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marriage, will not prevent the offence from being complete. (r) on the second And it was decided to be no ground of defence, that upon the marriage. second marriage (which was by banns) the parties passed by false Christian names when the banns were published, and when the marriage took place; and it was further holden that the prisoner, having written down the names for the publication of the banns, was precluded thereby from saying that the woman was not known by the name he delivered in, and that she was not rightly described by that name in the indictment. The indictment was against the prisoner for marrying Anna Timson whilst he had a wife living the second marriage was by banns; and, it appeared, that the prisoner wrote the note for the publication of the banns, in which the woman was called Anna, and that she was married by that name, but that her real name was Susannah. Upon a case reserved two questions were made: one, whether this marriage was not void, because there was no publication of banns by the woman's right name, and that, if the second marriage were void, it created no offence: and the other question was, whether the charge of the prisoner's marrying Anna was proved. But the judges held, unanimously, that the second marriage was sufficient to constitute the offence; and that, after having called the woman 'Anna' in the note he gave in for the publication of banns, it did not lie in the prisoner's mouth to say, that she was not known as well by the name of Anna as by that of Susannah, or that she was not rightly called by the name of Anna in the indictment. (s)

So where the prisoner contracted the second marriage in the maiden name of his mother, and the woman he married had also made use of her mother's maiden name, it was unanimously resolved by all the judges that the prisoner was rightly convicted. (t) So where the second wife had never gone or been known by the name of Thick, but had assumed it when the banns were published, that her neighbours might not know she was the person intended, it was held that the parties could not be allowed to evade the punishment for their offence, by contracting a concertedly invalid marriage. (u) But where it was proved, by a person present at the prisoner's second marriage, that the woman was married to him by the name of Hannah Wilkinson (the name laid in the indictment), but there was no other proof that the woman was in fact Hannah Wilkinson; it was held that the proof was insufficient, and that to make it sufficient there should have been proof that the prisoner was married to a certain woman by the name of, and who called herself H. Wilkinson, whereas, in fact, there was no proof that such was her name, or that she had ever before gone by that name; and if the banns had been published in a name which was not her own, and which she had never gone by, the marriage would be invalid. (v)

The prisoner was married a second time before the registrar describing himself as Benjamin Rea, his true name being Edward

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Marriage before a regis

trar in a wrong name.

Marriage by license in a wrong name.

Evidence of a marriage by special license.

Rea. There was no evidence to show the wife knew of this, and the man was held to be rightly convicted of bigamy, as the effect of the statute 6 & 7 Will. 4, c. 85, ss. 4, 42, is to render invalid a marriage where both the parties, and not one only, knowingly intermarry without due notice. (w)

A marriage celebrated under a license, in which one of the parties is described by a name wholly different from his own, is not therefore void. George Rudman was taken into custody as the reputed father of a child, of which a woman was pregnant, and married her by license. He gave his name as George Neate at the times of the apprehension and marriage, and was named so in the license, but had never gone by that name before; and the Court of Queen's Bench held this marriage valid. (x)

Where a marriage was solemnized by license, in which the woman's name was Margaret Bevan; her baptismal name and that by which she was commonly called being Margaret Lea Bevan': the license was obtained in the altered name by the man, who knowingly, and by direction of the woman, suppressed the name of Lea, and gave false places of residence, in order that the surrogate might not know who the woman was, and that the intended marriage might be kept secret from her friends; it was held that the question was whether the woman was married without a license from a person or persons having authority to grant the same.' There was no doubt the person who granted the license had authority to grant it, and it came therefore to the question whether this was a license for the woman. It was clear that an altered name might represent a person; therefore the name 'Margaret Bevan' might represent her, and as the license was obtained for her and by her direction from a person who had authority to grant it, the marriage was not void. (y)

