Dalrymple v Dalrymple

JurisdictionEngland & Wales
Judgment Date16 July 1811
Date16 July 1811
CourtConsistory Court

English Reports Citation: 161 E.R. 665

IN THE CONSISTORY COURT

Dalrymple
and
Dalrymple

Discussed, Reg. v Millis, 1844, 10 Cl. & F. 534. Referred to, Earl Nelson v. Lord Bridport, 1845, 8 Beav. 537. Applied, The Hallay, 1867, L. R. 2 Adm. & Ec. 17; Longworth v. Yelverton, 1867, L. R. 1 Sc. App. 224; Sottomayor v. De Barros, 1877, L. R. 2 P. D. 89. Explained, In re Goodman's Trusts, 1881, 17 Ch. D. 281. Referred to, Mackonochie v. Lord Penzance, 1881, 6 A. C 447. Adopted, The Dysart Peerage case, 1881, 6 A. C. 515. Referred to, Collins, 1884, 9 A C 230.

[54] dalrymple v. dalrymple 16th July, 1811. - Marriage, by contract without'^* ~~,^. religious celebration, according to the law of Scotland, held to be valid : distinction,'^ 0; Z-as to the state of one of the parties being an English officer on service in thatfy31- f-country not sustained. [Discussed, Beg. v Afitfts, 1844, 10 Cl. & F. 534. Referred to, Earl Nelson v. Lord Bridpart, 1845, 8 Beav. 537. Applied, The Hallay, 1867, L. R. 2 Adm. & ec. 17 ; Lonffworth v. Yelverttm, 1867, L. R. 1 Sc. App. 224; Sottomayor v. De Barros, 1877, 6-66 DALRYMPLE V. DALRYMPLE 2 HAG. CON. 55, L. R. 2 P. B. 89. Explained, In re Goodman's Trusts, 1881, 17 Ch. D. 281. Keferred to, Mackonoehte v. Lmd Penzauce, 1881, 6 A. C 447. Adopted, TheDysait Peerage, case, 1881, 6 A. C. 515. Referred to, Collins v. Collins, 1884, 9 A C 230.] This was a case of restitution of conjugal rights brought by the wife against the husband, in which the chief point in discussion was the validity of a Scotch marriage, per verba de prtesenti, and without religious celebration . one of the parties being an English gentleman not otherwise resident in Scotland than as quartered with his regiment in that country. Judgment-Sir Willtatn Scott The facts of this case, which I shall enter upon without preface, are these: Mr. John William Henry Dalrymple is the son of a Scotch noble family, I find no direct evidence which fixes his birth in England, but he is proved to have been brought up from very early years iu this country. At the age of nineteen, being a cornet in His Majesty's Dragoon Guards, he went with his regiment to Scotland in the latter end of March or beginning of April, 1804, and was quartered in and near Edinburgh during his residence in that country Shortly after his arrival, he became acquainted with Miss Johanna Gordon, the daughter of a gentleman in a respectable condition of life What her age was does not directly appeal-, she being described as of the age of twenty-one years and upwards : she was, however, young enough to excite a passion in his breast, and it appeals that she made him a return of her affections . he visited frequently at her father's house in [55] Edinburgh, and at his seat in the country at a place called Braid A paper without date, marked No 1, is produced by her: it contains a mutual promise of marriage, and is superscribed "a sacreed promise." A second paper, No. 2, produced by her, dated May 28, 1804, contains a mutual declaration and acknowledgment of a marriage. A third paper, No. 10, produced by her, dated July 11, 1804, contains a renewed declaration of marriage made by him, and accompanied by a promise of acknowledging her the moment he has it in his power, and an engagement on her part that nothing but the greatest necessity shall compel her to publish thia marriage These two latter papers were inclosed in an envelope, inscribed " Saereed promises and engagements," and all the three papers are admitted or proved in the cause, to be of the handwriting of the parties, whose writing they purport to be. It appears that Mr. Dalrymple had strong reasons for supposing that his father and familj would disapprove of this connection, and to a degree that might seriously affect his fortunes; he, theiefore, in his letters to Miss Gordon repeatedly enjoined this obMgation of the strictest secrecy; and she observed it, even to the extent of making no communication of their mutual engagements to her father's family; though the attachment and the intercourse founded upon it did not pass unobserved by one of her sisters, and also by the servants, who suspected that there were secret ties, and that they were either already, or soon would be married. He wrote many letters to her, which are exhibited m the cause, expressive of the warmest and most devoted passion, and of unalterable fidelity to his engagements, in almost all of them applying the [56] terms of husband and wife to himself and her. It appears that they were in the habit of having clandestine nocturnal interviews both at Edinburgh and Braid, to which frequent allusions are made in these letters. One of the most remarkable of these nocturnal interviews passed on the 6th of July at Edinburgh, where she was left alone with two or three servants, having declined to accompany her father and family (much to her father's dissatisfaction) to his country-house at Braid. There is proof enough to establish the fact, m my opinion, that he remained with her the whole of that night He continued to write letters of a passionate and even conjugal import, and to pay nocturnal and clandestine visits during the whole of his stay in Scotland; but