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3. Evidence of settlement by marriage.


the French

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Secondly, Of “ By the ancient general law of Europe, a contract per verba de prasenii,
evidence of seta or a promise per verba de futuro cum copulâ, constitutes a valid marriage.
ilement, &c.

The intervention of a priest was first required by the council of Trent.
Lord Stowell in Dalrymple v. Dalrymple. This general rule prevails in
Scotland, but there the intervention of a priest is unnecessary.

It is an undoubted proposition, that a marriage celebrated in Scotland is
Marriage in Scot- such a marriage as would entitle the woman to dower in England. Ilder-

ton v. Ilderton, 2 Hen. Blac. 145. By Romish

Marriages by Romish priests, whose orders are acknowledged by the church priests.

of England, have been deemed to have the effect of legal marriages in some
instances, (at least before the 26 Geo. II.; per Lord Ellenborough, 10

East, 288).
Marriage abroad Rex v. Brampton, 10 East, 282. Whilst the British army was at St.
by a French Ca.

Domingo, the pauper and a man belonging to that army, went to a chapel, tholic priest in

in order to be married; and there a service was read in the French language tongue, accord- by a person dressed like a priest, and interpreted into the English language, ing to the Eng

by a person who officiated as clerk. The pauper did not understand French,
but by the interpreter she understood it was the marriage service of the
established church of England read in French. She did not know that the
person officiating was a priest. She received a certificate of marriage, which
she lost. There was no chaplain with the British forces at that time in St.
Domingo. No evidence was given of the laws or usage of the island respect-
ing the marriage ritual there. She and the man lived together as man and
wife till his death, and she was removed to his settlement. Order quashed.
-Lord Ellenborough, C. J. First, considering it as a marriage celebrated
in a place where the law of England prevailed; for I may suppose, in the
absence of any evidence to the contrary, that the law of England, ecclesias-
tical and civil, was recognised by subjects of England in a place occupied
by the King's troops, who would impliedly carry that law with them ; then,
Was it a good marriage before the marriage act ? Certainly, before that act,
a contract of marriage per verba de præsenti would have bound the parties;
this was such a marriage, and performed by one who publicly assumed the
office of a priest, and appeared habited as such ; of what persuasion does
not appear: but even if it were performed by a Roman catholic priest, the
case would be the same; for such a person would be recognised by our
church as a priest capable of officiating as such, upon his mere renunciation
of the errors of the church of Rome. But Rex v. Fielding shews that a
marriage by a Roman catholic priest (before the marriage act) was effectual
for that purpose, which was considered as a contract per verba de presenti.
In this case the ceremony was performed in a public chapel, instead of in
private lodgings, as in Fielding's case. Considering, therefore, the case to
be that the King's forces carried with them the law of England to St. Do
mingo, by which they and other subjects who accompanied them in the
absence of proof that any other law was in force there may be considered as
continuing to be governed, this would be a good marriage by that law. But
supposing this law of England not to have been carried to St. Domingo by
the King's forces, nor obligatory upon them in this particular, let us consider
whether the facts stated, would not be evidence of a good marriage, according
to the law of that country whatever it might be. And, indeed, after the
ceremony of marriage, as it was understood and intended by the parties ar
the time to be, performed openly in a chapel, by a person appearing there as
a priest authorised to perform the ceremony of marriage, and this followed

lish rite,

in the chapel belonging to any British British army serving abroad,” it is defactory abroad, or in the house of any clared and enacted, “ That all such British subject residing at such factory, marriages, as aforesaid, shall be deemed as well as from any possibility of doubt and held to be as valid in law as if the concerning the validity of marriages, so- same had been solemnized within his lemnized within the British lines, by any Majesty's dominions, with a due obchaplain or officer, officiating under the servance of all form required by law." orders of the commanding officer of a

3. Evidence of

erected since

by a cohabitation between the two parties for eleven years afterwards ; every Secondly, Of presumption is to be raised in favour of its validity. I should have con- eridence of set. sidered myself as safe, in resting my opinion in favour of this marriage upon

tlement, &c. the law of England, independent of the provisions of the marriage act: But without the aid of that, I think every presumption must be made in favour settlement by of its validity, according to the law of the country where it was so celebrated: marriage. having been performed there in a proper place, and by a person officiating as one competent to perform that function. The other judges agreed, and the order of sessions was quashed.

The above elaborate judgment has settled this part of the law upon a clear and indubitable basis.

Westbrooke v. Stratville, 1 Stra. 79. A prior marriage subsisting at the A first subsisting time of a second marriage, renders the second void, ab initio. Ånd the marriage. second (i. e. the supposed) wife (when plaintiff in an action against the husband) may give the felony in evidence, in support of her action. See Rex v. Twyning, 2 B. f. A. 386 (a).

