left next day. I have officiated two years. I saw the prisoner in bed that night." riage, if the rule of the canon law transferred into the law Dalrymple v. of Scotland be sound, that copula converts a promise de Dalrymple. futuro into a contract de præsenti. If it does not, if copula Promise cum copula. is required in a contract de præsenti, what intelligible difference is there between the two; between a promise de futuro and a contract de præsenti? None whatever. They stand exactly upon the same footing-a proposition, I will venture to say, never heard of in the world, except where positive regulation has so placed them, till these recent controversies respecting the state of the marriage law in Scotland. "I might also advert to the marriages at Gretna Green, Gretna Green where the blacksmith supplies the place of the priest or the marriages. magistrate. "The validity of these marriages has been affirmed in England upon the certificates of Scotch lawyers, without reference to any act of consummation; for such, I think, was clearly the exposition of the law as contained in the opinion of Sir Ilay Campbell, upon which the English Court of Chancery grounded its decision in the case of Grierson and Grierson. "What are the cases which have been adduced in contra- Conclusion. diction to this doctrine? As far as I can judge, none. "Upon the whole view of the evidence, looking first to the rule of the general matrimonial law of Europe;-to the principle which I venture to assume, that such continues to be the rule of Scotch matrimonial law, where it is not shewn that that law has actually resiled from it;-to the opinions of eminent professors of that law;-to the authority of text writers;-and to the still higher authority of decided cases-I think, that, being compelled to pronounce Dalrymple v. Jane Little, the wife of the last witness, was then called, and stated-"That the prisoner came a judgment on this point, I am bound to say, that I entertain as confident an opinion as it becomes me to do, that the rule Conclusion. of the law of Scotland remains unshaken. That the contract de præsenti does not require consummation in order to become ' very matrimony;' that it does, ipso facto et ipso jure, constitute the relation of man and wife. Remarks upon the Scotch law. Nature of the matrimonial contract. Of contracts in general. "There are learned and ingenious persons in that country who appear to think this rule too lax, and to wish to bring it somewhat nearer to the rule which England has adopted; but, on the best judgment which I can form upon the subject, it is an attempt against the general stream of the law, which seems to run in a direction totally different, and is not to be diverted from its course by efforts so applied. "If it be fit that the law of Scotland should receive an alteration (of which that country itself is the best judge), it is fit that it should receive that alteration in a different mode than that of mere interpretation. "When I speak of contract, I mean, of course, one that is attended with such qualifications as the law of Scotland requires for such a contract, and which, in truth, appears to me to be very little more than what all law requires for all contracts of every description, and without which an apparent contract upon any subject is, in truth, no contract at all. "It is said that the marriage contract must not be extorted by force or fraud. Is it not the general law of all contracts that they are vitiated by proof of either? "It is said, that it must be a deliberate contract. It is, I presume, implied in all contracts that the parties have taken that time for consideration which they thought necessary, be that time more or less; for no where is there assigned a par with a woman and her two brothers. They were to be wedded. They said they were come to be married. My husband asked if they were single? The prisoner said, Yes! that he had been married, matrimonial contract. ticular tempus deliberandi for the marriage contract any Dalrymple v. Dalrymple. more than for any other contract. "It is said, that it must be serious; so, surely, must all Nature of the contracts. They must not be the sports of an evil hourmere matters of pleasantry and badinage, never intended by the parties to have any serious effect whatever. It is not to be presumed a priori, that a man is sporting with such dangerous playthings as marriage engagements. 66 Again, it is said, that the animus contrahentium must be regarded. Is that peculiar to the marriage contract? It is in the intention of the parties that the substance of every species of contract subsists, and what is beyond or adverse to their intent does not belong to the contract. But that intention is to be collected (primarily, at least) from the words in which it is expressed; and in some systems of law, as in our own, it is pretty exclusively so to be collected: you are not to travel out of the intention expressed by the words to substitute an intention totally different and possibly inconsistent with the words. "It lies upon the party who impeaches the intention ex- Onus probandi pressed by the words, to answer two demands which the on party who impeaches. law, I conceive, must be presumed to make upon him; first, he must assign and prove some other intention, and, secondly, he must also prove, that the intention so alleged by him was fully understood by the other party to the contract at the time it was entered into. For, surely, it cannot be represented as the law of any civilised country, that in such a transaction a man shall use serious words, expressive but that his wife was dead. They were married after the manner of the laws of England. The ceremony was read out of the Prayer-book; a part of it. They were sober enough when they came for the business they had in hand. Lines (a certificate) were made out; I wrote them. This (holding up a paper) is the same." Fawcett, for the prosecution, proposed to put in the certificate, as evidence of the marriage. Sir G. A. Lewin, for the prisoner, objected to it. Alderson, B., held that it could not be received. The fact of the parties having afterwards lived together was proved; but not that they had lived together as man and wife, though it was clear that they had cohabited. The evidence tended rather to shew, that they were living together in a state of concubinage; inasmuch as the prisoner still continued to address her by her maiden name. He Mr. James Little, of Annan, a writer to the signet, was then called to prove the validity of the marriage, according to the law of Scotland. deposed as follows:-"Marriage is a civil contract solemnly and deliberately entered into, and as if of serious intentions, and shall yet be afterwards at liberty to aver a private intention reserved in his own breast to avoid a contract which was differently understood by the party with whom he contracted." 2 Haggard's Con. Rep. 54—138. the parties had a serious intention of living together as man and wife. "The assent of both parties must be, therefore, very distinctly and clearly proved to have been given, in order to render the contract a valid one. "It is not necessary to the validity of such contract, that the parties should afterwards live together as man and wife; but the fact of their afterwards living together as man and wife will operate to explain ambiguous words, if there be such in the contract itself." Alderson, B., being of opinion, upon the whole evidence, that the assent of the second wife was not "distinctly and clearly proved," directed the jury to find the prisoner not guilty. Sunderland's Case. The YORK Sp. Assizes, 1837. The marriage of a Protest to a ant in Ireland to a Roman Priest; Catholic, by a Roman The prisoner was indicted for bigamy. charge was, that he had been married woman in Ireland, by a Roman Catholic and that he afterwards, and while she was yet Catholic living, was married to another woman at Pontefract. priest, is void by 19 G. 2. c. 33, (Irish). cir take notice of took the common Baines, for the prosecution, stated the cumstances under which the first marriage place, and that, according to the law of Ireland, law of Ireland without the |