said parties in the publication of such banns, or at the time of the solemnization of such marriage." Rex v. Billingshurst, 3 M. & S. 250. Removal from Salehurst to Billingshurst Case: The pauper, whose name is Abraham Langley, was married to his present wife in Lamberhurst, by banns, about four years ago, by the name of George Smith. Previously to his marriage, he had resided about three years at Lamberhurst, and from his first coming, and during all the time he remained there, he was known by the name of George Smith only. -Lord Ellenborough, C. J. All that the law requires on this subject is, that marriages shall be solemnized either by licence, or publication of banns, otherwise the 26 Geo. II. c. 36, s. 8, declares that they shall be void. The statute does not specify what shall be necessary to be observed in the publication of banns; or that the banns shall he published in the true names; but certainly it must be understood, as the clear intention of the legislature, that the banns shall be published in the true names, because it requires that notice in writing shall be delivered to the minister, of the true christian and surnames of the parties, seven days before the publication: and unless such notice be given, he is not obliged to publish the banns. The question then is, Has there been, in this case, that which is required, a due notification by the minister, on a Sunday, in time of divine service, of one of the 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 how can that object 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 married 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 that was sufficient to give that notification of the marriage which it was the object of the marriage act to insure. Order of sessions confirmed. was Rex v. Burton-upon-Trent, 3 M. § S. 537. Removal from Grooby to Burton-upon-Trent. Case: The pauper's father, whose real name Joseph Price, was married at Leicester, by licence, by the name of Joseph Grew, having changed his name to Grew because he had deserted from the army, and he was known by that name, only, at Leicester, where he lodged 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 fortnight after the marriage, when he told it her. The pauper was the issue of this marriage, and was born at Burton-upon-Trent, and after his birth his The sessions considered the first parents were married by the true name. marriage as invalid, and therefore that the pauper was not entitled to his father's settlement. It was argued, that the ceremonies required by the law 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 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.] Rex v. St. Faith's, Newton, 3 D. & R. 348; 2 D. & R. Mag. Ca. 34. Order of removal of Ann Lovick, from Norwich to St. Faith's, Newton, confirmed. 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 had received such information of the death of Browne, she was married, by banns, to William Rigg, widower, by the name and description of Ann Lovick, widow. Both at Ipswich, and after her return to Norwich, the pauper went by the name of Ann Lorick only, till ber 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 enter into the married state, and, therefore, wherever the name is fraudulently Rex v. Inhabitants of Tibshelf, 1 B. & Adol. 190. On appeal against an order of two justices, whereby Mary Betts, the wife of Joseph Betts, (commonly called Wilson,) living apart from her husband, and her six children, were removed from the parish of Mansfield, in the county of Nottingham, to the parish or township of Tibshelf, in the county of Derby; the sessions confirmed the order, subject to the opinion of this Court on the following case: The pauper and her husband (he having gained a settlement in the appellant parish by the apprenticeship hereinafter referred to) were married, in the year 1817, by banns, he by the name of Joseph Betts, and she by the name of Mary White. The husband had been baptized as the son of John and Mary Betts. Mary Betts was the daughter of Samuel Wilson, and her husband having absconded shortly after their marriage, her son, the pauper's husband, was brought up by his maternal grandfather, and was always called by the name of Wilson, was bound apprentice by that name, with the consent of his grandfather, and was never called or known by the name of Betts, or by any other name than Wilson, either before or after his marriage with the pauper. The pauper, Mary, was the legitimate daughter of Job and Martha Hodgkinson, and was never called or known by any name, except Hodgkinson, till after her marriage; but in the register of her baptism she is described as "Mary, the daughter of Samuel White and his wife." It appeared that her mother was the daughter of Samuel and Dorothy White, and that her father and mother resided with them at the time of her birth, and her mother's brother (who was called as a witness for the respondents) stated that he believed the entry in the register to have been a mistake of the clergyman who baptized her; and that he was the person who discovered the mistake in the register previous to the pauper's marriage, it having been supposed that her baptism was omitted to be registered.-Lord Tenterden, C. J., delivered the judgment of the Court. This cause arose out of an order for the removal of Mary, the supposed wife of Joseph Betts, and her six children, to Tibshelf, the settlement of the said Joseph Betts; and the question, whether that removal was right or not, depended upon the validity of the marriage between Joseph Betts and the said Mary. If the marriage was invalid, the order of sessions was wrong, and we are of opinion it was invalid. This marriage was in 1817, and at that time the only act by which marriages were regulated, was the 26 Geo. II. c. 33, which was finally repealed, except as to all acts, matters, and things done under its provisions, by 4 Geo. IV. c. 76. Neither that act, nor the repealed act 3 Geo. IV. c. 75, contains any clause rendering former marriages by improper banns valid; and if s. 19 of the latter act could have been construed as having that effect, it could not have any operation after the repeal of that act. The act 26 Geo. II. provides, by s. 8, that all marriages that shall be solemnised without publication of banns, or licence, shall be Secondly, Of evidence of settlement, &c. 3. Evidence of settlement by marriage. 