ‘ the day of his birth to this date, and decern accordingly.’ And, at an after calling, his Lordftiip ‘ further finds the * defenders liable to the purluers for the full expence of extrad- ‘ ing the ad, and remit to the Commilfaries of Edinburgh.’ � 4 � The C 5] �� ����� ����� ������ ���������� �� ���� ���!��� �� "��� #����$ ��%�� &����� ����������� ���!������' ��� �� ��� �������� &���� ������'� ��!�'���$ ���� ��� �������� "��������� #�!�&�'' �� ������ �� ��� ������� #�'�� #�!�&�'' (�� ����$)������ �� �� � '�����!��� ���'�$ �� ���$ �� ��� ��'� �������� �� ������� ����� ��� confideration of your Lordfhips. After the above judgment of this Court, the caufe having gone back to the Commiflaries, they pronounced, of this date, the fol- Aug. 28 lowing interlocutor upon the merits: ‘ The Commiflaries having confidered the proof and me- < morials, along with the libel and procefs, find lufficient evi- * ����� �� ��� &������ �� ��'�&'���$ ���� ��� ������� *�������� < ‘ Macgi'egor and the deceafed Duncan Campbell of Edinchip ‘ wTere married hufband and wife of each other: Therefore, at- < foilzie the defenders from the conclufions of marriage and of ‘ legitimacy, referving to‘ the purfuers to infill: againfi: the repre- ‘ fentatives of Duncan Campbell for a reafonable aliment to his ‘ fon the purfuer Colin Campbell, as accords; find the defend- * ers not entitled to any expences, and decern.’ The Commiflaries having adhered to this judgment, the pur­ fuers complained thereof to this Court by bill of advocation, which, with anfwers and replies, having come to be advifed by Lord Polkemmet, Ordinary, his Lordlhip was pleafed, o f this date, to pronounce the following interlocutor: ‘ The Lord Ordi- July 17 ‘ nary appoints the parties to prepare and print informations in ‘ this caufe, and to put the fame into the Lords boxes againft the ‘ fecond box-day in the prefent vacation, in order to report the ‘ caufe to the Court: Alfo appoints the proofs on both fides to be ‘ printed at the defenders expence, and the purfuers agent to be ‘ furnifhed with copies thereof, within fourteen days from this 1 date and recommends to the counfel who may be employed to ‘ draw the informations, to make references therein to the proof, ‘ in place o f engrofling the depofitions ad longum, whereby the ‘ B i l l-Chamber papers have been fvvelled to an enormous bu lk. ’ In obedience, this is humbly offered on the part of the pur­ fuers. % The purfuers have no doubt that your Lordfhips will carefully perufe the whole proof adduced by both parties; and therefore, in the obfervations which they beg leave to offer upon the import thereof, they will pay due regard to the proper recommendation of the Lord Ordinary. B A s i 6] As the evidence of the actual celebration of this marriage refts entirely upon the judicial declaration of the purfuer Katha­ rine Macgregor, it is not intended to infill upon it at prefent, for reatons which will further appear in the fequel. But the purfuers hope to eflablifh, to the entire fatisfaClion of your Lordfhips, the four following particulars. ’ i//, 1 he cohabitation of the deceafed Lieutenant Campbell and the purfuer, as hufband and wife. 2dly, The explicit acknowledgment by Lieutenant Campbell to many diflcicnt perlons, and on numerous occafions, that the pur­ fuer Katharine Macgregor was his lawful wife. yily, The general opinion of the people inhabiting that part o f the country where they ufually refided, that Lieutenant Camp­ bell and the purfuer were married perfons, hufband and wife. 4tbly, That in confequence of this general opinion, or habite and repute, fundry perfons in that neighbourhood, even thofe in gen­ teel flations of life, vifited Lieutenant Campbell and this purfuer, and received vifits from them, as married perfons. durn. This witnefs having been a fervant to Lieutenant Camp­ bell for about two years previous to his death, and in this capa­ city having attended him and the purfuer as far as Perth, when they went to Kinghorn, fpeaks pointedly to the circumflances at­ tending this journey, which have been Hated in the preceding nar­ rative of fails, proof, p. 13. E. • 1. This witnefs, among other particulars, depones to his recei­ ving a letter from Lieutenant Campbell at Kinghorn, and, in con­ fequence, going to that town with three horfes, upon which the Lieutenant, the purfuer, and witnefs, returned to Dundurn. T ’W'ith him, concurs Grizel Drummond, his fpoufe, as to all the efiential circumflances to which her hufband had deponed, proof,, p. 20. G. In the depofition of this witnefs, among many other important particulars, there is one circumftance which cannot fail to flrike your Lordfhips forcibly, namely, that the witnefs has no recol­ lection of Lieutenant Campbell and the purfuer ever vifiting in her houfe together, or receiving vifits from her family, till after the journey to Kinghorn, proof, p. 23. G. It appears from the above evidence, that the general belief of the country, that Lieutenant Campbell and the purfuer were mar­ ried perfons, arofe very naturally from the circumftance of the Obfervations on Purfuers Proof. Thefe particulars are diflinClly proved by the oath of the third witnefs, Robert Drummond, farmer at Cathaladow, near to Dun- jaunt J jaunt which they performed together to Kinghorn, and their fub- fequent cohabitation as hufband and wife, joined to the Lieute­ nant’ s explicit acknowledgment that he was married to the pur­ fuer. But although this journey, and the circumflances now men­ tioned, which immediately followed, confirmed the neighbour­ hood in their opinion as to this marriage, yet it will appear from the fequel, that even prior to that period, apprehenfions were en­ tertained by fome perfons that Lieutenant Campbell and the pur- 3 fuer were hufband and wife.. The purfuers mull, in the next place, requefl the particular at­ tention of your- Lordfhips to the very refpedable teflimonies of Enfign Murray Drummond, of the n th Regiment of Foot, and o f his wife, who corroborate the above evidence of Robert Drum­ mond and his fpoufe, as to all the eflential circumflances propofed to be proved, proof, p. 7. A. The (lime witnefs, after