4, c. 72. STAT. 3 GEO. parish or place in which any new church or chapel shall have been built, or shall be built, acquired, or appropriated, for the use of such parish or place, instead of the old church or chapel of such parish or place, under the provisions of the churches, &c. said recited acts or this act, to authorize and direct the transfer of the endowments, emoluments, or rights, of or belonging to the old or existing church or chapel of existing to those churches built in aru thereof, such parish or place, or to the minister for the time being thereof, to any such new upon certain conditions. church or chapel so built, acquired, or appropriated, in such parish or place, and to the minister thereof for the time being, and his successors; and it shall be lawful in every such case for any trustees of any chapei, or of any rights, emoluments, or endowments, of or belonging to any church or chapel, or to the incumbent of any church or chapel for the time, and they are hereby required, to transfer all such rights, emoluments, and endowments, according to the direction of the said commissioners as aforesaid: provided always, that in every such case the inhabitants of the parish or place in which such new church or chapel shall be built shall raise and pay to the said commissioners, towards the expenses of such new church or chapel, either by subscription or rate, such sum at the least as would have been necessary for the repair of the old church or chapel, in case such new church or chapel had not been built, and such further sum as the inhabitants of such parish or place would have been liable to raise in such parish or place, for any purposes relating to the effectual and sufficient reparation of and maintaining such old church or chapel, or the cemetery thereof, or any other expenses incident thereto, or to which such parish or place would have been liable in respect thereof, in .case such new church or chapel had not been built; and immediately from and after any such transfer as aforesaid, all tithes or tenths, moduses, or other compositions for tithes or tenths, and all emoluments, dues, fees, offerings, oblations, obventions, and other profits and advantages, and all messuages, glebe and other lands, tenements, or hereditaments, rents, sums of money, or real or personal chattels whatsoever, and all rights and privileges wheresoever, and of what nature or kind soever, wherewith any such old or existing church or chapel then is, or at any time theretofore had or ought to have been, or at the time of such substitution of such new church or chapel for any such old or existing church or chapel may be endowed, or to which the minister thereof then is or at any time theretofore was or ought to be entitled, with all the respective rights, privileges, members, easements, and appurtenances thereto belonging or in any wise appertaining, or to or with the same or any part thereof had, held, used, or enjoyed, or accepted, reputed, deemed, taken, or known as part, parcel, or member thereof, or as belonging to such minister; and the same, together with all reversion and reversions, remainder and remainders, yearly and other rents, issues, estates, rights, interests, dividends, emoluments, and profits, of all and singular any such messuages, lands, hereditaments, rents, or sums of money, shall severally and respectively become and be vested in the parson or minister for the time being of the new church or chapel, and his successors for ever, in as full and ample a manner as the parson or minister of the old or existing church or chapel might or could have had, received, and enjoyed the same in case such substitution or transfer had not been made and passed; and every such substitution and transfer shall be registered in the registry of the diocese within which the place shall be locally situate, and enrolled in the high court of Chancery; and all acts of parliament, laws, and customs, relating to the publishing of banns of marriage, and celebration of marriages, christenings, churchings, and burials, and the respective registering thereof, and to all ecclesiastical fees, oblations, and offerings, shall apply to every such new church in like manner, in any respect as to the old church of the parish or place. "XXXI. And be it further enacted, that in every case in which the commissioners shail build or grant any sum of money in aid of the building of any new church or chapel, in any parish or place in which the patronage of or nomination or appointment of the ecclesiastical person to serve such church or chapel shall not Elong to his majesty, or to any body politic or corporate or collegiate, or any corporation sole or aggregate, or to any trustees, commissioners, directors, or other churches or chanels built by aid from 4, c. 72. persons having the charge, care, or management of any public or charitable insti- STAT. 3 GEO. tution, or to any trustees