On the trial of an ejectment in 1842, a marriage was said to have taken place in August in 1784, at a private house under a special license from the Archbishop of Canterbury. There was some evidence of cohabitation and reception: but the plaintiff's counsel offered in evidence an affidavit made for the purpose of obtaining a special license to be married at a private house, and a fiat signed by the Archbishop, directing a license to be made out, as prayed, for a marriage between the parties; both which documents were produced from the Office of Faculties, the proper ecclesiastical office. No search had been made for the original license; and there was proof that such licenses were not kept in any regular custody, but were generally handed over to the officiating clergyman and not taken back from him. A copy of the register of the parish of St. Pancras, which stated the marriage to have been at a private house, by special license, and professed to be signed by the parties, was also offered in evidence. Objection was taken to the fiat as being secondary evidence of the contents of the license, for which no search had been made; but

(1) R. v. Rea, L. R. 1 C. C. R., 41 L. J. M. C. 92. The Court did not say there would have been no offence if both parties had known of the false statement. See Holmes v. Simmons, L. R. 1 P. & M. 523.

(x) Lane v. Goodwin, 4 Q. B. 361. But

if a license were obtained for one person with the intention that it should be used for another, such a license might not be valid. Patteson, J. Ibid.

(y) Bevan v. M'Mahon, 30 Law J., D. & M. 61.

the evidence was admitted; and the Court of Queen's Bench held that it was properly received, as the fiat was an act done in the course of official duty, showing that two persons bearing the names of the lessor of the plaintiff's parents were at that time engaged in taking measures for contracting a marriage; and that it might properly be taken into consideration by the jury as confirming the evidence of their union, which arose from cohabitation and reception. The affidavit and register were proofs of the same general fact. (2)

A marriage solemnized by license since the 4 Geo. 4, c. 76, without consent of parents, where one of the parties is a minor, is valid for the section, which requires such consent, is only directory. The pauper, being under the age of twenty-one years, was married in 1826, by license, without the consent of his father, who was then living; it was objected that this marriage was void under the 4 Geo. 4, c. 76, for want of the father's consent; but it was held that the marriage was valid. The language of sec. 16 (b) is merely to require consent; it does not proceed to make the marriage void, if solemnized without consent. Sec. 22 declares that certain marriages shall be null and void, and a marriage by license without consent is not specified; and if there were any doubt, it is removed by sec. 23, which in such a case enacts, not that the marriage shall be void, but that all the property accruing from the marriage shall be forfeited. (c)

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in holy orders must be pre

sent by the

common law.

Unless a clergyman in holy orders was present at the marriage A clergyman ceremony, the marriage was null and void at common law before the marriage Act. Where, therefore, A., a member of the established Church in Ireland, went, in 1829, accompanied by B., a Presbyterian, to the house of C., a regularly placed minister of the Presbyterians of the parish where C. resided, and there entered into a present contract of marriage with the said B., the minister performing a religious ceremony between them, according to the rites of the Presbyterian church, and A. and B. lived together as man and wife for some time afterwards; but A., afterwards during B.'s life, married another person in a parish church in England; it was held, on an indictment for bigamy, that the first contract thus entered into was not sufficient to support the indictment. (d)

(2) Doe dem. Earl of Egremont, v. Grazebrook, 4 Q. B. 406.

In the argu ment it is said that the performance of a ceremony was proved;' but the ceremony was shown to have been performed in a private house.' 'The same parties went through the ceremony, which, at any rate, was professedly a marriage.' See Doe dem. France v. Andrews, 15 Q. B. 756, as to the entry in the register.

(a) If the prisoner prove that his first marriage took place while he was a minor, and while the 26 Geo. 2, c. 33, was in force, it must be shown on the part of the prosecution, that such marriage, if by license, was with the proper consent. Rex v. Butler, Mich. T. 1803. MS. Bayley, J., and R. & R. 61; Rex v. Morton, cor. Wilson, J,, Newcastle, 1789. MS. Bayley, J., and R. & R. 19, note

(a). James's case, R. & R. 17. Though
illegitimate children are regarded by the
law as not having any father, yet they
were held to be within the marriage Act
of 26 Geo. 2; Rex v. Hodnett, 1 T. R.
96; Rex v. Edmonton, Cald. 435; Hor-
ner v. Liddiard, Rep. by Dr. Croke;
Priestley v. Hughes, 11 East, 1.