mentioning that Lieutenant Campbell and the purluer vifited the families in the neighbourhood, de­ pones to the very important fad; of Lieutenant Campbell and the purfuer, at thefe vifits, behaving to each other as hufband and wife, and their being treated as fucli by the people whom they vifited, proof, p. 8. A. The period at which Lieutenant Campbell introduced the pur­ fuer to this witnefs as his wife, merits particular attention, and is mentioned by the witnefs to have been about July or Auguft pre- Proof, p. 8. E ceding his death. This, it will be remembered, was the very pe­ riod at which Lieutenant Campbell and the purfuer performed together the journey to Kinghorn. It appears alfo, from the evidence of the fame witnefs, th a t----------E. Lieutenant Campbell had introduced the purfuer as his wife to- fome perfons in the neighbourhood, before introducing her to the deponent; and that the perfons in w'hofe families Lieutenant Campbell and the purfuer vifited, called the purfuer Mrs Camp­ bell: That the deponent has heard them call her fo frequently in----p. 9- B. Lieutenant Campbell’ s prelence. The only other circumftance, which the purfuers will beg leave to notice in the oath of this witnefs, is the kind and affedionate manner in which Lieutenant Campbell behaved to the purluer, and the familiar endearing appellations with which he addrefied her, being entirely fuch as might be expeded from a hufband, and is ufual with married men, whether in the higher or lower fta- tions of life. With Enfign Drummond, concurs his fpoufe, Mary Robertfon, in every material circumftance, and particularly as to the ftriking fads of allowing the witnefs to drink to the purfuer after din-- ner s* [8] Purf. Proof, P« 35- c- ncr by the name of Mrs Campbellj o f giving her that appella­ tion himfelf when he fpoke of her, and addrelling her as an affec­ tionate hufband would addrefs his wife, by the kindly appellation of * My dear Katy,’ proof, p. n. F, G. This witnefs alto concurs with her hufband, and Robert Drum­ mond and his fpoufe, as to the general belief of people in that part of the country, that Lieutenant Campbell and the purfuer were married perfons, and of their vifiting and receiving vifits in that character from feveral families in the neighbourhood, p. 1 2. D. It no doubt appears, from the depofition of this witnefs, that flie had underflood Lieutenant Campbell and the purfuer to be married perfons, even prior to the journey to Kinghorn, lb often already mentioned; but it is lubmitted, that this circumftance, however much it may ftrengthen, can never enfeeble the argu­ ment neceftarily ariling from cohabitation, acknowledgment, and the general belief in that part of the country, that, fubfequent to laid period, they were truly hufband and wife. The fame obfer- vation will apply to the evidence of fome other witnefles, who feem alfo to have apprehended, that the purfuer and Lieutenant Campbell had been married prior to the journey to Kinghorn. Mn the next place, the purfuers muft lolicit the attention of your Lordlhips to the refpeCfable teftimony of John Orr, jeweller in Greenock. This witnefs, after mentioning that having occafion to be in that part of the Highlands where Lieutenant Campbell refided in the 1789, he received a melfage from the Lieutenant to meet him at Maciver’s public houfe in Cathaladow, proceeds to depone, in fubftance, That Lieutenant Campbell introduced the purfuer to him as his wife or Mrs Campbell and not only fo, but in the mod folemn manner, called God to witnefs that the purfuer was bis lawful wife, and that the witnefs thereupon laluted lier as fuch, p. 34, A, 13, C, D. 'The following part of this depofition, which explains what palled fubfequent to the introduction of the purfuer as the wife of Lieutenant Campbell, merits alfo particular attention, as pro­ ving, that the introduction upon this occafion was deliberate and intentional, and accordingly followed up by fuch acts o f focial and friendly intercourfe as might naturally be expeCted betwixt Mrs Orr and the purluer, when regarded by her as o f Lieutenant Campbell. The teft imony of Mr Orr is confirmed in every particular by that of Margaret Macgregor, his fpoufe, who was prefent when Lieutenant Campbell introduced the purfuer as his wife to her hufband, in the manner, particularly defcribed in his oath, and, on the morning thereafter, breakfafted along with her hufband at Lieutenant Campbell’s houfe. It C 9] It is proper to entreat your Lordfhips particular attention to the v e r y honourable teftimony which this witnefs bears to the Proof,p, 35. purluer’s perfonal character prior to the time that fhe lived with Lieutenant Campbell, firfl as a fervant, and thereafter as his lawful wife. That Lieutenant Campbell, about a year previous to his death, acknowledged that he was married to the purluer Katharine Mac­ gregor, is proved by the oath of Donald Maeintyre, to whom the acknowledgment was made in the molt explicit terms; p. 16. F. The following witnefs, Betty Macilwhannel, fwears pointedly to the report of the country, that Lieutenant Campbell and the pur­ fuer had gone to Edinburgh in order to be married; p. 17. B. Fhe fame witnefs fwears alfo in exprefs terms, that after the Lieutenant and the purfuer returned from Edinburgh, he made an explicit ac­ knowledgment of his marriage in prefence of the purfuer, to the wife of Hugh Robertfon, who kept a public-houfe at Comrie 3 upon which the landlady faid, in relation to the marriage, ‘ If i * did not know it before, I know it now.’ The fame witnefs 1 wears likewife to the report of the country, that Lieutenant Campbell had acknowledged the purfuer as his wife toother perfons than the witnefs and Mrs Robertfon; p. 18. A. The particulars mention­ ed by this witnefs relative to what palled at the houfe of Dun­ durn, pollerior to the above converlation at Comrie-fair, well deferve attention. The circumflances of the defender calling pretty early in the morning, and fending the fervant to tell the Lieutenant that fhe was there waiting; and being defired by the fervant to flay and reft, till Kattie (*. e. the purfuer) would rife, and J'peak to herj and afterwards, being introduced into a room with two beds in it, when the Lieutenant and the purfuer were al- * moft drefted, with fome part of their clothes not then on, ftrongly evince the cohabitation at that time as hufband and wife. In the conclufion of her oath, this witnefs alfo gives a fatisfac- tory explanation of her giving the purfuer the familiar name o f Kattie Macgregor, both when fhe fpoke of her and fpoke to her, having been long upon a very intimate footing with the purfuer, while, at the fame time, fhe depones, ‘ That file knew the purfuer ought ‘ to have got the name of Mrs Campbell j ’ p. 19. C, D. The oath of the laft-mentioned witnefs, particularly as to the acknowledgment by Lieutenant Campbell of the purfuer as his wife, at the above-mentioned fair at Comrie, is confirmed by Katharine Macdiarmed, fpoufe to Hugh Robertfon, the landlord of the houfe where that acknowledgment was made; p. 19. G. I The journey to Kinghorn, which Lieutenant Campbell perform* ed in company with the purfuer, the confequent report o f the country, that they had gone to Kinghorn to be married, and were accordingly married, is confirmed by the oath of Alexander Macifaac, fanner and didiller at Aberuchill, about two com­ puted miles from Dundurn; p. 25., A, B. And the fame witnefs fwears to tins mod material fad:, 1 That after their return they ‘ feemed to appear and behave to each other as married perfons, ‘ from their walking and keeping company together.’ This witnefs Iwears alfo moft pointedly to Lieutenant Camp­ bell’ s explicit declaration to him, that he was truly married to the purfuer, Katharine Macgregor, p. 35. D. T he underdanding of the people in that part o f the country, with refped to the connedion which fubfirted betwixt the pur­ fuer and Lieutenant Campbell, is alfo didindly proved by the fame witnefs, p, 36. B. It may be proper to notice alfo, that this witnefs, towards the concluiion of his oath, particularly mentions, that the above con- verlation, and acknowledgment o f marriage, happened after Lieu­ tenant Campbell’ s return from Kinghorn, and towards the latter end of Odober that year; and further, that the deponent’ s wife was prefent on that occafion. The following witnefs, James Macifaac, fwears alfo in the clear­ ed manner, that Lieutenant Campbell, in his own houfe, acknow­ ledged to him, that he was married to the purfuer, Katharine Mac­ gregor, p. 28. F. He further depones, p. 29. A. that he has feen the Lieutenant and purfuer riding together on the fame horfe to church, after they came from the fait water, but never faw them riding in that manner before they went to i t; and further, that he has feen them going both to church and market in a cart together, after they came from the falt-water, but never before. He likewife fwears, p. 31. B. to a circumdance mod conclufive as to the ge­ neral report and belief of the country, viz. that, after Lieutenant Campbell’s death, he never heard any perfon exprefs any doubts of the purluer’ s having been married to the Lieutenant. The lad circumdance mentioned by this witnefs, is honour­ able to the purfuer’ s perfonal charader, as well as corroborative of the evidence of her marriage, viz. * That, ever fince the Lieu- ‘ tenant died, the purluer has lived in the country as his widow, 4 and brought up her child neat and clean, as his widow would ‘ have done,’ p. 3 1. D. 1 he regular and orderly behaviour of the purfuer fince the death of her hufband, as well as before it, is likewife proved by Alexander Comrie, p. 40. G. from an acquaintance for ten years. [10 j The V * [3 The feeling lamentations of the purfuer on the death of her huf­ band, as the moll diftrefsful event that ever befel her, and the fuitable drefs which Ihe wore, after Ihe had the misfortune to be a widow, are well explained by the fame witnefs, p. 41, A. It is material to obferve, that the evidence o f Ifobel Drum­ mond, refpe&ing the marriage-lines, confirms, in every material particular, the account given of the lofs o f them in the purfuer’ s judicial declaration, p. 4. F. For, with regard to the fmall dif­ ference, as to the particular place where the marriage-lines were burned, the witnefs mentioning Kinghorn, and the purfuer Dun­ durn, it is ealy to conceive, that the witnefs may have fallen in­ to a miftake as to this matter, from the circumftance o f the two places having the fame number of fyllables, and terminating with the fame two letters, and, at any rate, it is nothing extraordi­ nary, that the witnefs, fwearing to a fact which happened feveral years before, fhould commit a miftake as to the particular place actually mentioned by the purfuer. And as to what is deponed to by the fame witnefs, of the pur­ fuer having faid, that her marriage did not iignify, ‘ as fhe had ‘ nothing to fhew for it.’ This, with lubmiftion, proves, in the ftrongeft manner, the ignorant fimplicity of the purfuer, which, in a queftion o f fo great importance, your Lordfhips will not al­ low to operate to her prejudice; and, leaft of all, to the hurt o f the other purfuer, the innocent offspring of the marriage betwixt her and Lieutenant Campbell. Neither ought it to be omitted here, that this erroneous ap- prehenfion, concerning the eftetft of lofing the marriage-lines, will ferve to explain, in a clear and fatisfadory manner, feveral particulars deponed to by fome of the witnefles adduced on the other fide, which might otherwife have appeared, as either unin­ telligible or injurious to the claims of the purfuers. Having thus laid before your Lordfhips, the import o f the proof adduced for the purfuers, they will now proceed to offer a few obfervations upon the evidence adduced for the other party. With regard to the firft witnefs, Alexander Macarthur, at pre- Obfervations on fent a fervant o f Mifs Campbell, the defender, on the farm of Dun- Defend. Proof, durn, it is fubmitted, that he ought either not to have been admit- P* H* ted at all as a witnefs in this caufe, or, at any rate, only received cum nota, agreeable to the dotftrine laid down by Mr Erfkine, as follows: ‘ The teftimony of menial or domeftic fervants is rejetft- 4 ed, on account of their mailer’s influence over them, which ‘ tends to cramp or reftrain that freedom that witnefles ought f to be poftefled of.’ And, after mentioning, that domeftic ler- vants [1 2] Proof, F. Vants are received as witnefles, in tranfa&ions that are managed within doors, the learned author proceeds to obferve, * fuch vvit- ‘ nefles are faid to be admitted cum nota; and their tedimony, ‘ though it be^ not totally rejeded, is not fo credible as that o f ‘ other witnefles j ’ Erfk; p. 676. The purfuer mull be forgiven to obferve, that no fmall degree of that cramp and reftraint, fo well pointed out by the learned author, as natural to the teflimonies of domeftic fervants, appears confpicuous in the depofition of this witnefs and your Lordfhips will, therefore, only give to it fuch a degree of weight as it may leem to deferve. In particular, it is remarkable, "that the wit­ nefs appears to have an uncommon degree of difficulty in recol- leding any circumflances favourable to the plea of the purfuers, while all thofe which have any tendency to lupport his mailer’s caufe, feem to occur moft eafily and readily to his remembrance. Notwithftanding this difficulty o f recollection, however, there are feveral circumflances deponed to by this witnefs, extremely material to the purfuers, and corroborative of the evidence led • 0_ ® p. 45. upon their part.. In this number are the following particulars that the purfuer and Duncan Campbell flept in the fame room wherein there were fwo beds, and that people alleged they fome- times flept in the fame bed. It is impollible to entertain a doubt, that, if the witnefs had been fo inclined, he might, confidently with his great oath, have included himfelf in the number of thofe perfons who both alleged and believed, that his old mafter, Dun­ can Campbell, fometimes flept in the fame bed with the purfuer. The fame witnefs farther depones, That he has feen Duncan Campbell and the purfuer go together, to make a vifit at Ardrof- tan, (/. e. the houfe of Enfign Murray Drummond, p. 7. A.), be­ fore mentioned, and alfo to a neighbouring public houfe, kept by Robert Drummond;and that he has feen both of thele families at the houfe of Dundurn. This, with fubmiftion, eftablifhes, be­ yond a poffibility o f doubt, the evidence formerly dated, to prove, that Lieutenant Campbell and the purfuer were in the pra&ice of vifiting together the refpe&able families in the neighbourhood, and of receiving vifits from fuch families in return. W ith regard to what is find by this witnefs, as to an application for livery-meal, which appears from the oath of Janet Fergufon to have been refufed, or at lead never delivered, p. ^ c, it is clear­ ly nothing to the purpofe, feeing that an application of this kind from a poor illiterate country-woman, at that time under fome mif- apprehendon as to the coniequences of loling her marriage-lines can Hcver in law, or material juflice, be allowed to injure her elfei> tial legal rights. Neither can-k efcape the penetration of your Lordfliips [13 1 Lordfhips, that it appears, from the evidence of this, and other witnefles adduced by the defenders, that they and their mother had treated this purfuer, after the death of her hufband, with a degree of harfbnefs and feverity which ill became them, confidering the care and attention which, they are forced to admit, (he beftowed upon their deceafed kinfman, during the latter period of his life, when feeble and infirm. The next witnefs, Archibald Dewar, who was alio an old fervant of Duncan Campbell, feems not to be free of fome degree of jea- louly of the claims of the purfuer Katharine Macgregor, whom he regarded formerly as a fellow-fervant; though, during the pe­ riod of his fervice, (lie was only occafionally employed as a reaper in the fields of Lieutenant Campbell. It is faid by this witnefs, that upon hearing the report o f Lieu­ tenant Campbell’ s marriage with the purfuer, he ufed the freedom to alk him, if it was true; and he denied the truth of it. But it will readily occur to your Lordfhips, that the denial to this, and other inferior witnefles, who put like impertinent quell ions to the Lieutenant, was a proper check to their impertinence. And, at any rate, it could never counterbalance the weight o f evidence, ariflng from a long train of acknowledgment to retpetlable witnef- l'es. in prefence of the purfuer herfelf, joined to the real evidence arifing from cohabitation for fo long a period, as hufband and wife. There is one circumftance in the oath of this witnels, calcula­ ted to make a ftrong impreffion, viz., That during the time that Lieutenant Campbell was lying a corpfe, he faw the purfuer, with one of Mr Campbell’s maid-fervants, and two lads, all lying in one bed. But when the following circumflances are confidered, the effedl which this piece of evidence is intended to produce, will, it is hoped, be entirely difappointed. In the place, 1 here is rea- fon to believe, from what the witnefs depones, that thefe people were refting themfelves on that bed with their clothes upon them at Ieaft, if thefe were off, it was unknown to him: idly, 1'be Ample manners of the Highlands, where it is ufual, as in other uncivi­ lized countries, for men, women and children, to fleep in the fame apartments, and often in the fame beds, when necellary: 3dly, The fmallnefs of the houfe at Dundurn, which is deferibed, by James Macifaac, p. 30. A., as being a thatched houfe, of one ftory, con- fifting of a room at one end, a kitchen at the other, and a clofet in the middle. Befides, it will be remembered, that all the witnefles on both fides agree, that there were two beds in the room where Lieutenant Campbell ufed to lleep, upon one of which he was then lying a corpfe. The kitchen was the only other place of the houfe, where there could be a bed, upon which accordingly thefe four perfons appear to have reclined, p. 48. E. D- The Proof p. 46. G* p. 4 7. Cs- I I i« B ced ond, h f? S 5 r v ne^ ’ •',S other witnefles adda-, on the part of the defenders, confifts moftly o f negatives; uch as that the deponent neither faw nor heard any thing like ihe purfuer s eating at table with Duncan Campbell: That