Dundee Society in the 19th Century

19th Century - The Sheriff Court and Dealings
Regarding the Poor.

From the Poor Law Magazine for Scotland 1838 to 1868

SHERIFF COURTS - FORFARSHIRE DUNDEE

Sheriffs Guthrie and Maitland Heriot

Henry Jack, Inspector, Dundee. - Pursuer

George Sheriffs, Inspector, Kirkden. - Defender

Settlement by Marriage,--John Booth married Janet Battison in 1838

He also went through a marriage ceremony with Catherine Stewart in 1841

Although Battison was alive. Battison died in 1842. Booth and Stewart cohabited together till June 1857, when he deserted her, and she became a pauper. Held that the cohabitation subsequent to Battison’s death did not realise the illegal ceremony which had passed between both and Stewart, and that Stewart had no claim on Booth’s parochial settlement.

The full facts of this case are detailed in the following report of the debate on the merits, before the Sheriff - Substitute (Guthrie Smith) and the judgments pronounced in the case

At the Debate:-

Mr Hay, for the pursuer, stated the circumstances to where a poor woman named Catherine Stewart or Booth having been deserted by her husband in Dundee, in June, 1857, and labouring under total paralysis, and a state of destitution, she had to be taken charge by the parochial board. Having no settlement in Dundee, a claim was made against the parish of Kirkden, as the birth place of her husband. She produced evidence of her marriage with John Booth, who had abandoned her, and left the place, and the evidence showed that he had disappeared for about thirteen weeks, and it seems, when his whereabouts was discovered, he repudiated his connection with the pauper. The parochial Board of Kirkden, after consideration, admitted the case as chargeable to that parish, and on several occasions wrote promising payment of the interim ailment afforded by Dundee. In September, 1858, however, about fifteen months after the chargeability, the Inspector of Kirkden, having discovered Booth, refused to pay the money, as Booth the marriage, unless Dundee could show a legal marriage. Dundee while holding by the admission, made further investigation, and as the woman’s birth settlement was in Perth, intimated to that parish that, in the event of there being no legal marriage. Perth would be liable in relieve Dundee, and seeing that the woman would be a permanent pauper, this action is prosecuted to try the question of marriage.

Mr Hay submitted that Kirkden could not withdraw the admission, at least to the extent of the advances made by Dundee upon the faith of it. But the main point was the question of the marriage, and whether the parities could be made out by the law to be married.

He admitted that is was shown that, before the marriage in Dundee, between Booth and the pauper, Booth had been previously married to Janet Battison, in 1838 , and that Battison was alive in Stirlingshire in 1842, and died in December of that year. On the part of Booth, there was a double marriage. But there was this further element in the case, that although the marriage ceremony in 1841 between the parties was not effectual, in consequence of the prior marriage of Booth, still after Battison’s death in 1842, Booth was free to marry again, and by his cohabitation with the pauper, from1842, up until 1857, as husband and wife, he contended that a marriage was made by the law of Scotland. He regretted that such a question as this should be raised in this Court, and confessed the difficulty of the subject. - indeed, no person could tell what the law of marriage was in this country.

The Sheriff--The Lord President, when a witness on the marriage law, was asked by a Committee of the House of Commons whether he knew if he himself was married, and he replied he was not altogether sure of it.

Mr. Hay continue many thousands cannot tell. It can be effected in ways so various against consent.; and even in the numerous cases that come before the Courts there arises invariably so much difference of opinion among Judges, some arguing ably one way, and some ably on the other side, that we are altogether at sea on this branch of the law. Even in the last case of Leslie we had three judges against two, and the Lord President, perhaps the best lawyer in Scotland, was in the minority.

The sheriff - In this Court we will not have that disadvantage.