King's Norton v. Northfield, Doug. 659, Abigail, widow of Joseph Jones, Marriage solem. was removed from King's Norton to North field. Order confirmed Case:

nized in chapels The pauper, in 1775, married J. Jones, at Buerlyhill chapel, in Kingsuinford, 26 Geo. 2, were which was erected in 1765, and then duly consecrated, and in which divine held to be void. service had been regularly celebrated ever since; and wherein banns of matrimony had been often published, and marriages celebrated previous to the marriage in question. The chapel was erected since the marriage act, and not erected on the foundation of one that was ancient. No act of parliament was obtained for erecting it, or for celebrating marriages there. The question was, Whether the marriage was void by the provisions of the said act? It was contended, that the words usually published, in the act, ought, to be considered to mean, usually at the time when the marriage in question took place. If so, there was enough stated in the case for the Court to consider this as a chapel, in which banns had been usually published.--- Lord Mansfield, C. J., was for some time averse to determine a question of such serious consequence in a collateral way, on a settlement case. But, upon more consideration, he said, I think we ought now to decide it. If there has been an abuse, we ought to stop it as early as possible. A delay might lead to a supposition that we doubt, when in truth we do not. The act clearly meant chapels existing at the time. I am of opinion that this marriage was void by the provisions of the statute. (Soon after this determination was But legalized by known, the 21 Geo. III. c. 53, was passed, for making all marriages which 21 Geo. 3, c. 53. had been solemnized in any parish church, or public chapel, erected since the 26 Geo. II. and consecrated, valid in law, and to exempt the clergyman who had solemnized such marriages from the penalties of that statute.]

By 44 Geo. III. c. 77, it is enacted, that all marriages solemnized, or to And again, by be solemnized, before 25th March, 1805, in churches, or chapels, erected since 41 Geo. 3, c. 77. the making of 26 Geo. II. c. 33, and consecrated, shall be good and valid in law. And the ministers solemnizing them indemnified from the penalties of the former statute.

By 48 Geo. III. c. 127. The like provisions are enacted with respect to all marriages so solemnized, or to be solemnized, before the 23rd of August 1808. The registers are to be preserved, and to be evidence, as in 26 Geo. II.

By 59 Geo. III. c. 134, s. 6. Marriages may be solemnized in the chapels Solemnizing of consolidated chapelries (viz. parts of contiguous parishes and places united marriages in new into separate districts for ecclesiastical purposes), which were built by order of the Commissioners for Building New Churches; and by s. 16, the same commissioners may direct whether marriages shall be had, or not, in chapels erected by them in parishes divided into ecclesiastical districts, or district parishes. By 4 Geo. IV. c. 76, s. 3, “The bishop of the diocese, with the Bishop, with con

c. 33.

(a) A parish may be precluded even they have recognised the man and woman from this evidence, where, by a certificate, as husband and wife, (ante, 683.)

3. Evidence of settlement by

may authorise

banns in any

Notice to be

tion of banns,

for one present

Nor necessary

copy of the register.

Secondly, of consent of the patron and the incumbent of the church of the parish in which evidence of set- any public chapel, having a chapelry thereunto annexed, may be situated, tlement, dic.

or of any chapel situated in an extra-parochial place, signified to him under their hands and seals respectively, may authorise, by writing, under his hand

and seal, the publication of banns and the solemnization of marriages in such marriage. chapel, for persons residing within such chapelry, or extra-parochial place sept of patron respectively, and such consent, together with such written authority, shall be and incumbent,

registered in the registry of the diocese.” publication of Sect. 5. Provided “ That in every chapel, in respect of which such autho

rity shall be given as aforesaid, there shall be placed, in some conspicuous public chapel.

part of the interior of such chapel, a notice in the words following : . Banns placed in such may be published and marriages solemnized in this chapel.?" chapel

Št. Devereux v. Much Dewchurch, 1 Bla. Rep. 367. The question Not necessary to before the sessions was, Whether the marriage of John and Susannah Mereprove publica

dith was sufficiently proved? One witness made oath, that he and another but it is enough were present, in 1758, when a marriage was solemnized in the church of

St. Devereur, between John and Susannah Meredith, by the minister of the to prove the fact parish, by banns. The entry of the marriage in the parish register, was, of marriage. * 1758. John Meredith and Susannah Jenkins were married by banns;" but

neither the minister, parties, nor witnesses signed the entry; they were therefore, of opinion, that the marriage was not legally proved. It was urged, in support of their opinion, that this appeared to be a void marriage. For although the omission of banns was originally only an offence against the ecclesiastical law, and even after the 7 & 8 W. III. c. 35, s. 2, the minister and clerk, and man married without licence or banns, were only subject to a penalty; yet, since the 26 Geo. II. c. 33, an entry of this, properly signed, is become so essential a circumstance, that without it the marriage is Foid.