the deponent cannot fay, from his own knowledge, whether the de­ ponent and Duncan Campbell flept together, or not. It is fub- c iat thel® *nd thc llke negatives, which compofe the chief pait of the depofmons of the defender’s witnefles, that they did not fee, or hear, or believe, what all other perfons in the neLli- bourhood appear to have feen and heard, and firmly believed can never counterbalance or redargue the dired and pofitive teflimo- nies oi the purfuers witnefles upon all the material points in this ^^ ulc#, « * * i One of the defender’s witnefles, John Fergufon, has deponed, J iat one evening, more than a year before Lieutenant Campbell cned, he a/ked the purfuer, if Ihe was married; to which flie an- 1 we red, that flie was not. But from attention to dates, this matter admits or a very fatisfadory explanation. Lieutenant Campbell died in the beginning o f January T701: and the above converfation mufl have happened in the courfe o f the year 1789.^ This confequently was long prior to the journey to kinghorn, in the beginning o f harveft 1790, and of courfe pnor to the time that the purfuer got her marriage-lines, which, agreeably to the prevailing opinion among country people, flie then luppofed was eflential to the conftitution of marriage. Be- lKlc:;, It will be particularly obferved, that this is the Angle wit- nets to any denial of the marriage by the purfuer, during her co­ habitation with Lieutenant Campbell; and confequently, is not legal evidence of the fad. Accordingly, after the return from kinghorn, it appears, from the oath of Janet Fergufon, that when a/ked the lame queftion, whether flie was married to the Lieute­ nant or not, or i f they were flill to call her Kate Dochart > the purluer anfwered, they might call her any thing they liked: but did not lay either that flie was married, or that Ihe was not mar­ ried. ► J 4 The purfuer’s filence upon this occafion, as well as her ufing the appellation of matter, when fpeaking of Lieutenant Cainpbelf even after the return from Kinghorn, can be eafily accounted for’ from her proper defire of complying with the willies o f her huf­ band, to keep the matter as fecret as polfible from his mother named in the proceedings Lady Edinchip, to whom they natural­ ly prefumed that the marriage would be extremely o/Fenfive, and r^o[|1 ^.5 PjTydiarities of her temper, might have produced the niolt dilttefsful expreflions of chagrin and dilapprobation.; Duncan [1 5 J B. P-34 Duncan Stewart has been brought forward to fwear, that Lieu- Proof, p. 51 tenant Campbell offered to give bis oath, that he neither was mar­ ried, nor would be married to the purfuer. But this cannot coun­ terbalance, far lefs invalidate, the refpe#able teftimony of Mr Orr, the jeweller, who, it has been above (hewn, deponed, that Lieute­ nant Campbell repeatedly aflerted, in the mo ft folemn manner, that he was married, and actually called God to witnefs the truth of his aflertion. Neither ought it to be omitted here, that the denial of the mar­ riage to Duncan Stewart was evidently influenced by pecuniary confiderations. '1 his witnefs, who was bound with the Lieutenant in bills to the amount of L. 30, told him, that, if the report of his being married was well-founded, he the deponent mu ft loofe his obligation, being afraid he would hurt his affairs, and bring his creditors upon him by fuch a connection. I f Duncan Stew- art was right in this apprehenfion, it may, when joined to the dread of offending his mother, lerve as a key to other denials of the fame kind, upon which the defenders have laid fo much ftrefs.. • With refpe# to what pafled in the kirk-feflion of Comrie, be­ fore Katharine Macgregor was delivered of the other purfuer in May 1791? the evidence feems to be very complete, that no que- ftions were put to her before the feftion, as to her marriage, but only as to the father of her child. This appears from the oath of James Macnab, an elder of the parifli of Comrie, p. 54. D. who depones further, That Jhe was not reproved either bejore the congrega­ tion, or in the kirk-fejjion: That Mr Macdiarmid the minifter was then prefent in the feflion, but he is now difordered in mind, and at this time Daniel Ferguflon was feflion-clerk........ Accordingly, Daniel Ferguffon depones, That he got from Mr Proof, p.60 Macdiarmid, minifter of the parift), a note or memorandum of II. the proceedings in the feflion that day, from which the deponent made up a regular minute in the record. And your Lordfhips will find, upon the laft page of the proof, an extra# from the feflion-books of Comrie, which John Drummond depones is an___p. 57. extra# of the examination of the purfuer; and Ferguflon, the then feflion-clerk, depones, That the original minute in the record is an exa# copy of that given in by the minifter. After proving, by James Macnab, that the purfuer was re­ buked either before the congregation or kirk-feflion, and by the extra# from the feflion-books, that no rebuke had been given to her there, which could not have been omitted if truly given, it muft feem furprifing to your Lordfhips, to find the defenders bringing forward the unfortunate gentleman, Mr Macdiarmid, who •! \ who, Macnab fwears, is now difordered in to depone, that, to the heft o f his recollection, fhe (the purfuer) was rebuked Proof, p. 58.D. in the ordinary way for fornication before the feflion. With regard to the dory told by this witnefs, of the reafon why the purfuer did not appear before the congregation, it is al­ together incredible; for, as nothing was faid about fornication before the kirk-feflion, nor any rebuke adminidered there, as pro­ ved by the defenders witnefs, Macnab, as well as by faid minute, it was impoffible there could ever have been any intention of a re­ buke before the congregation; and what has been faid by the reverend gentleman upon this fubjed, can only be accounted for from his weaknefs of mind, arifing from the indifpofition, called by the witnefs a fever, i of which he was then recovering, in the ‘ y ear J 79L and was dill very weak;’ and which, as he himfelf depones, having foon after recurred, incapacitated him from doing pari/h-duty for