4. Evidence in settlements by hiring and service. null and void to all intents and purposes whatsoever. In the directions in that statute for the publication of banns, nothing is said as to the names of the parties, but s. 2, excuses the minister from publishing them, unless the parties deliver in, in writing, their true christian and surnames. And in a series of decisions upon this statute, both in the ecclesiastical courts and the Court of King's Bench, it has been held, that the clear intention of the legislature was, that the banns are to be published in the true names of the parties, otherwise it is no publication at all. By these decisions these rules are fully established: first, that if there be a total variation of a name or names, that is, if the banns are published in a name or names totally different from those which the parties, or one of them, ever used, or by which they were ever known, the marriage in pursuance of that publication is invalid; and it is immaterial in such cases, whether the misdescription has arisen from accident or design, or whether such design be fraudulent or not. But, secondly, if there be a partial variation of name only, as the alteration of a letter or letters, or the addition or suppression of one Christian name, or the names have been such as the parties have used, and been known by, at one time and not at another; in such cases the publication may or may not be void; the supposed misdescription may be explained, and it becomes a most important part of the enquiry, whether it was consistent with honesty of purpose, or arose from a fraudulent intention. It is in this class of cases only, that it is material to enquire into the motives of the parties. The substance of these rules will be found in the judgments of Lord Stowell, in the cases of Sullivan v. Sullivan (a), Frankland v. Nicholson (b), Pougett v. Tomkins (c), and Mather v. Ney (d), and in the judgments in Rex v. Billingshurst (e), in this Court. The present case falls distinctly within the first rule. Whether the alleged husband was sufficiently designated by the name of Betts we need not enquire, as we are clearly of opinion that the woman was never known by, and never used the surname of " White," so as to make that, in any latitude of construction," a true name" within the meaning of the statute. Her family name, and that by which she was always known, was Hodgkinson. The only occasion upon which the name of White was applied to her was in the register of her baptism; she was not baptized by that name, for the surname is never used in the baptismal ceremony; but the name was entered in the register necessarily without her privity, and it seems without that of her parents, and probably by a mere error of the officiating minister, who appears to have mistaken her parentage, and considered her as the child of her maternal grandfather and grandmother. It is impossible, whatever may be the disposition to favour parties who have meant to act correctly, and from the best motives, to say that a surname so entered can be the true name of the party to whom it is applied. It is, doubtless, a great hardship upon these innocent persons to pronounce that this marriage is void, but it would be a much greater inconvenience to the public to alter the settled rules upon this subject, for the sake of preventing a particular mischief. Order of sessions quashed. 4. Evidence in Settlements by Hiring and Service (ƒ). The law relative to this mode of acquiring a settlement has been very fully considered (ante, 319 to 423). We have now only to consider the evidence in support of this settlement The evidence necessary to establish a settlement by hiring and service divides itself into three points; I. That the person was hired in the capacity of a servant for the period of a year; II. That he served in that capacity for a year; III. That within the compass of a year he resided for forty days in the parish or place in which the settlement is claimed. 1. With respect to the hiring; the law does not require that it shall (a) 2 Hagg. Consist. Rep. 254. (b) 3 M. & S. 261; 1 Phil. Rep. 147. (d) 3 M. & S. 265. (e) 3 M. & S. 256. be by express agreement, for if it can be implied from circumstances it will suffice, and where it is express, it is not required that it shall be by contract in writing, as an oral contract, which is the most usual mode, is equally effectual. An oral contract may be proved by any one who was present when it was made, whether it be the master, the servant, or any third person. If, however, the contract was in writing, the writing, being the best evidence of the contract, must, if possible, he produced, and is subject to all those general rules of evidence already explained. As to proof of handwriting or execution by the parties, or of its contents, when the instrument itself cannot be produced, which have already been explained, see ante, 302, 303. The agreement for the hire of a servant, unless it be a deed, requires no stamp (a.) And as it has been made the depository of the terms of the engagement, nothing which took place before or at the time when the agreement was executed, and which was not committed to writing, can be received to add to, alter, or qualify the written agreement. Though an independent, subsequent agreement will have the effect of varying the terms of the former written contract; and is therefore admissible for this purpose (b.) As already stated, if the instrument (ante, 801) be in the possession of the opposite party, notice should be given to that party or his attorney to produce it. This notice to the party or his attorney must be proved; if a verbal one, by the person who gave it, or by some one who was present when it was given; if in writing, by a duplicate original of the notice; this being done, if the party refuse to produce the instrument, secondary evidence may be given of its contents. Secondly, Of evidence of set tlement, &c. 4. Evidence in settlements by hiring and service. The contract. If the instrument is proved to be in the possession of the opposite party, who, after notice given, refuses to produce it, no proof of its execution is required (c). But on its being proved to be lost or destroyed, it must be authenticated in the same manner as if it were produced. [See ante, 797]. The terms in which the agreement is expressed, will determine whether Proofs of a genethe contract amounted to a hiring for a year. But it frequently happens ral hiring. that no particular term or duration of service is mentioned. In such cases, the rule is that, if there be no fraud, and nothing in the situation of the parties to rebut the notion of their standing in the relation of master and servant, if the engagement be not a mere engagement to serve at the will of one or both of the parties, and provided there be nothing in it which shows that it was meant to be for less than a year; then the hiring is to be taken as a hiring for a year. The instances of general hirings, which amount to a hiring for a year in contemplation of law, are already given at length under the head of settlements, by hiring and service, (ante, 342). It must be remembered, that the apprehension of the parties as to the meaning of the contract, or that either of them could dissolve it whenever he pleased, cannot alter or qualify the legal effect of their agreement. It may be expedient to repeat a few instances of hiring at will, as a contract, one of the conditions of which is, that the parties, or either of them, may determine it at any moment he pleases, is not in law a hiring for a year, although it should actually continue for a much longer period. Of this class are the following. In Rex v. Christ's Parish in York (d), B. went to A. for meat and clothes, Instances of hiras long as he had a mind to stop. In Rex v. Trowbridge (e), the hiring was for as long a time as the pauper pleased. ings at will. |