But the Court were of a different opinion. And Lord Mansfield, C. J., to produce the

said, It was not incumbent on the persons married to prove that the banns were published, nor doth the entry directed to be made, affect the validity of the marriage. In a suit, perhaps, in the ecclesiastical court for jactitation of marriage, it may be necessary to prove, that all the solemnities of the marriage act have been punctually and regularly complied with: but, God forbid that in other cases (the legitimacy of children and the like), the usual presumptive proofs of marriage should be taken away by this statute! It was canvassed in parliament, at the time when the act was made, and universally agreed, by all whose opinions were worth having, that it would not become necessary to prove the publication of banns. But at the same time he de clared, that it was a matter of great public concern, for the preservation of pedigrees (which were now become very difficult to prove): and the entry ought to have been made according to the directions of the act. He went so far as to declare, that an information ought to be granted by the Court, against the minister for omitting it, if it should appear clearly that it was owing to his neglect; and that such information should be prosecuted by the attorney-general at the King's expence ; which he did not doubt would

be readily directed, upon the recommendation of the Court. Non publication Though it is not necessary for the party insisting on the marriage to prove

publication of the banns, yet the want of due publication may be shewn on

the other side. Standen v. Standen, Peake's Rep. 32. After solemni.

The 3 Geo. IV. c. 75, s. 19, enacts, “ That after the solemnization of any banns, proof of

marriage under a publication of banns, it shall not be necessary in support of

such marriage, to give any proof of any such affidavit, nor shall any evidence not necessary. be received to prove that such affidavit was not made and delivered as

required by this act, in any suit touching the validity of such marriage ; nor shall such marriage be avoided for want of or by reason of any defect in any such affidavit, or on account of the true name or names of either party not being used in the publication of such banns, or for such name or names not having been affixed as aforesaid; but it shall be lawful in support of such marriage to give evidence, that the persons who are actually married by the names specified in such publication of banns were so married, and such marriage shall be deemed good and valid to all intents and purposes, noiwithstanding false names or a false name, assumed by both or either of the

of banns.

zation under

athidavit made

3. Evidence of

said parties in the publication of such banns, or at the time of the solemni. Secondly, Of zation of such marriage.”

evidence of setRex v. Billingshurst, 3 M. & S. 250. Removal from Salehurst to Billings

tlement, &c. hurst. Case: The pauper, whose name is Abraham Langley, was married to his present wife in Lamberhurst, by banns, about four years ago, by the settlement by name of George Smith. Previously to his marriage, he had resided about marriage. three years at Lamberhurst, and from his first coming, and during all the A person, whose time he remained there, he was known by the name of George Smith only. surname was -Lord Ellenborough, C. J. All that the law requires on this subject is, A. 1., was mar. that marriages shall be solemnized either by licence, or publication of banns, ried by banns by

, otherwise the 26 Geo. II. c. 36, s. 8, declares that they shall be void. The having been statute does not specify what shall be necessary to be observed in the publi- known in the cation of banns; or that the banns shall he published in the true names ; resided, and was but certainly it must be understood, as the clear intention of the legislature, married by that that the barins shall be published in the true names, because it requires that name only, notice in writing shall be delivered to the minister, of the true christian coming into the and surnames of the parties, seven days before the publication : and unless parish till his such notice be given, he is not obliged to publish the banns. The question marriage, which then is, Has there been, in this case, that which is required, a due notifi- years. Held, cation by the minister, on a Sunday, in time of divine service, of one of the that the marriage persons intending to contract marriage ? Now it appears that such notification has been made by the name of George Smith, by which name alone the party was known in the place where he resided, and which he had borne for three years prior to the celebration of the marriage, in that place, and that he was not known there by any other name. It would lead to perilous consequences, if, in every case, an inquiry were to be instituted, at the hazard of endangering the marriage of a woman, who had every reason to think she was acquiring a legitimate husband, whether the name by which the husband was notified in the banns were strictly his baptismal name, or whether at the period of his baptism he may not have received some other name. What the consequences might be, of encouraging such inquiries, as to the avoiding of marriages, and bastardizing the issue of them, it is not very difficult to imagine. The object of the statute, in the publication of banns, was to secure notoriety, to apprise all persons of the intention of the parties to contract marriage ; and bow can that ohject be better attained, than by a publication in the name by which the party is known ? If the publication here had been in the name of Abraham Langley, it would not of itself have drawn any attention to the party, because he was unknown by that name, and its being coupled with the name of the woman who probably was known, would perhaps have led those who knew her, and knew that she was about to be inarried to a person of another name, to suppose, either that these were not the same parties, or that there was some mistake. Therefore, the publication in the real name, instead of being notice to all persons, would have operated as a deception ; and it is strictly correct to say, that the original name, in this case, would not have been the true name within the meaning of the statute. On these grounds, I think that the act only meant to require, that the parties should be published by their known and acknowledged names, and to hold a different construction would make a marriage by banns a snare, and in many instances a ruin upon innocent parties. The Court, therefore, cannot lend itself to a construction which would be pregnant with such consequences.--Le Blanc, J. The object of the marriage act was to insure notoriety to the transaction, and, I think, the Court recollecting that, cannot say that a marriage by banns, published in the names by which alone the party was known, is a marriage without publication of banns. The argument is, that a marriage by publication of banns means, by publication of banns in the real names of the parties only; but the statute has said no such thing. If the banns be published in the names of the party, by which alone he is known, and there is no fraud, whether that be the true christian or surname of the party or not, I think the marriage is good within the meaning of the statute. "Therefore, I am of opinion, that, upon the present occasion, every thing was done

