of December he was delirious, and so continued up to his death; and that, while in that state, he was quite incapable of entering into any contract or granting any valid consent; that he had lived many years in a state of concubinage with the Respondent, Paquet, without marrying her or acknowledging her as his wife; that while in a state of delirium, and incapable of consent, she, profiting by his condition, on the 16th of December, 1851, procured a pretended marriage to be solemnized between her and Scott, and, on the same day, procured a pretended marriage contract to be executed; that by the register of the marriage it was endeavoured to recognise as legitimate the children of the illicit connection and the provisions of the contract; that Scott was at the time of the marriage in a state of delirium, and in extremis, and afflicted with the malady whereof he died; and the pretended marriage was clandestine, celebrated without the knowledge or consent of Scott's relations, and was neither publicly solemnized, nor accompanied by the necessary formalities, nor followed by consent on his part, and that the Respondent, Paquet, and the other Respondents, had assumed to be the heirs of Scott, and had taken his estate into their possession, and the declaration prayed that the pretended marriage and contract of marriage might be declared null and void. The Respondents filed their pleas, consisting of two sets of exceptions peremptoires and a defense en fait. The first set of exceptions referred to the capacity of the Appellant to maintain her action, and was, in substance, to the following effect:—That the Appellant being only a collateral relation, could not maintain such an action; that ever since the death of Scott the Respondents had assumed the character of his representatives, and that their right to that character had been publicly recognised, and had been acquiesced in by the Appellant; that the Appellant had recognised their right to such character by transferring to Barbara and Jane Scott her rights as one of the legatees of Scott's father, in a sum of money due on a judgment obtained by Scott's father, on the 24th of April, 1824, against Scott and another, and that the Appellant could not maintain her action without joining her sisters as co-Plaintiffs. The second set of exceptions referred to the merits, and was to the following effect :-That for many years Scott VOL. I. 3 3 A J. C. 1867 SCOTT V. PAQUET. J. C. 1867 SCOTT v. PAQUET. and the Respondent, Paquet, lived together as husband and wife, under promises frequently reiterated by Scott that he would marry her; that the Appellant and her sisters were aware of this, and recognised the position of the Respondent, Paquet, and her children; that about twelve years previously Scott had intended to fulfil his promise of marriage, and had assembled his friends and the Priest for that purpose, but was prevented from so doing by understanding that the Priest required him to make oath that he would allow his children to be brought up as Roman Catholics; that it was with the view of carrying this intention into effect that he contracted the marriage complained of; that such marriage was contracted legitimately and lawfully in the presence of a Roman Catholic Priest duly authorized to celebrate such marriage; and that Scott was at the time sound in mind. The defense en fait put in issue all the statements contained in the Appellant's declaration. Witnesses were examined on behalf of the Appellant and Respondents. The Appellant objected to the reception of the evidence of the Respondents' witnesses, so far as it went to prove that a marriage had been celebrated, on the ground that verbal evidence of a marriage was inadmissible by law, and such objections were reserved, but the evidence was afterwards admitted. The evidence as to the capacity of Scott was conflicting. On the part of the Appellant, Scott's medical attendants, Dr. Jamieson and Dr. Fisher, declared as their opinion, that in the case of a person suffering from delirium tremens there could be no lucid interval during which he could have the use of his faculties, or be fit to contract any kind of business; that Scott was in a state of delirium tremens just before and immediately after the alleged ceremony, and that it was a scientific fact that this disease never leaves the patient until it leaves him finally; that there may be times at which it is more intense than at others, but that the patient is never perfectly sane. The evidence for the Respondents consisted of the depositions of the Notary, Priest, and others who were present at the marriage ceremony, and they deposed to the perfect sanity of Scott at that time. It was proved that Dr. Jamieson had said, when attending the deceased, that he considered that the disease would give way to the treatment he and Dr. Fisher recommended. No medical evidence was produced by the Respondents in answer to evidence given by Drs. Jamieson and Fisher. The cause came on to be heard, and by the judgment of the Superior Court, delivered on the 30th of May, 1856, the action was dismissed with costs, on the ground that the Appellant had failed to establish the material allegations of her declaration. The Appellant appealed from this judgment to the Court of Queen's Bench for Lower Canada. The appeal was heard before the Justices Aylwin, Duval, Caron, and Meredith, and on the 5th of October, 1857, the Court delivered judgment, dismissing the appeal with costs. Mr. Justice Duval and Mr. Justice Caron considered that all the questions raised by the pleadings ought to be decided in favour of the Respondents, and Mr. Justice Meredith agreed with them so far as