(b) See the sec. ante, p. 276.

(c) Rex v. Birmingham, 8 B. & C. 29, S. C. 2 M. & R. 230. Reg. v. Clark, 2 Cox, C. C. 183.

(d) Reg. v. Millis, 10 Cl. & F. 534. March 1843. In the Queen's Bench in Ireland, Perrin and Crampton, JJ., held the first marriage good but Pennefather, C. J., and Burton, J., held it to be void. In order that error might be brought in the House of Lords, Perrin, J., withdrew his opinion, and judgment was given for the prisoner. In the House of Lords,

Unless one

But the preceding case must not be taken to decide that marcannot be pro- riages of British subjects in the colonies, or on board ship or

cured.

A clergyman cannot marry himself.

In support of a marriage under the

necessary to produce or

prove the notice of marriage, or to prove that it took place in the building specified in the notice.

elsewhere, where a clergyman cannot be obtained, are invalid. Indeed in a case in India where no clergyman could be obtained, it was held that the preceding decision did not apply. (e)

The law does not admit of any difference, as to the manner in which a marriage is to be celebrated, between the marriage of a clergyman and a layman, and consequently if the bridegroom be a clergyman in holy orders, and perform the ceremony himself, no other clergyman being present, the marriage is invalid. (ƒ)

Where, on an indictment for bigamy, it appeared that the first marriage professed to be under the provisions of the 6 & 7 Will. 4, 6 & 7 Will. 4, c. 85, and the superintendent registrar produced the register c. 85, it is not returned to him by the registrar, who proved that he was present at the marriage, that it was registered, that the parties signed their names, and he witnessed it; and the superintendent registrar produced the register of the place where the marriage was celebrated, and the certificate he issued was produced and proved by him. A witness stated that he was present at the marriage, and that notice of it was duly given to the superintendent registrar, but the latter did not produce it, and said, if he had received it, he had left it at home; it was contended, on behalf of the prisoner, that it was incumbent on the prosecution to show that the first marriage was celebrated in the registered building specified in the notice and certificate, to prove that due notice had been given to the superintendent registrar, and that the certificate of the notice had been duly issued. But, on a case reserved, all the judges present held the evidence sufficient. (g)

Proof of a

marriage under the 6 & 7

Upon an indictment for bigamy, which alleged that the prisoner, in July 1848, married Eliza Goodman in a Wesleyan chapel Will. 4, c. 85. duly licensed for marriages, and afterwards and in her lifetime married E. Outley, a witness proved that he was present at the first marriage at the Wesleyan chapel at Dunstable, in the presence of the registrar, and signed the register as a witness, and that the parties lived together as man and wife for two or three years. A witness proved that a certificate of this marriage was examined by him with the register book, kept at the office of the superintendent registrar of the district of Luton, within which Dunstable was, and that it was correct, and that it was signed

Lords Brougham, Denman, and Camp-
bell held the first marriage good; but
the Lord Chancellor (Lyndhurst), Lord
Cottenham, and Lord Abinger held it
void; whereupon, according to the an-
cient rule in the law, semper præsumitur
pro negante, judgment was given for the
defendant; and in Beamish v. Beamish,
infra, it was held that this judgment was
as much binding as if it had been pro-
nounced nemine dissentiente. On the
authority of this case, it was held that a
marriage solemnized at the consulate
office at Beyrout in Syria, according to
the rites of the Church of England, be-
tween two British subjects who were
members of that church, by an American
missionary, who was not a priest in holy
orders, was void. Catherwood v. Caslon,

13 M. & W. 261. 1844. See the 12 & 13

Vict. c. 68, post, p. 311. See R. v.
Mainwaring, 26 L. J. M. C. 10; Dear &
B. 132.

(e) Maclean v. Cristall, Per. Oriental Cas. 75. And the Lords, in Beamish v. Beamish, infra, expressly declared that this question was not decided by the preceding case.

(f) Beamish v. Beamish, 9 H. L. C. 274.