Mr Hay--He was aware that he had to contend against the general principle announced in the Dalrymple hat in a case of an irregular marriage, where a connection was begun in convening, there must be evidence of a change of the connection from its illegitimacy to that of the nature of marriage. But he submitted that the principle of these cases did not apply here, because the woman was a bona fides at the commencement of the connection. She was formally married after open proclamation, and was in total ignorance of any impediment to marriage, and in her mind there was no concubinage and therefore the principle might not apply to her. If Not, even were we to throw the ceremony of 1841 out of view, she and Booth cohabited as man and wife, and were know and held as such by their neighbours for sixteen years. Had they come together for the first time in 1843, there can be no doubt that the habit and repute would have made them married; and as she was honourable in her intentions from the beginning, he did not see why she should, by the deception which had been practiced on her.be deprived of the general operation of the law of habit and repute. It was indubitable a marriage of some sort. It was what was called a putative marriage; and it has been decided that children born of such a marriage would be held legitimate.

The Sheriff--That is a question of legitimacy; but I doubt whether that doctrine applies here

Mr Hay-- the principle is the same; it is the law will not punish the innocent; and when the children would be legitimate, why should the innocent mother be denied the same privilege?

The Sheriff - Booth is against you in the habit and repute.

Mr Hay - No doubt there is also a class of cases where parties, by a written agreement, consent to live together, in illicit intercourse, and who to save appearances, have one or two instances, given effect to mere farce. The courts have, in one or two instances, given effect to their true connection, and decided against marriage; but in Scotland alone is such a system even tolerated. In this case however, there was bona fides on the part of the woman; and he admitted that, according to the general law of habit and repute, there was nothing in her first misfortune to deprive her of the privileges derivable from that law.

Mr White, for the defender, admitted that the principal point was, whether Booth and the pauper were married persons. Now, while he admitted that the ceremony had been gone through, still it could never in law be marriage, because Booth had been formerly married, and the first wife was alive. After a good deal of searching, this had been discovered; and it is distinctly proved that janer Battison, the first wife, had been imprisoned in Stirling Jail in 1842. Being alive, therefore, in 1842 the marriage of the pauper with Booth, in 1841, was null and void. But Mr Hay, conscious of this, attempted to get over the difficulty on this way. He said that a marriage--although bad originally-- may be made good by subsequent cohabitation, and habit and repute. Now he referred to the same case of Dalrymple, spoken by Mr Hay, where it was laid down that a connection begun in illicit intercourse continues so without some plain manifest change could be shown in its circumstances. He referred to “Fraser’s Law of marriage”, where it was laid down that any second marriage was null and void. The case of children, born of such a marriage as the present, is special, and the privileges accorded to them rendered necessary for the interests of society; and such children me be legitimate, but that did not apply to the marriage itself, or to the connection of the parties. In short, he held that the second marriage was no marriage in law at all - was null and void--tainted from its origin, and cannot be remedied; and, consequently, the pauper not being the wife of Booth, Kirkden was not liable in the settlement. The case must be decided by strict law, and apart from the consideration of the wounded woman, as to which Mr. Hay tried to induce his Lordship’s sympathy. As to the other branch of the case, he held that Kirkden, having made the admission, under a wrong understanding of the facts, was entitled, whenever they learned the mistake. To withdraw their admission at least so as to be liable only for the advances made after the date of their admission, and up to the date of the recall, which could be easily calculated

The sheriff said he would take the case to avizandum.