3. Evidence of

the man's real name, but in the name which he had assumed be.

where he had resided sixteen weeks, was held

Secondly, of that was sufficient to give that notification of the marriage which it was the evidence of selo object of the marriage act to insure. Order of sessions confirmed. tlement, &c. Rex v. Burton-upon-Trent, 3 M. f. S. 537. Removal from Grooby to

Burton-upon-Trent. Case: The pauper's father, whose real name was settlement by Joseph Price, was married at Leicester, by licence, by the name of Joseph marriage. Grew, having changed his name to Grew because he had deserted from the A marriage by army, and he was known by that name, only, at Leicester, where he lodged licence, not in

at the time of his marriage, and where he had resided sixteen weeks. He never passed by any name but Price in his father's family, and in the place

where they resided.' His wife did not know his real name till a fortuight cause he had de after the marriage, when he told it her. The pauper was the issue of this serted, he being marriage, and was born at Burton-upon-Trent, and after his birth his name only in the parents were married by the true name. The sessions considered the first place where he marriage as invalid, and therefore that the pauper was not entitled to his lodged and was father's settlement. It was argued, that the ceremonies required by the law married, and

to constitute a valid marriage, were for the public benefit as well as individual security, and therefore, whether the marriage be by banns or licence,

it is essential that it should be by the true name of the parties, otherwise it a valid marriage.

is a nullity. And this differs from Rex v. Billingshurst, because there the party had acquired a name, and an acquired name becomes the true name. But here the name, beside that it was assumed for sixteen weeks only, was assumed for the purpose of a fraud, in order to conceal the crime of desertion.—Lord Ellenborough, C. J. There is not any occasion to trouble the other side. If this name had been assumed for the purpose of fraud, in order to enable the party to contract marriage, and to conceal himself from the party to whom he was about to be married, that would have been a fraud on The marriage act, and the rights of marriage, and the Court would not have given effect to any such corrupt purpose. But where a name has been previously assumed, so as to have become the name which the party has acquired by reputation, that is, within the meaning of the marriage act, the party's true name. The same law has been recognised in the case of negotiable instruments, where, if a party sign an instrument in a name assumed by him for other purposes, a considerable time before, such signature will not amount to a forgery; but otherwise, if he assume a name by which he had never been known before, for the purpose of the fraud. Now, here the party assumed the name for the purpose of concealment, and not of fraud upon the marriage, and he was known by that name alone for sixteen weeks, in the place where he was married. It seems to me, therefore, that he had acquired the name, and that to have had a licence, in any other name, would have been a fraud on the marriage act.—Le Blanc, J. The name was assumed by the father for the purpose of concealing himself as a deserter from his Majesty's service, and not with a view to impose upon the woman whom he married.-Bayley, J. The sessions may always draw the line, whether the name was assumed for a fraudulent purpose, as it regards

the marriage, or not. Order quashed. (See 2 East's P. C. 967, 968.] Marriage by Rex v. St. Faith's, Newton, 3 D.& R. 348; 2 D. f. R. Mag. Ca. 34. Order

of removal of Ann Lovick, from Norwich to St. Faith's, Newton, confirmed. assumed by widow, void. Case: The pauper, whose maiden name was Ann Lovick, was married on

the 14th of September, 1812, to James Browne, a man of colour, whose settlement is unknown, and who was then a private in the 69th regiment. About half-a-year afterwards, Browne went to Ipswich, and the pauper, at his request, followed him thither, and remained with him there a few weeks, when she returned to Norwich, and never saw or heard any thing of her husband afterwards, except that a report reached her of his death by drowning, but it is not otherwise known when he died, or whether he is dead. On the 31st of March, 1822, and after the pauper bad received such information of the death of Browne, she was married, by banns, to William Rigg, widower, by the name and description of Ann Lgvick, widow. Both at Ipsuich, and after her return to Norwich, the pauper went by the name of Ann Loriek only, till her marriage with Rigg:- Bayley, J. The object of the statute was, to make it notorious to the world who were the parties that were about to

maiden name

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