An Irregular Marriage?.....

[BobG]

I didn't quite know where to post this newspaper article I located while searching the online archives of the Scotsman Newspaper for information concerning my relatives. Though not related to this particular “Jessie Grigor”, I found this to be a good example of an irregular marriage... gone wrong. It's long but interesting to read and educational.


"The Scotsman” dated 27 May 1869, page 7
Court Session
1st Division
Tuesday May 25, 1869

Forster v. Forster

This was an action of declarator of marriage, brought by, Jessie Grigor or Forster against James Ogilvie Tod Forster, the eldest son of Mr. Forster, of Findrassie, residing at Findrassie House, near Elgin. The pursuer was a housemaid at Findrassie House. She pleaded that she had been married to the defender by mutual declaration and consent de presenti. The pursuer founded her case principally upon the a declaration written upon the defender’s bible, which she alleged that he had written and had given her. The declaration was in the following terms:- “I James Ogilvie Tod Forster, take thee, Jessie Grigor, to be my wedded wife from this day henceforth till death us do part, and thus do I pledge thee my troth. – I, Jessie Grigor, take thee, James Ogilvie Tod Forster, to be my weded husband from this day henceforth till death us do part and thus do pledge thee my troth. – James Ogilvoe Tod Froster, Jessie Grigor.—Sept.2, 1865.” The defender denied that he had written this declaration. After a proof, the Lord Ordinary (Manor) gave judgment in favour of the pursuer, holding that the declaration was proved to have been written by the defender, and that it expressed in words as clear and explicit and unqualified as any that could have been used, the present consent of the parties to take each other as husband and wife. The defender reclaimed; and to-day the Court adhered, and Lord Ardmillan, who delivered the judgment of the Court, stated that he rested his opinion of the authenticity of the writing on the evidence of the witnesses who were acquainted with the handwriting of the defender, and that the Court did not give any weight to evidence of engravers or other skilled witnesses.

Counsel for the Pursure-. Mr Gifford and Mr Keir
Agents- Messrs MacDonald and Roger, S.S.C.
Counsel for the Defender- Mr. Clark and Mr Asher.
Agents- Messrs Adam, Kirk, & Robertson, W.S.

End of Article

IT GETS BETTER…

I found what we might call a “follow up piece”, also in the “Scotsman” dated 13 June 1872, page 2.

SCOTCH APPEAL
House of Lords, Tuesday.
(Before Lord Chancellor Hatherley, Lords Colonsay and Cairns.)

JAMES OGILVIE TOD FORSTER (PAUPER)—Appellant;
v. JESSIE GRIGOR (PAUPER) –Respondent.