On advising the case be pronounced the following finding -

Forfar, 25^th April, 1861.- the sheriff-substitute having heard parties procurators on the whole cause, and made a avizandum; finds that the sums claimed in this action were advanced to the pauper Catherine Stewart or Booth, by the parochial Board of Dundee, in which parish she was found destitute, and entitled to relief, without having a legal settlement therein, in the month of August, 1857., and that Kirkden is the birth parish of a person named John Booth, who went through a form of marriage with the said Catherine Stewart or Booth, in presence of the late Rev. Mr Cross of Dundee, he was already married to a person named Janet Battison, the ceremony having been performed at Fintry, by the minister of that parish, the Rev, Mr Coltart, on the 16^th February, 1938; and which Janet Battison died at Stirling in December, 1842; finds that the said John Booth lived with the said Catherine Stewart or Booth, who believed to be his lawful wife, and was so accounted by some of the neighbours from the year 1841 till 1857, when he deserted her, finds that as the marriage celebrated between Booth na the said catherine Stewart of Booth was null, in consequence of the prior subsisting marriage, and the sixteen years’ cohabitation of Booth and the pauper was in its origin illicit, the pursuer has failed to establish in evidence facts and circumstances relevant to infer that they ever married persons, finds that though if appears from the minutes of the Parochial Board of Kirkden that the pauper was admitted to the roll of paupers belonging to the parish, under 16th February, 1858, and the same was not recalled till 15^th September same year, never the less. As the said admission proceeded upon the erroneous matters contained in the pursuer’s letter to the defender of the 21^st August, 1857, particularly the statement that Booth was lawfully married on 21^st August, 1835, the defender cannot now be affected by said admission; and in respect it is not proved that the pauper, the said Catherine Stewart or Booth, is the wife of the said John Booth, finds that she has no settlement in the parish; therefore assoilizies the defender from conclusions of the summons; finds him entitled to expenses, of which allows an account to be given in and taxed and decerns.

(signed) “J. Guthrie Smith “

“Note--It was admitted on both sides, and may be assumed beyond doubt, that there was a double marriage above referred to. Booth himself denied it, but the one marriage is just as clearly proved as the other--viz., ailia, by a woman who was present. The woman Stewart had evidently no knowledge of the existence of the first marriage; and as for Booth, although he had separated from Janet Battison, his first wife, shortly after their marriage, yet that event was still comparatively recent, and if is difficult to suppose that he believed her to be dead. The bona fides of one or both of the parties to the second marriage is, however, of little moment in the presence of the fact that, if the Janet Battison who appeared with Booth before the minister of Fintry in 1838 is the “Black Jess” of the streets of Falkirk, and the Janet Battison of Stirling Jail in 1842, she was in life for nearly a year and a half after the pauper was married to Booth in1841. The pauper’s marriage was therefore, was absolutely null; and the only further question is, whether sixteen years’ cohabitation converted and intercourse in its inception adulterous and illicit into lawful marriage.

“Assuming that there is no formal objection to the decision of this questioning thus process--a point which was not argued - is to be kept in view of that cohabitation for any length of time as married persons does not constitute marriage, it only ’presumeth’ as Lord Stair has it, that at some antecedent term there was interchanged that present absolute and unconditional consent to take each other as man and wife from that moment forward, which, in the law of Scotland, is the only requisite to constitute the married relation.

Obviously when, as here, the intercourse begins under circumstances which make the valid interchange of that consent legally impossible, the onus probandi is doubly burdensome. For eighteen months, at least, of their supposed married life, these parties were no better than man and mistress; and, considering pf, conditions under which people of that class live, the feebleness, or, rather the total absence of the moral restraint of society, and their contempt for the properties of kife, it would require very positive evidence of a decided change on both sides to convert a loose relation of the above kind into one of the sacred character which the pursuer says he has proved that it bore. No change could take place on the part of the woman, because she seemed honestly to have believed that the ceremony, to which she was a party, was valid and binding. But the man himself now positively denies and never seems to have really admitted that she was ever his wife. One witness says she heard him say so, but another states “I have heard Booth whiles admit she was his wife, and whiles no; he seemed to make a joke about it when the matter was put to him; he said he would get folk to prove there was no marriage, and this alleged wife herself, who is said to have got very sore about it” the witness Reith, though one of doubtful credit did not seem to have shared in the general opinion that they were married. On the whole, therefore, the repute in this case does not satisfy any conditions laid down by all authorities as essential to the making it of any value. Taking the most concise and comprehensive statement of the law to found anywhere, mainly, in the judgment of Lord Moncrieff, in Lapsley and Grierson, November 19. 1845. D.P. 61, these conditions seem to be, (1) the cohabitation must have been for a considerable period, (2) The repute must have been undivided during the whole period; (3) The acts must have been done with the deliberate intention by both parties to constitute marriage di presenti from the beginning; and (4) the parties must have been so situated that they could give an unconditional assent to all interests and purposes. Perhaps the period in this case--namely, sixteen years--was long enough; but it cannot be said that the repute was undivided; or that the opinion of the neighbours was formed upon facts done by both parties, with the design of making themselves married; for an intention to be married is a totally different thing from holding out as married. (See Irvine and Ker, 16951 Fraser 212)