of any church or chapel, or to any private person, it shall be lawful for the said commissioners, by any instrument under seal, to declare that such patronage, nomination, or appointment shall, either for ever, or for such time and in such manner as the said commissioners shall direct, go to or be exercised by the bishop of the diocese within whose jurisdiction as diocesan such parish or place shall be, or if exempt from such jurisdiction, then by the bishop of the diocese in which such parish or place shall be locally situate; anything contained in any act or acts of parliament, or law or laws, or any usage or custom, to the contrary notwithstanding. commissioners, in certain cases to belong to the diocesan. circumstances, to be recorded in their proceedings, apply their powers in aid of parishes for procuring land, &c. "XXXII. And whereas doubts have arisen whether the commissioners are Commissioners empowered to use, exercise, and enforce certain of the provisions of the said recited may, under acts and this act in aid of the parishes and places in certain cases not within the any special limitations of the said recited acts, with respect to the population or extent of such parishes or places, or which may not come wtihin any of the regulations of the said recited acts or this act, in respect of any advances or loans in aid of such parishes, or in which parishes or places cannot comply with the regulations and restrictions contained in the said recited acts or this act; be it therefore declared and enacted, that it shall be lawful for the said commissioners, in any case in which they shall, under the special circumstances of any parish or place which shall not be within any of the provisions of the said recited acts or this act, deem it expedient, and they are hereby authorized and empowered, to use, exercise, and put in execution, all or any of the provisions of the said recited acts or this act relating to the procuring or taking of any land or ground for the purpose of procuring for any such parish or place, or of aiding in the procuring for any such parish or place, any land or ground for any of the purposes of the said recited acts or this act, or for the purpose of carrying into execution any of the provisions of the said recited acts or this act with respect to the division or consolidation of any parish or district: provided nevertheless, that the commissioners shall in every such case enter in their proceedings the nature of the special grounds and circumstances under which they shall deem it expedient so to act. "XXXIII. And whereas doubts have arisen and may arise as to grants made by the said commissioners, in cases in which trusts have been created by acts of parliament or otherwise, in relation to the churches or chapels for which such grants have been or may be made, and whether the making such grants may, under the provisions of the said recited acts and this act, interfere with such trusts; for remedy and prevention whereof, be it therefore declared and enacted, that it shall be lawful for the said commissioners to make any grant or grants in relation, or confirm any grant or grants heretofore made for any church or chapel in relation to which any trusts have been created by any act or acts of parliament, or any deed or deeds, or instrument of consecration, which may not in all respects concur with the provisions of the said recited acts or this act, and to declare at the time of making or confirming any such grant that any such trusts shall notwithstanding remain and continue in full force: provided always, that the commissioners shall, in any such case, enter in their proceedings the special grounds upon which every such grant has been made and confirmed; and in every such case such trusts shall remain and continue in full force; anything in the said recited acts or this act, or in the said trusts and regulations, to the contrary notwithstanding. "XXXIV. And be it further enacted, that in every case in which any grant Commissioners shall have been or shall be made of any land or ground, for any of the purposes of may reconvey the said recited acts or this act, as a gift, or without any pecuniary consideration land given for being paid for the same, and in which the commissioners shall determine not to apply such land or ground to any of the purposes of the said recited acts or this act, it shall be lawful for the said commissioners, and they are hereby authorized and empowered, to exchange any such land or ground for any other land or ground which may, in the judgment of the said commissioners, be more eligible for the purpose for which the same was given; or with the consent of the grantor or grantors thereof, or their heirs or successors, to apply such land or ground to any purposes of the acts, and not used, to the grantors, or their heirs or successors. For removing doubts as to the powers of the commissioners in rela tion to certain grants. 