fome years, p. 58. H. 1 he purfuers will now proceed to fubmit to your Lordfhips the grounds of law upon which they hope to obtain a favourable judg­ ment in this caufe... C 16] Point of Law • 1 w In order to the conditution of marriage by our law, there is^ neceflary either aCtual celebration by the ufual folemnities, or elfe a decree of the proper court, founded on fufficient grounds, obliging the parties to folemnize it; and upon their failure to do l'o, or the folemnization becoming impoOible by the death of one of the parties, as in the prefent cafe, declaring the marriage to have actually exided before the death. °. ^ In this cafe, the aCtual celebration, and confecjuential marriage- lines aie libelled, as alfo a train of cohabitation as married per- lons, joined to repeated acknowledgments, and being publicly re­ puted hufband and wife. With refped to the aCtual celebration, no legal proof thereof has been adduced, for this reafon, that, fince this procefs was railed, the purfuer has been advifed to red her caufe chiefly upon die long leiies of cohabitation betwixt her and Lieutenant Camp- b(II, with the numerous acknowledgments of marriage, and the general underdanding in that part of the country that they were married perfons. That cohabitation, and general habite and repute, are fufficient by the law of Scotland for the conditution of marriage, appears from the mod refpeCtable authorities. Accordingly, Lord Stair, after dating, that it is not every con- fent to the marriage date that makes matrimony, but a content de preefenti, proceeds to oblerve, ‘ That the marriage itl'clf confids ‘ not S. r * w ' ■ vT- / not in thepromife.but in the prefent content, whereby they accept each other as hufband and wife, whether that be by words exprels- ly or tacitly by marital cohabitation or.’ ‘ The pu­ blic folemnity is a matter o f order juftly introduced by pofitive law, for the certainty of fo important a contrad, but not effen- tial to marriage.’ And, a little below, the learned author adds, By our cuftotn, cohabitation, and being commonly repute man and wife, validates the marriage, and gives the wife right to her terce, who cannot be excluded therefrom, i f flie was reputed lawful wife, and not queflioned during the hulband’s life, till the contrary he clearly decerned;’ Pari. 1503, chap. 77. Stair, 1 26. •, Hence, it appears, that by the fixed principles of the law of Scotland, either marital cohabitation or acknowledgment are fufficient to the conftitution of marriage; but, in the prefent cafe, it has been above proved, by inconteftable evidence, that both cohabitation and acknowledgment have concurred to efta- blifli the marriage in queftion. To the fame purpofe, Lord Bankton obferves, ‘ One’ s openly 1 cohabiting with a woman as his wife, is good to conftitute a • marriage by the civil law, which holds precifely with us; and ‘ in this cafe, the opinion of the neighbourhood is of importance, •' viz. whether the parties live together in a criminal intercourfe, ‘ or as reputed man and wife.’ Vol. iii. p. 60. In like manner, Mr Erfkine lays down the dodrine of our law as follows: ‘ Marriage may be alfo entered into where the confent ‘ is not exprefs, but is difcovered rebus ipfis et faciis. In this ‘ way, it is prefumed, or inferred from cohabitation, or the parties. e living together at bed and board, joined to their being habit or ‘ held and reputed man and wiped B. i. p. 86. From thefe refptdable authorities, it appears, that by the uni­ form dodrine of all the writers upon our law, cohabitation as hulband and wife, joined to general habit and repute as married perfons, fuch as has happened in the prefent cafe, independent al­ together of acknowledgment, are, per Je, fufficient to the confti­ tution of marriage. It remains to fubmit a few obfervations u chiefly inlitted upon by the other party, wheth alleged import of the evidence which has bee the point of law which here occurs. And, in tht firjl place, With relped to the the purfuers, it is contended, that it appears every thing which Duncan Campbell laid on E pon the arguments er arifmg from the n adduced, or upon proof adduced for from thence, that the fubjed of his marriage Plea of the Dt-ftnder coniuiered. \ I � � � � marriage with the purluer, was all in jefl. Thus, in the anfwers \n f.p. 61. to the bill ot advocation, it is hated, that the late Lieutenant Campbell ‘ was of that joking dilpofition, that was ready to fay ‘ any thing for the pleafure of the moment;’ and in the follow- ing page it is faid, * that when he w7as palling his jokes with others, he ufed to call the purfuer his wife.’ The fame thing is repeated in fome other paflages, particularly in page 67. o f the fame anfwers, where, after mentioning that Lieutenant Campbell had heard from different perfons the report of his mar- p.67. riage with the purfuer, it is added, / he, from his peculiar man- ‘ ner kept up the joke.’ To this it is anfwered, 1 mo, That this inference is made with­ out a fhadow of foundation in the evidence, as the witnefles for the purfuers, and particularly the mod refpeCtable of them, Enfign Murray Drummond, and Mr Orr, jeweller, with their re- fpeCtive wives, all concur in deponing that thefe acknowledg­ ments were made in the mod folemn and deliberate manner; and at times when Lieutenant Campbell was perfectly fober and re­ collected. 