“On learning the possibility of the case issuing in the above result the pursuer seem to have given the statutory notice to Perth, which is the pauper’s own birth parish, and he contended that the defender was liable to him for the advances up to the date of the recall of his admission of the claim. The answer if that the admission was made by mistake. That standing by itself would perhaps be no answer at all, because a public board should do nothing without full enquiry , and though possibly, it would not have the effect of making the pauper a permanent burden on the parish (inasmuch as it is the parish to which the poor person belongs that is to reimburse the relieving parish, whether the claim on the former is admitted or otherwise ascertained, s. 71, Poor Law Act) still it is conceivable that a claim of damages might lie at the instance of the relieving parish in consequence of an admission too hastily made, and on better information subsequently recalled any such question, however, does not arise here. This is not an action of damage’s and supposing it were, the only fault of the defender lay in believing the pursuer the letter of 21^st August 1857, conveyed a most inaccurate representation of the facts; and to subject the defender to any liability on account of an admission made under such circumstances would be a violation of the principle that no man shall profit by his own wrong”

(Intitd) “J.G.S.”

On appeal, the Sheriff-Principal (Heriot) pronounced the following Interlocutor and Note;--

Edinburgh, 25^th February, 1862--The sheriff having considered the appeal for the pursuer, against the Interlocutor of 25^th April, 1861, with the relative reclaiming petition for the pursuer, and answers for the defender, and whole process, with the exception of the last finding in the said Interlocutor relative to expenses adheres to the Interlocutor appealed against and dismisses the appeal; but in respect that the pursuer alleges, in his reclaiming petition that, before the date when proof was entered on, and the subsequence expense incurred, he wrote various letters to the defender, asking for information as to Booth’s previous marriage, and that the defender refused to give him any information on the subject said letters to the Sheriff-Substitute, that he may call for production of the said letters referred to, and, after seeing the same, may consider what effect, if any, they should have as to expenses incurred subsequent to their date, and may dispose of the whole question of expenses and decerns.

(Signed) Fred. L. Maitland Heriot.

Note: - The Sheriff has carefully considered the reclaiming petition and the answers and the various authorities referred to. - 1^st, he is clearly of opinion that the pursuer has failed to prove that Stewart was married to Booth. This case is ruled by the case of Lapsley referred to. The parties in the present case began their intercourse in adultery during the life of Booth’s first wife, and the Sheriff cannot discover in the evidence any such palpable and distinct change in the character of their connection, as would be necessary in the circumstances to make marriage. There is no such change of character here as occurred in the case of Innes,7^th July, 1835, referred so by the pursuer. In endeavoring to overcome the application of Lapsley’s case to the present one, the pursuer says, with reference to this case;--” we have first the actual intention of the parties to enter into marriage contract” &c. Now we may have the intention of one of the said parties, but we certainly have not that intention on the part of the other; but even the intention of both parties to enter into a marriage, is during the life of the first wife would not be sufficient. 2d, As to the “admission” by the Board of Kirkden, the sheriff cannot concur with, the pursuer to holding that is to be founded on to the effect of making the authorities of that parish pay for a party for whom otherwise they are not responsible. Assuming the “admission” in reply to the statutory “claim” to amount to a binding contract between the parties, as the pursuer contends, still error invalidates, consent in any such contract, and the Sheriff is pf opinion that there was here such error. It may be that both parties were led into error by the woman Stewart herself. At the same time, the defender was to some extent led into error by receiving the erroneous information through the pursuer himself. 3d, in the meantime the Sheriff pronounces no opinion on the question of expenses, which will be more satisfactorily disposed of, after the letters referred to are produced and considered.

(intld.) F.R.M.