4, c. 72. STAT. 3 GEO. other ecclesiastical purposes, either as glebe or otherwise, for the use of the incumbent of the parish or place, or for the purpose of any parochial or charitable school, or any other charitable or public purpose relating to any such parish or place; or to reconvey, without requiring, taking, or receiving any pecuniary consideration for such reconveyance, any such land or ground, or any part thereof, in case only a part of any such land or ground shall have been applied to the purposes of the said recited acts or this act, to the grantor or grantors thereof, or their heirs or successors; anything in the said recited acts or this act to the contrary notwithstanding. "XXXV. Provided always, and be it further enacted, that nothing in this act contained shall extend or be construed to extend to repeal or alter, vary or affect, any powers, authorities, clauses, or provisions contained in any act or acts of parliament passed in the last session of parliament, or which may be passed in this present session of parliament, relating to any particular parish or place, or to authorize or empower the commissioners under the said recited acts or this act to make or enforce any order, direction, or regulation under the provisions of the said recited acts or this act, so as to alter or affect any such powers or authorities as aforesaid, or otherwise contrary to any clause or provision contained in any such act or acts of parliament relating to any particular parish or place; and that all the powers, authorities, clauses, regulations, and provisions in such local acts contained shall remain in full force, and be used, enforced, and applied in the same manner and by the saine persons as if this act had not passed; anything in this act to the contrary notwithstanding. This act not to affect the powers of acts relating to any particular parish. Powers of bishops, &c. not to be invalidated; but may exercise ecclesias tical jurisdic tion. Act may be altered or repealed this session. STAT. 3 GEO. 4, c. 75. 26 Geo. 2, c.33. "XXXVI. Provided always, and be it further enacted and declared, that neither this act nor the said recited acts, nor anything therein or herein contained, nor any act, matter, or thing done by or under the authority of the same, or of the commissioners under the said recited acts or this act, shall extend to invalidate or avoid any ecclesiastical law or constitution of the church of England, or to destroy any of the rights or powers belonging to any bishop of any diocese, or any archdeacon, chancellor, or official. "XXXVII. And be it further enacted and declared, that every bishop of any diocese, and every archdeacon, chancellor, and official respectively, may at all times hereafter visit, institute, and exercise ecclesiastical jurisdiction in all the parishes to be erected or divided by virtue or in pursuance of this act, and in every division or district into which any parish may be divided under the provisions of the said recited acts or this act, and in relation to every church and chapel within the same, as amply as they or any of them may do now therein, and in such manner as in any other parishes or places within his or their dioceses or jurisdictions respectively. "XXXVIII. And be it further enacted, that this act may be amended, altered, or repealed by any act to be passed in this present session of parliament." XLIII. STAT. 3 GEORGII 4, c. 75 (1). A.D. 1822. "An Act to amend certain Provisions of the twenty-sixth of George the Second, for the better preventing of Clandestine Marriages." "Whereas it is, amongst other things, provided, by an act passed in the twenty-sixth year of the reign of his late majesty King George the Second, intituled, 'An Act for the better preventing of Clandestine Marriages,' that all marriages solemnized by licence after the twenty-fifth day of March, one thousand seven hundred and fifty-four, where either of the parties, (not being a widower or a widow,) shall be under the age of twenty-one years, which shall be had without the consent of the father of such of the parties so under age, (if then living,) first had and obtained, or, if dead, of the guardian or guardians of the person of the party so under age lawfully appointed, or one of them, and in case there shall be no such guardian or guardians, then of the mother, (if living and unmarried,) or if there shall be no mother living and unmarried, then of a guardian or guardians (1) Stat. 3 Geo. 4, c. 75, ss. 8-26, have been repealed, but it has been considered advisable to print such sections. Vide Stat. 4 Geo. 4, cc. 17 & 76; Stat. 5 Geo. 4, c. 32; and Stat. 11 Geo. 4 & 1 Gul. 4, c. 18. 