This was an appeal from a decision of the First Division of the Court of Session. The respondent, Jessie Grigor, raised an action of declarator of marriage and damages against James Ogilvie Tod Forster. She stated in her condescendence that she was about twenty-three years of age, and in 1865, when of the age of twenty-one, went into the service of the defender’s mother as housemaid. The defender’s mother resided at Findrassie House, near Elgin. She said that soon after she entered the house the defender was attracted by her personal appearance and manners, and began to court her with a view of marriage, that they exchanged promises of marriage, and met frequently unobserved. He presented her with a copy of warm verses, and one day, after many previous meetings, they were alone in the dining-room, when he took his Bible and wrote in it as follows:- “I James Ogilvie Tod Forster, take thee, Jessie Grigor, to be my wedded wife from this day henceforth till death us do part, and thus do I plight my troth.” She made a similar declaration, and both signed the document. Within two or three days afterwards, the defender telling her they were as much married as they could be, and there was no impropriety in their intercourse, the marriage was consummated. During the same month the pursuer was dismissed from her situation, but the defender kept up his relations with her, and visited her at her father’s house, and gave her a ring and a fruit knife—her friends having full knowledge of the circumstances. In 1866, the defender having obtained a commission in the army, and being about to go to Ceylon, at first proposed to marry her before his departure, but afterwards, owing to opposition of his family, pressed on the pursuer the necessity of keeping their marriage secret. In November 1866 she gave birth to a son who, she averred, was the defender’s son. Previous to that event the defender had pressed for a return of his Bible and the written declaration of marriage, which she declined to give up. In conclusion, the pursuer averred that if she failed to establish a marriage between herself and the defender, then she claimed damages for her seduction. Her pleas in law were that there had been marriage by mutual declaration de presenti and by promise, cum subsequenie copula. The defender denied most of the above allegations, and denied that he had signed any such declaration as alleged. The Lord Ordinary allowed a proof, and after consideration thereof, found by his interlocutor that the parties were married persons, and ordained the defender to adhere to the pursuer as his lawful wife: and in the event of his non-adherence, ordained the defender to pay to the pursuer a sum of 60 pounds a-year for aliment. The defender reclaimed to the Inner House, and claimed to be allowed to add proof, which application was refused, and the First Division adhered to the Lord Ordinary’s interlocutor. The defender thereupon appealed.
Lord COLONSAY---I observed it as stated in the paper that both parties are paupers. It is seldom we find both the parties paupers.
Mr. ANDERSON, Q.C., with him Mr SHIRESS WILL, for the respondent, explained that in consequence of the judgment in the Court below, the defender had been proceeded against, and was unable to pay the claim, and had been allowed to appear as a pauper here. He had not appeared in the Court below as a pauper.
Sir R. PALMER, with him Mr CHISHOLM BATTEN, for the appellant, contended that this was a scandalous example of immodesty and misconduct on the part of the respondent, and so far from the evidence leading the Court to the conclusion that these parties were married persons, it ought to have led to the contrary conclusion. The Court below had refused to allow the appellant to give evidence contradicting that relied upon by the Court as proving the signature, which he could have done. He was out of the country at the time the evidence was taken, and so was not in a position to properly instruct his counsel and agent. The Court had also admitted a great deal of hearsay and incompetent evidence. The witnesses had been unworthy of credit, and their evidence loose and incredible. The whole evidence shows that, whatever the pursuer may have been before entering the service of the defender’s mother, she had from an early period shown a total want of propriety and modesty in her conduct. The judgment of the Court below ought therefore to be reversed.
Mr BATTEN followed on the same side.
The respondent’s counsel were not called upon.
The Lord CHANCELLOR said that it was not necessary to hear any argument on the part of the respondent in this case. It was to be regretted that this young man in his position in life should have married somewhat imprudently, that the sole question for their Lordships was whether the fact of the marriage as alleged by the appellant had been established. The case had been tried like any other case; the parties had been allowed to give evidence, were represented on both sides, and ample opportunity had been given to the defender to give evidence contradictory of the case of the pursuer; but he chose, just as the time that the case came on, to go abroad. It was suggested at the bar that, in consequence of his absence abroad, his counsel had not had sufficient materials to defend him. But that was due to his own conduct. He had opportunity given to him if he had availed himself of it, and he did not apply for leave to give further evidence till after judgment was given against him. It would be impossible to allow parties who had had opportunities of defending themselves, to come forward after the decision of the case and add to the evidence. It was suggested that the House might now give him a further opportunity; but there was nothing to justify that application except the point as to the handwriting of the declaration written in the Bible referred to in the case. Now, this signature of the pursuer to that document had, it was true, not been distinctly proved in evidence, but the witnesses called by her could have proved it, and the defender’s counsel did not think fit to cross-examine those witnesses. There was ample evidence that the pursuer had always kept the declaration as an authentic document, and shown it to her fellow-servant, to justify her intercourse with the defender. If, then, the handwriting of the document be treated as genuine, it was clear that the document amounted to a natural declaration of present marriage. Even if the signature of the pursuer be taken as not proved, still it was, as far as he (the Lord Chancellor) was aware, not necessary by the law of Scotland that her signature should be put to such a document. She kept the document in her possession, and acted upon it. Her friends, knowing the circumstances, recognised her as married to the defender; and all the facts proved were quite consistent with the pursuer’s case. The judgment of the Court below was therefore right, and must be affirmed. As the appellant had been allowed to appear as a pauper, it was, perhaps, not competent for their Lordships to dismiss the appeal with costs.
Lord COLONSAY said he entirely concurred. The first point was that the appellant should be allowed to add to the evidence, but he had had ample opportunity of giving evidence before the Lord Ordinary gave his judgment, and had never applied for leave until after that judgment. The evidence in the case was quite conclusive in favour of the pursuer. She had kept this document, which declared the marriage, in her own possession, and even though she had not herself signed it, it might well be deemed a declaration made by both of the parties. That being so, the declaration was clear as evidence of a marriage de presenti, and the judgment of the Court below was right.
Lord CAIRNS concurred.
LORD CHANCELLOR—With regard to the costs, the House will not draw up the order at once, so as to allow of any application by the appellant, but probably the effect of the judgment of the House will be to make the husband liable for the wife’s costs in any event.
Judgment affirmed.

END OF ARTICLE.

BobG

[AnneM]

Bob

That is priceless. I love it!

Anne

[DavidWW]

For anyone interested in such details I can only encourage them to read the 2 books by Leah Leneman Promises, Promises (£20 when I bought it) and Alienated Affections (£12)

Leah has also co-authored another related book with Rosalind Mitchison
Sin in the City: Sexuality & Social Control in Urban Scotland 1660 - 1780(£14)

It all sounds so simple when you read the standard few paragraphs in the definition of irregular marriages that we post on this DG, but it gets a wee bit more complicated than that, most often when some form of dispute arises, e.g. what's a promise?, what's a declaration?, can either be made to a mistress?, and on and on and on

Promises, Promises deals with irregular marriages and Alienated Affections with divorces.

Davie