(g) Reg. v. Hawes, 1 Den. C. C. 270. As the production of the original register of marriages cannot be enforced, a witness, who has seen the register, may prove the handwriting of a party to a marriage therein registered, although such register be not produced. Sayer v. Glossop, 2 Exc. R. 409.

by the superintendent registrar. This certificate contained a copy of the register, which the registrar certified to be correct. The witness also proved that he examined another certificate with the register book at the office of the superintendent registrar, and that it was correctly extracted, and was signed by the superintendent registrar in his presence. () The witness also proved that another document was signed in his presence by the superintendent registrar, and that he examined it with the register at his office, and found it was correctly extracted. (i) The reception of these documents was objected to, on the ground that certificates were not admissible to prove a marriage in a Wesleyan chapel, or that it was a place in which a marriage could be legally solemnized, or that, if admissible, they must be authenticated by the official seal of the registrar, and not under hand only. But the documents were admitted, and the prisoner convicted; and it was held that the conviction was right, upon the ground that, independently of the two last-mentioned documents, there was prima facie evidence that the chapel was duly registered, and was therefore a place in which marriages might be legally solemnized. The presence of the registrar at the marriage, the fact of the ceremony taking place, and the entry in the registrar's book, aided, as they were, by the presumption omnia ritè esse acta, afforded prima facie evidence that the chapel was a duly registered place, in which marriages might be legally celebrated. (j) So where on an indictment for bigamy the prisoner was shown to have been secondly married at a Wesleyan chapel not registered under the 15 & 16 Vict. c. 36, in June 1857, and

(h) This certificate was, 'I, the undersigned, T. E. Austin, Superintendent Registrar of the district of Luton, &c., do hereby certify that the Wesleyan chapel, situate at Dunstable, in the county of Bedford, was duly registered for the solemnization of marriages, pursuant to the Act 6 & 7 Will. 4, c. 85, on the twenty-eighth day of November, 1845. Given under my hand, &c., Thos. Erskine Austin.'

(i) This document was, 'Henry Manwaring and Eliza Goodman were married after notice, read at the Board of Guardians of the Luton Union, without license. Thos. Erskine Austin, Superin⚫tendent Registrar.'

(j) Reg. v. Manwaring, D. & B. C. C. 132; Pollock, C. B. and Willes, J., thought that the certificate that the chapel had been duly registered was admissible and evidence of the fact. The 6 & 7 Will. 4, cc. 85, 86; 1 Vict. c. 22; 3 & 4 Vict. c. 92; 8 & 9 Vict. c. 113; 9 & 10 Vict. c. 119; and 14 & 15 Vict. c. 99, were referred to on the trial. Willes, J., said, 'It is a mistake to suppose that the provisions of the 14 & 15 Vict. c. 99, s. 14, are anything more than cumulative, or that they give a rule and the only rule of evidence.' See R. v. Craddock, 3 F. & F. 837. Where in an action for goods sold there was a plea of coverture, and the defendant stated that she was married to J. Lambert in 1844,

at a Roman Catholic chapel in George Street, Portman Square; that she and Lambert were both Roman Catholics, and were married by a priest in the way in which Roman Catholic marriages are ordinarily celebrated, and that they lived together for some years, and she produced a certificate of the marriage from the priest who performed the ceremony, and a certificate showing that the civil contract of marriage had been performed before the French Consul; but there was no proof that the person who performed the ceremony was a priest, or that the chapel was a place licensed for marriages, or that the registrar was present at the time; the Court of Common Pleas held that it might be presumed that the chapel was licensed and the registrar present, as well because the 6 & 7 Will. 4, c. 85, s. 39, declares, any person who wilfully solemnizes a marriage in any other place than a registered building or in the absence of the registrar, guilty of felony, as because the ordinary rule omnia præsumuntur ritè esse acta ought to prevail in such a case. Sichel v. Lambert, 15 C. B. (N. S.) 781. Where a marriage was solemnized in a building in a parish situate a few yards from the parish church, at a time when the parish church was disused in consequence of its undergoing repairs, and after divine ser vice had been several times performed in such building, in the absence of any

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