4, c. 75. of the person appointed by the court of Chancery, shall be absolutely null and void STAT. 3 Geo. to all intents and purposes whatsoever; and whereas great evils and injustice have arisen from such provisions; for remedy hereof, be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same, that so much of the said statute as is hereinbefore recited, as far as the same relates to any marriage to be hereafter solemnized, shall be and the same is hereby repealed. "II. And be it further enacted, that in all cases of marriage had and solemnized by licence before the passing of this act (1), without any such consent (2) as is required by so much of the said statute as is hereinbefore recited, and where the parties shall have continued to live together as husband and wife (3) till the death of one of them, or till the passing of this act, or shall only have discontinued their cohabitation for the purpose or during the pending of any proceedings touching the validity of such marriage, such marriage, if not otherwise invalid (4), shall be deemed to be good and valid (5) to all intents and purposes whatsoever. "III. Provided always, and be it enacted, that nothing in this act contained (1) Before the passing of this act :-The retrospective operation of Stat. 3 Geo. 4, c. 75, is not repealed by Stat. 4 Geo. 4, c. 76. Rose v. Blakemore, R. & M. 382. (2) Consent:-In Duins v. Donovan, (3 Hagg. 305,) Dr. Lushington observed: "The 3rd Geo. 4, c. 75, s. 2, (pleaded in the libel,) generally and practically speaking, may be said to render valid, with certain exceptions, all marriages of minors previously solemnized by licence without the consent of the parent or guardian, thus far restoring the general law as to the validity of such marriages, which the former act declared absolute nullities." (3) Continued to live together as husband and wife:-To have constituted a living together of persons as man and wife, under a marriage, whilst minors, without consent, &c. within Stat. 3 Geo. 4, c. 75, s. 2, so as to give the marriage legal effect, notwithstanding the provisions of the statute, the parties must either have cohabited till the death of one of them, or be separated by deed recognising their character as husband and wife, or a separate maintenance must have been allowed to the wife as such. In King v. Sansom, (3 Add. 277,) a marriage by licence which was null and void, by reason of minority, and want of legal consent, under Stat. 26 Geo. 2, c. 33, was held to be rendered a good and valid marriage by the retrospective operation of Stat. 3 Geo. 4, c. 75, it being held, that the parties, though not actually cohabiting up to the time of the passing of Stat. 3 Geo. 4, c. 75, did still continue to live together as husband and wife," in legal construction, within its true intent and meaning, up to that time, sufficiently to render the retrospective provisions of Stat. 3 Geo. 4, c. 75, applicable to such their marriage. 46 But in Poole v. Poole, (2 C. & J. 66,) where it appeared that, in February, 1816, a marriage took place between two minors, by licence, without consent; that they cohabited until June, 1816, when, from the miscondact of the husband, he was obliged to leave the house where they had been residing; that they then lived separate until October, 1817, when the husband died; that, after the separation in June, 1816, he, on various occasions, insisted that she was not his lawful wife, and gave that as a reason for not living with her again; but there was some slight evidence of small sums supplied to the wife, being allowed in the rent of a farm held under the husband, but under what circumstances did not appear :-it was held, that these parties did not live together as man and wife, until the death of the husband, within the meaning of Stat. 3 Geo. 4, c. 75, s. 2. In Bridgwater v. Crutchley, (1 Add. 473,) a marriage by licence was deemed null and void, under Stat. 26 Geo. 2, c. 33, by reason of minority and want of legal consent, and not to be cured by Stat. 3 Geo. 4, c. 75, s. 2, there not having been a subsequent cohabitation. (4) If not otherwise invalid:-Stat. 3 Geo. 4, c. 75, did not render good and valid marriages had by banns, prior to the passing of that act, such marriages being in themselves null and void by reason of undue publication of banns; but only such as, being had by licence prior to that period, were, in themselves, null and void by reason of minority and want of legal consent. A marriage, therefore, prior to the 1st of September, 1822, had in virtue of banns unduly published, is still a nullity; and must be so pronounced, upon proof made, in a suit instituted for that purpose. Thus, in Stayte v. Farquharson, (3 Add. 282,) a marriage had in virtue of false banns, (the wife, de facto, personating, at the time of the marriage, the female as for whose marriage with the husband, de facto, the banns had been published,) was pronounced null and void under Stat. 26 Geo. 2, c. 33, a statute still in force, as to the particular marriage under Stat. 3 Geo. 4, c. 75, and Stat. 4 Geo. 4, c. 76. (5) Good and valid :-A marriage which would have been void by Stat. 