2do, I f Lieutenant Campbell had been in life, and himfelf the defender in this aCtion, he could not, as a man of honour and truth, have employed this argument, nor would he have dared to offer to great an inlult, and even injury, to the gentlemen now mentioned, and their wives. In confequence of his frequent and iolemn afturances that the purfuer was his lawful wife, and upon one occafion even calling the Supreme Being to witnefs the truth of his affirmation, thefe gentlemen, and especially their wives, were induced to hold fociety with the purfuer Mrs Campbell, which Mrs Murray Drummond exprefsly depones, p. n.A. flie would not otherwife have done. Is it poflible to conceive then, that if in life Lieutenant Camp­ bell would have told this fupreme tribunal, and of courfe thefe gentlemen and their wives, that all that was faid and done by him, in relation to his marriage with the purfuer, was entirely in jefl? I f he had prefumed to do fo, your Lord fliips would have taught him, that in the mod folemn and important of all con­ tracts, that of marriage, the laws of God, and of this land, were not to be jcjled with, and that the legal confequences mud be the lame, whether in jefl: or in earnefl. And with regard to thofe perfons whom he had induced by fuch jokes, to hold frequent fo­ ciety with a perfon whom they neither could nor would otherwife have allociated with, they would have been juftly entitled to de­ mand fatisfaCtion, and reparation for fo injurious an infult. I f p. 68. I f the purfuers are well founded in thefe obfervations, and it appears that Lieutenant Campbell himfelf could not poflibly have urged this plea, it follows of necellary confequence, thac the defenders, who are flanding in his Shoes, and pleading precife- ly in his right, can never be permitted to maintain it. In th e fecondplace, It was contended, that till the jaunt to Kinghorn, ‘ it never entered into the head of any perfon breath- Anf. p. 62. ‘ ing, that they were married perfons, or that he ever meant to ‘ conlider the purfuer as his wife, and therefore, it is only af- ‘ ter that period, that any proof of habit and repute can avail.’ And it is afterwards added, ‘ That fince an adtual celebration of — ‘ marriage has been founded on, the purfuer ought to have done 5 her endeavours to have proved that, before file reforted to the ‘ habit and repute.’ It is anfwered, 1 mo, That when two or more grounds of a&ion are libelled in any fummons, and each of them taken feparately is, per fe,relevant to infer the conclusions of the libel, it is nei­ ther proper nor necellary to prove the whole. It has been above noticed, that after raifing this action, the purfuer was advifed to reftrid her proof to marital cohabitation, acknowledgment and habit and repute, as thefe particulars, if proved, were fully fuffi­ cient ad viSlorian. And, it is humbly Submitted, that it is neither neceffary nor proper to bring more evidence in any* cafe than is fufficient to prevail in the adion. If, in this cafe, the purfuer had proved the adual celebration, She would have flopped there, as nothing more was necellary; but having betaken herfelf to the proof of habit and repute, with the other circumflances above mentioned, and in which fhe hopes that flie has fully fucceeded to the fatisfadion of the Court, the other party has no right to tell her, that flie fliould have gone Still further, and to have loaded this proof, already perhaps too bulky, with the additional evidence of celebration. With regard to what is faid of limiting the period of proof to the time fubfequent to the journey to Kinghorn, it is Submitted, that, having relied her caufe upon the proof of habit and repute, and acknowledgment, the purfuer was well entitled to carry it back to a period prior to that journey, and which, it is fubmitted, flie has accordingly done, in a manner that is perfedly con­ clusive. In the third place, Refpeding the acknowledgment by Lieu­ tenant Campbell of his marriage, it is maintained, upon the other fide, that, down to a very few weeks previous to his death, his fervants and intimate acquaintances were furprifed when Lieutenant I T Anf. p. 67. p. 64. p. 64 Lieutenant Campbell faid he was married; and it is particularly dated, ‘ that one and all of them depone that they never beard fo, or ever thought of fuch a connection till the Lieutenant faid ‘ it.’- The purfuers, however, appeal to the evidence itfelf in proof that the very reverfe of what the defenders have alleged is the true import thereof, as all of them, even thofe mod favourable to the defender, admit, that they heard a report in the country of the marriage in quedion, and that the hearing thereof was the true reafon of their inquiries at Lieutenant Campbell concerning its truth. It has alfo been dated, that mod of the witnedes examined on the part o f the purfuer were didant connections of her own, and of that condition of life which would induce them to be of fer- vice to her. Here, again, the fad is totally mifreprefented, the truth being, that the witnedes, Mr and Mrs Murray Drummond, Mr and Mrs’ Orr and others, upon whofe tedimonies the purfuer chiedy reds her caufe, have no connexion whatever with her. While, on the other hand, your Lordfhips will perceive, that mod of the witnefles adduced on the part of the defenders, are either their prefent or old fervants, or perfons conneded with, or dependent upon the family o f Edinchip. It was further contended, that the purfuer remained * fimple Kate to the lad,' which the defender avers to be one of the dronged circumdances in this caufe. But beddes, that it is not true, the evidence being complete, that, on many occafions, fhe was called Mrs Campbell in prefence of the Lieutenant himfelf, it is clearly edablifhed by the proof, to be cudomary in that part o f Scotland, as, indeed, it is well known to be ufual in every other part of it, for not only their hufbands, but alfo the intimate ac­ quaintances and companions of married women, to give them their Chridian names in common converfation. It is unneceflary to repeat what was formerly dated, with re- fped to the reafon of the purfuer defiring livery meal after the death of Lieutenant Campbell, a circumdance which, for very bbvious reafons, the other party ought to have pafled over in filence, feeing that the meal was never delivered, and adually refufed, p. =53. C. I his, and lome other circumdances in the condud of the purluer, can be explained in the mod fatisfadory manner, from the tempo- jary mifapprehenfion die was under as to the confequences of the lofs oj he/ marriage-lines. But it is humbly conceived, that fuch a midake can never he permitted either in law or equity, to have fo diong an effcdas to deprive, not only herlelf, but alfo the in- nocent —nocent offspring of her marriage with Lieutenant Campbell, o f their juft and legal rights. Let the cafe be fuppofed, that Lieutenant Campbell and the purfuer had entered into any other contrad, fuch as