related to the questions put in issue by the declaration. Mr. Justice Aylwin dissented from the opinion of the rest of the Court, and considered that all the questions raised on the pleadings ought to have been decided in favour of the Appellant (1). The present appeal was brought from this judgment of affirmance. It was twice argued (2). Mr. Garth, Q.C., and Mr. A. T. Watson, for the Appellant :Three questions arise:-First, we insist that the marriage has never been celebrated with the forms and ceremonies required by the ancient law of France, in force in Lower Canada, so as to con (1) See case reported, Low. Can. Jur. vol. iv. p. 149. (2) This appeal was twice argued, first, on the 24th, 25th, and 26th of June, 1861, before Lord Kingsdown, Dr. Lushington, Sir Frederick Pollock (The Lord Chief Baron), and Sir John Romilly (The Master of the Rolls), but their Lordships not being satisfied, directed the case to be re-argued. It was stated at the Bar that the reargument was delayed by the poverty of the parties not enabling them to bring it on for hearing. On the case now coming on, applica tion was made by the Counsel for the J. C. 1867 b SCOTT v. PAQUET. J. C. 1867 SCOTT t. PAQUET. 66 66 stitute a valid marriage. [The LORD CHIEF BARON :-If there was a marriage de facto, it lies on you to shew it was invalid in law.] To be valid it ought to have been performed by the Parish Priest: Dagusseau, Tom. v. pp. 150, 151, 152, 153; Pothier, verbo Mariage," Partie I. Ch. i. No. 3; Pothier, du Contrat de Mariage, Partie IV. cap. 1, sec. 3, Art. 1, par. 5, No. 350 [Ed. 1781]; Danty, p. 102; Durand de Maillanne, Dict. Can. voce “ Clandestin,” Tom. i. p. 523 [Ed. Lyons, 1770]; De Hericourt, Loix, Eccles. Ch. v. Art. 1, No. 27, p. 474. [The Respondents' Counsel objected to this point being now raised, as in the declaration the Appellant had admitted the marriage, and only sought to avoid it as being celebrated when Scott was in extremis and unconscious, and submitted that it was not for the Respondents to give formal proof of the factum of such marriage; but that if it were necessary the proofs were sufficient according to the Provincial Statute, 35 Geo. 3, c. 4, sec. 4, which only requires the presence of two witnesses.] This point was not further argued. Second, the evidence of the medical attendants of Scott shews that at the time the marriage took place between Scott and the Respondent, Paquet, which was only two days before his death, Scott was à l'extrémité de la vie, so as to render such marriage null and void by the Ordonnance of Louis XIII. of 1639, Art. 6, and the Edict of the year 1697; depriving of civil effect marriages in extremis: Pothier, Tom. v. p. 238, Partie 5, Ch. ii. p. 429; Ib. 239; Merlin's Rep. de Jur. verbo " Mariage," Tom. xix. sect. 9, Art. 3; Ib. Tom. viii. sec. 19, par. I. No. 3, p. 47; [Quarto Ed.]. Third, the evidence establishes the fact, that at the time of the pretended marriage Scott was delirious and unconscious from an attack of delirium tremens, and then incapable of entering into any valid contract. In Dimes v. Dimes (1); The Attorney-General v. Parnther (2); Dew v. Clark (3), the principles relating to lucid intervals are fully explained, and those authorities shew that the party claiming must establish that fact. Sir R. Palmer, Q.C., and Mr. Westlake, appeared for the Respondents, but were not called upon. (1) 10 Moore's P. C. Cases. 422. (2) 3 Bro. C. C. 440. (3) 1 Add. Ecc. Rep. 279. July 10. Their Lordships' judgment having been reserved, was now pronounced as follows by THE LORD CHIEF BARON: This is an appeal from a judgment by the Court of Queen's Bench for Lower Canada affirming a decision of the Superior Court of that Province in an action brought by the Appellant against the Respondents, and in which the question to be determined was, whether a marriage between William Henry Scott, deceased, and the Respondent, Marie Marguerite Maurice Paquet, on the 16th of December, 1851, was valid or void, Several questions were raised (but disposed of during the argument) upon the alleged non-compliance with the formalities essential to the validity of a marriage by the law of France, which prevails in Lower Canada. The objections to the marriage upon these grounds (which appeared when duly considered to be unsupported by the authorities) were abandoned by the Counsel for the Appellant. Two questions alone remain: The first, whether this marriage was contracted while Mr. Scott was "à l'extrémité de la vie," within the meaning of the 6th Article of the Ordonnance of 1639; the second is, whether, at the time when the marriage was so contracted, Mr. Scott was of sound mind and in possession of his faculties. Both these questions have been decided in favour of the Respondents, unanimously by the three Judges of the Superior Court, and by three Judges out of four of the Court of Queen's Bench in Lower Canada. And we think that this Court ought not, unless there be manifest error in the judgments under appeal, to overrule these decisions so pronounced in the Country in which the law of France, by which the first question must be determined, prevails, and must be known and continually acted upon by the Courts of Law; and in which also the witnesses on both sides reside, and may have been more or less known to, or seen, when under examination, by the Judges, or some of them, who likewise are familiar with the usages and customs of the place in which all the circumstances which formed the subject of the evidence occurred. The language of the Ordonnance is this :-" Voulons que la même peine (de la privation des successions) ait lieu contre les enfans qui J. C. 1867 SCOTT v. PAQUET. |