MATRIMONIAL CAUSES.

Fellowes, falsely called Stuart, v. Stewart, otherwise Stuart.-This was a proceeding at the instance of Miss Jane Fellowes, of St. Clement's Danes, describing her self as falsely called Stuart, and wife of William Dundas Stuart, against Capt. Wm. Stewart, of Dover, Kent, otherwise William Dundas Stuart, for nullity of a marriage that had been had in effect between them, on the ground of an undue publication of bans.

The defendant was the son of a gentleman's servant in Edinburgh, but who afterwards became a retail dealer there in spirits and tobacco. He was born on the 15th of September, 1783, and baptized soon afterwards in Tron Kirk parish, Edinburgh, by the name of Wm. Stewart only. He was educated at Heriot's Hospital, and at a suitable age apprenticed out by that institution, but disliking his situation, left it for the army, and rose to his present rank of Captain. In the autumn of 1811, being resident in Eaton-street, Pimlico, he renewed an acquaintance he had formerly had with a Mrs. Corbet of the Strand, a countrywoman of his, by whom he was introduced to Miss Fellowes, who then resided in Nelson-square, Blackfriars-road. To this lady he represented himself as the son of a gentleman of large landed property in the county of Perth, and presumptive heir to the title and estates of the Right Hon. the Earl of Moray, in Scotland, and Baron Stuart, of Castle Stuart, in England. He also described himself by the names of "Wm. Dundas Stuart," and assumed the arms of

on the

the family of the Earl of Moray. By these means he succeeded in gaining Miss Fellowes's affections; but her mother positively refused her consent, from a dislike she had taken to Captain Stewart, which was so strong, that she declared she would not have him herself if he was to offer, even though he should succeed to the title and estates of which he boasted. The parties availed themselves, however, of a temporary absence of Miss Fellowes from home to effect their purpose, and a marriage accordingly took place between them 30th of October, 1811, at Saint Margaret's Westminster, in his assumed name of " William Dundas Stuart," she being then but 18 years of age, and he 28. The marriage took place in pursuance of a publication of bans, effected through the medium of Miss Elizabeth Myne Jones, a friend of Miss Fellowes's. He gave her his name for this purpose, in the course of a morning's walk with her and Miss Fellowes, as "William Douglas Dundas Stewart;" and she, on her return home, committed them to paper, and the publication accordingly took place the first Sunday in those names. He afterwards, however, for some reason, thought proper to call on the church officer, and representing this as an error, persuaded him to omit the name of " Douglas," and the bans were, in consequence published the two following times with his names as "William Dundas Stuart," instead. The mother did not think proper to institute any proceedings to call the validity of the marriage in question during her daughter's minority;

but upon the minority ceasing, the daughter herself did so.

It was contended on her part, that, though the stat. 26 Geo. II. commonly called the marriage act, did not expressly enact that all marriages solemnized by publication of bans, not in the true names of the parties, should be void, yet several cases had occurred in which the Court, in construing the two clauses, that the minister should not be obliged to publish the bans unless the "true" names of the parties were delivered to him, and that all marriages solemnized without publication of bans or licence from a proper authority should be void, had held that by the "true" names of the parties was meant the names by which they are commonly known to the world, in order that all persons interested might have notice of what was about to take place; and, therefore, that a publication in any other names, which should prevent parties from having that knowledge, was not a publication with in the meaning of the act; and the Court was, in consequence, bound to enforce the letter of the law in support of its spirit, it be ing described "an Act for the better preventing Clandestine Marriages;" and declare any marriage had in virtue of such a publication null and void and the circumstances of this case being, as it was contended, such as to bring it within the range of this doctrine, it was submitted, that the marriage in question must be declared void.

It was contended on the other hand, that setting aside Captain Stewart's false representations of himself and circumstances, his

real rank in life was fully equal to the expectations which Miss Fellowes was justified in forming; that she appeared herself very anxious for the alliance, and therefore the Court could not now, in a suit brought by her, consider these circumstances as forming a sufficient case of fraud to justify it in straining the letter of the law upon so slight a variation from the real name as that in which the bans had here been published.

Sir John Nicholl observed, that the ground of nullity in this case was, that the publication of bans and the marriage had both taken place in false names. The party bringing the suit was a minor, her father dead, and her mother withholding her consent. This latter fact, however, was not a ground of nullity in itself, if the publication had been in the true names; but it was material in a case of this description, as tending to shew a fraud against the spirit of the act. By the act, and the decisions which had since taken place under it, it was established that the publication must be in the true names of the parties, which were the names by which they are most usually known, and upon the ground that all parties whose rights are affected by what is to take place may have due notice. The parties themselves too have an interest in such a publication, as there might be concealed up to that time, circumstances which it was of importance that they should know, and which might have a considerable influence on their determination relative to the marriage itself. What were the true

names had in some cases been made a matter of difficulty. It had been suggested whether or not names acquired by general use and reputation could supersede the original ones, but this the Court was not called upon to decide in the present case. It might also happen that the publication might take place incorrectly, either through the inadvertency of those who give them in, or those who receive them for that purpose, but this case was also exempt from that consideration. The names were evidently assumed for the fraudulent purpose of making it appear that the party was related to a noble family in the manner he stated. He then recapitulated the leading circumstances of the case, and observed, that there was not the least reason to suppose any such relationship existed as pretended. Miss Fellowes certainly appeared rather captivated with the prospect of a coronet, and her friend Miss Jones assisted in obtaining the publication of bans. Whether the publication being in the right names on one of the Sundays, and in the wrong ones on the others, would be a ground of nullity the Court was not called upon to determine. It would certainly regard a suit on such a ground with great prejudice, but in this case none of the publications had been in the true names. What, then, could have been the motive for giving the name of "Douglas" before Miss Fellowes, and afterwards withdrawing it? Doubtless for the purpose of confirming by so many Scotch names, the impression that he was related to the noble family of Moray, as who that knew William

Stewart" the liquor-retailer's son of Edinburgh, would, on hearing the publication in the of "William Douglas Dundas Stewart" suppose it to be the same person? It was not necessary to shew actual fraud; it was enough if leading to a possibility of fraud; non constat that she might not have been prevented even by the introduction of the name of "Douglas" from making inquiries into the truth of those representations by which she had been so much deluded, and the discovery of the falsity of which might have altered her intentions as to the marriage, Upon the whole of the case, therefore, he was of opinion that this was not a publication within the meaning of the act, and that the assumption of name was for the fraudulent purpose of inveigling this young lady into a marriage effected wholly by fraud. The marriage was therefore pronounced null and void, with costs against the defendant.