a fale of moveables, which, by law, is capable of proof by parole evi­ dence, as well as by writing, and that Inch contrad, being con- ftituted by writing, the fame had afterwards been loft, or acci­ dentally deftroyed. Let it further be fuppofed, that the purfuer, from a temporary mifapprehenfion, that the contrad was not ca­ pable of proof by witnefles, and, confequently, was good for no­ thing after the writing was loft, had exprefted herfelf according­ ly to this purpofe, that the contrad did not fignify, having no­ thing to fhew for it; but that being afterwards better inftruded, the infilled to prove by parole evidence, that fuch an agreement had been truly entered into. The purfuers will beg leave to afk, if, in fuch a cafe as that which has been now put, Lieutenant Campbell, or the now de­ fender, as coming in his right, could have pleaded, or would have been liftened to for one moment in a court of law, in plead­ ing, that, becaufe the purfuer, after having loft the written con­ trad of fale, had ignorantly faid there was no contrad, this fliould be an eftedual bar againft her proving the agreement by witnefles. And, it is fubmitted, that the argument employed by the other party upon this branch of the caufe is equally un- juft and unfounded in law, as their plea would have been in the cafe now fuppofed... The defender further contended as follows: ‘ The matter is not, whether, in general, habit and repute conftitutes a marriage, * but whether the fads and circumflances of this cafe can at all ‘ be confidered as conftituting that juft, true and deliberate ac- ‘ knowledgment of the relationfhip of hufband and wife. It is * there that the merits of this cafe lie. In all fuch queftions, the ‘ cales decided by the Houfe of Lords, viz. that o f Macinnes ‘ againft More, 20th December 1781, and Taylor againft Kello, ' 16 th February 1786, are to be confidered as the guide.’ * It is anfwered, that the purfuers do not controvert, that the acknowledgment of marriage founded on by any party ought to be deliberate; but they muft be permitted pointedly to maintain, that the decifions lounded on by the other party are in no re* fped applicable to the prefent cafe. ' In the cafe of Macinnes, it will be remembered, that the de­ clarator of marriage was founded folely upon a letter granted to her by the defender Alexander More, wherein he writes • ‘ here F ' f Anf. p. 98 »• i I I / > f [22] < by acknowledge, that you are my lawful wife.' I> ut in bis judicial declaration, the defender declared, that he never entertained any idea of making the purfuer his wife; and that the letter found e on, befides being antedated, was extorted from him, under the apprehenfion of danger from her relations. Notwithftanding of this the Commiflaries, and afterwards your Lordfhips, gave lo ftrong an effied to this written acknowledgment, that you tound the marriage thereby proved.., It is true, that the Houfe of Lords altered the judgment upon this ground, that there was no fufficient proof of any marriage or matrimonial contrad having paffed between the purluer and de­ fender. But it will immediately occur, that an acknowledgment of this nature, though in writing, which the perfon was concufled to grant, vi et metu, is totally different froni_the numerous__deli- berate acknowledgments, made before fundry refpedable witnel- febyLicutenant Campbell, and thefe followed by a long feries of cohabitation with the purfuer as hufband and wife._ "In the cafe of Taylor againft Agnes Kello, the queftion turned upon the import of two miflives, mutually granted, containing an acknowledgment of marriage. It appeared, however, from the future proclamation of banns, made with confent of parties, and other circumflances, that the parties did not underftand them- felves to be married at the time thefe letters were wrote j and there was no evidence produced of any Notwith­ ftanding of which, your Lordfhips adheicd to the judgment of the Commiflaries, ‘ finding the mutual obligation relevant to in- « fer marriage betwixt the parties, and finding them married per- ‘ fons accordingly.’ This judgment was alfo reverfed by the Houfe of Lords, upon this ground, that the two letters, figned by the parties refpedively, and mutually exchanged, were not in­ tended by either, or underftood by the other, as a final agree­ ment., i i • i n.It is fubmitted, however, to be perfectly clear, tnat this laft- mentioned cafe has no relation whatever to the prelent one, where numerous acknowledgments, a long train ot cohabitation, joined to general habit and repute, all concut in proving, that the matrimonial contract was formed in the moft delibeiate manner, c This leads to obferve, in the lajl place, That a promile or mar­ riage, and fubfequent copula, when clearly proved, are fufficient, by the law of Scotland, to conftitute marriage. In the prefent cafe, the repeated acknowledgment of marriage by Lieutenant Campbell, deliberately made, mufi, in realon and law, be conii- dered dered as affording ftill ftronger evidence of confent, de prafenti, than any promife can be fuppofed to give, and that followed by long cohabitation, and the confequent birth of a child, is enti­ tled, by the principles of reafon and law, and the uniform train of the decifions of this Court, to have the legal effed of conftituting marriage. Upon all thefe grounds, it is humbly hoped, that your Lord- fliips will have no difficulty in finding fads and circumflances fufficiently proved to eftablifh, that a marriage was adually con- traded betwixt the deceafed Lieutenant Campbell and the pur­ fuer Katharine Macgregor, and to remit the caufe to the Com- miffaries, with inftrudions to alter their judgment, and decern in terms of the declarator of marriage and legitimacy. The purfuers cannot conclude without exprefling their fincere regret, that they have encroached fo much upon the patience o f the Court; but they flatter themfelves, that the great importance of the caufe to both purfuers, and particularly to Colin Campbell, who is proved, beyond all doubt, to be the fon of the late Duncan Campbell, will plead their excufe. In refpeEl whereof, idc. ED. M cCO RM ICK. 1 i *