there was no cohabitation of a more visible kind, nor any habit and repute, as far as appears, but what existed in the surmises of the servants and of the sister. His stay in that country was shortened by his father who came down alarmed, as it should seem, by the report of what was going on, and removed him to England on or about the 21st of July. The correspondence appears to have slackened, though the language continued equally ardent, if I judge only from the number exhibited of the letters written after his return ; thoogh it is possible, and indeed very probable, there may be many more which are not exhibited. No letters of Miss Gordon's addressed to him are produced ; he has not produced them and she has not called for their production. In England he continued till 1805, when he sailed for Malta : his last letter, written to 2 HAG. COM. 57. DALRYMPLE V. DALRYMPLE 667 her on the eve of bis departure, reinforces his injunctions of secrecy, and conjures hef to withhold all credit from reports that might reach her [57] of any transfer of big affection* to another: it likewise points out a channel for their future correspondence, tihrough the instrumentality of Sir Rupert George, the first commissioner of th$ Board erf Transports He continued abroad till May, 1808, with the exception of a month 01 two in the autumn of 1806, when he returned for a purpose unconnected with tlis history unknown to his father, and as it appears, to this lady. It is upon this occasion that the alteration of his affection first discloses itself in conversations with a. Mr. Hawkins, a friend of his family, to whom he gives some account of the conneution which he had formed with Miss Gordon in Scotland, complains of the copsequeneea of it, in being tormented with letters from her, which he was resolved never to read in future; and having reason to fear she would write others to his father, he requested Mr. Hawkins to use all means of intercepting any letters which sh might, write either to the one or the other. Mr. Harfrkins executed this commission by intercepting many letters so addressed , though^ m consequence of her extieme importunity, he forwarded two or three as he believes of those addressed to Mr. Dalrymple; and he at length wrote to her himself, about the end of 1806, or beginning of 1807, and strongly urged her to desist from troubling General Daliymple with letters. This led to a correspondence between her and Mi Hawkins; and it was not till the death of Mr. Dalrymple's father (which happened in the spring of the year 1807) that she then asserted her marriage tights, and furnished him with copies of these important papers which she denominates according to the style of the law of Scotland, her " marriage lines." She took no s^eps to enforce [58] her rights by any process of law. Upon the unlooked-for return of Mr. Dalrynaple in the latter end of May, 1808, he immediately visited Mr. Hawkins who communicated what had passed by lelter between himself and Miss Gordon, attd suffered him, though not without reluctance, to possess himself of two of her letters, which Mr. Dalrymple has exhibited. Mr. Hawkins however dismissed him with the most anxious advice to adhere to the connection he had formed; and by no means to attempt to involve any other female in the misery that must attend any new matrimonial connection. Within a very few days afterwards Mr. Dalrymple marries Miss Laura Manners in the most formal and regular manner. Miss Gordon, ijfho had beiore heard some reports of no very definite nature, instantly, upon hearing authentic news of this event, takes measures for enforcing her rights; and being informed that he is amenable only to this jurisdiction, she immediately applies for its aid to enforce the performance of what she considers as a marriage contract The cans* has proceeded regularly on both sides, and has been instructed with a large mass of evidence, much of it replete with legal erudition for which the Couit has to acknowledge great obligations to the gentlemen who have been examined in Scotland.* It has also been argued with great industry and ability by the counsel on both sides, and now stands for final judgment. Being entertained in an English Court, it must be adjudicated according to the principles of English law [59] applicable to such a case. But the only principle applicable to such a case by the law of England is, that the validity of Miss Gordon's marriage rights must be tried by reference to the law of the country, where, if they exist at all, they had their origin. Having furnished this principle the law of England withdraws altogether and leaves the legal question to the exclusive judgment of the law of Scotland. I am not aware that the case so brought here is exposed to any...

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  • TRICKED INTO MARRIAGE.
    • Australia
    • Melbourne University Law Review Vol. 42 No. 1, August 2018
    • 1 August 2018
    ...should not be able to assert his or her own mental reservation as a justification for nullifying the marriage: Dalrymple v Dalrymple (1811) 161 ER 665. (92) Lee (n 9) 271 (93) United States v Rubenstein, 151 F 2d 915, 919 (2nd Cir, 1945). (94) See, eg, Puttick v A-G [1980] Fam 1 ('Puttick')......

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