Stallwood v. Tredger, falsely called Stallwood. This was a question as to the admissibility of a libel in a cause of nullity of marriage, by reason of the undue publication of bans, instituted by Mr. James Stallwood, of Hammersmith, Middlesex, against Maria his wife, describing her as falsely so called, and by her maiden name of Tredger only.

The suit was instituted by letters of request from the Commissary Court of Surrey, the party proceeded against residing at Lambeth, within its jurisdiction, and the libel now offered pleaded the clause in the Marriage.

Act, 26th Geo. the Second, which directs" that all bans of matrimony shall be published in the parish church, or in some public chapel (in which bans have been usually published), belonging to the parish or chapelry wherein the parties dwell; if they reside in different parishes or chapelries, the bans to be published in each; and if either of them reside in any extra parochial place (having no church or chapel in which bans have been usually published), then the bans to be published in the church or chapel of some adjoining parish or chapelry, in which case the minister shall certify the publication in the same manner as if either of the parties lived in such adjoining parish, and all other the rules of publication prescribed by the Rubrick, not altered, shall be duly observed, and the marriage solemnized in one of the churches or chapels where the bans have been published, and in no other place whatsoever." It then pleaded, that in May, June, and July, 1792, the parties in this case, intending to be married, and being respectively parishioners of St. Mary, Newington, Surrey, gave notice in writing to the minister of that parish, of their names, address, &c. in order to have the bans published. From the 17th of June, 1792, the church of St. Mary, Newington, was shut up, and under repair in order to be in a great part rebuilt and enlarged, and was presently afterwards un roofed, and in great part pulled down, so that from that time until the 9th of February 1794, no divine service was performed in it. The entry for the publication

of bans was, however, made in the bans book of St. Mary, Newington, which was taken to the adjoining church of Saint George, Southwark, and the bans there published on Sundays, the 29th of July, and the 5th and 12th of August, 1792, the curate making a memorandum in the margin to this effect: "published at Saint George's, Southwark, Newington church being under repair." The marriage was solemnized on the 13th of August following, on the site or ruins of Newington church; and the question was, whether it was void under the clause of the act cited, as having been solemnized in a different parish to that in which the bans were published.

It was contended, in opposition to the admissibility of the libel, that this was not a case in the contemplation of the legislature, or within the mischief intended to be remedied by the act, the object of which was, "for the better preventing clandestine marriages." There were no words in the act imperative upon this point, or any enactment declaring in express terms such a marriage null and void. It would have been a good marriage before the act, and was so still, if not rendered null by it. It might be a marriage in which the persons celebrating it might be liable to punishment; it might be contrary to the directions of the statute, but it did not follow that the act itself would be null and void. There must be some words in the statute specifically declaring such a marriage null and void; but there were none such applicable to the present case; and what rendered them indispens

able here was, that the legislature, when it intended that certain marriages should be altogether void, had used the very words which were not applied to the present case. The 3rd section of the act declared the publication of bans, where parents gave notice of their dissent, altogether void. The 8th annulled all marriages celebrated in any place but a church or public chapel, where bans of marriage have been usually published (except by special license): and the 11th declared the marriages of minors null and void. But the present case did not come within the range of either of these enactments. This was still more manifest, for by the 1st section marriages by bans were to be celebrated in the parish church of the parties; and by the 4th, those by license in the place where the parties resided. But all this was directory only. The 8th section was still necessary to render the marriage void, and that section did not apply to the present case. By former statutes 6 and 7 Wm. c. 6. many directions were given as to the mode of celebrating marriages, and penalties imposed upon the parties not complying with them, but the marriages themselves still continued valid. The present act seemed to proceed upon the same principle, and, therefore, the marriage in question, though perhaps in some degree irregular, yet not being declared null, was still to be considered as valid, as it would have been had the act never passed. Upon these grounds, it was submitted that the libel must be rejected

as insufficient, though proved to sustain the suit, and the party be dismissed.

It was contended in support of the admissibility of the libel, that the act, besides being directtory, was prohibitory: it directed where a marriage should be had, and prohibited where it should not, and this prohibition would be without effect unless the marriage were null and void. The sections were in different forms, and it was not necessary that all of them should contain the words "null and void," as they would, in construction, follow to all the clauses after the first without being so specified. There were various causes of nullity, which, though not specified, would equally render a marriage void, such as the omission of any material parts of the marriage ceremony, &c. The first part of the 1st clause was not so strong as the latter, which expressly directed that the marriage should be solemnized in the church or chapel where the bans had been published, and in no other place whatever; whereas the 10th section declared that as to bans published, it was not necessary to prove a residence, so that the parties in this case were perfectly at liberty to have the bans published in another church, whilst their own was under repair, but not afterwards to marry in any other than that where the publication had passed. Upon these grounds it appeared that the marriage was contrary to the directions, and within the prohibitions of the act, and, therefore, under the proper and legal interpretation of that act, null and void.