26 Geo. 2, c. 33, and had once been rendered valid by Stat. 3 Geo. 4, c. 75, s. 2, could not, subsequently, be rendered invalid by the marriage of either of the parties, during the life of the other, with a third person. Rex v. St. John Delpike, 2 B. & Ad. 226. Certain parts of 26 Geo. 2, relating to consent, repealed. Marriages solemnized by licence without quired by re- Act not to render valid shall extend or be construed to extend to render valid any marriage declared invalid by any court of competent jurisdiction, before the passing of this act, nor any marriage where either of the parties shall at any time afterwards, during the life of the other party, have lawfully intermarried with any other person. "IV. Provided also, that nothing in this act contained shall be taken or deemed to render any marriage valid, the invalidity of which has been established before the passing of this act, upon the trial of any issue touching its validity, or touching the legitimacy of any person alleged to be the descendant of the parties to such marriage. "V. Provided also, that nothing in this act contained shall be taken or deemed to render valid any marriage, the validity of which, or the legitimacy of any person alleged to be the lawful descendant of the parties married has been duly brought into question in proceedings in any causes or suits in law or equity in which judgments or decrees, or orders of court, have been pronounced (1) or made, before the passing of this act, in consequence of or from the effect of proof in evidence having been made in such causes or suits of the invalidity of such marriage, or the illegitimacy of such descendant. "VI. Provided further, and be it further enacted, that if at any time before the passing of this act any property, real or personal, has been in any manner possessed, or any title of honour has been in any manner enjoyed by any person or persons whomsoever, upon the ground, or upon the pretence, or under colour of the invalidity of any marriage, by reason that it was had and solemnized without such consent as aforesaid, then and in such case, although no sentence or judgment has been pronounced in any court against the validity of such marriage, the right and interest in such property or title of honour shall in no manner be affected or prejudiced by this act, or anything herein contained, but shall remain and be the same to all persons, and to all intents and purposes, as if this act had never been made. "VII. Provided always, and be it enacted, that nothing in this act contained shall extend or be construed to extend to affect or call in question any act done before the passing of this act under the authority of any court, or in the administration of any personal estate or effects, or the execution of any will or testament, or the performance of any trust. "VIII. And be it further enacted, that no licence for any marriage shall, from and after the first day of September in the year of our Lord one thousand eight hundred and twenty-two, be granted by any person having authority to grant the same, until oath shall have been made by the persons and to the effect required by this act; and if such licence shall be required for the marriage of parties, both or either of whom shall be alleged to be of the age of twenty-one years, such parties shall respectively make oath that they are respectively, and that each of them believes the other to be, of the full age of twenty-one years or upwards; and if both parties shall be under the age of twenty-one years, but shall be alleged to be a widower and widow, then each of such parties shall make oath accordingly, as to himself and herself, and as to his and her belief with respect to the other party; and if one of the parties shall be of the age of twenty-one years, but the other party shall be under that age, and a widower or widow, both parties shall make oath accordingly, as to himself and herself, and as to his and her belief with respect to the other party; and if both or either of the parties shall be under the age of twenty-one years, not being a widower or widow, both of such parties shall make oath accordingly, as to himself and herself, and as to his and her belief with respect to the other party; and in such case both parties shall also make oath that the person or persons whose consent shall be required by law to the marriage of such parties has been given, and has been signified in the manner required by this act; (1) Judgments or decrees, or orders of court, have been pronounced :-An appeal only suspends the sentence appealed from, and does not render it a nullity. Hence, the Stat, 3 Geo. 4, c. 75, which passed after a sentence of the Consistory court of London pronouncing a marriage null and void by reason of minority and want of consent under Stat. 26 Geo. 2, c. 33, though pending an appeal from that sentence, was held, in no degree, to affect the question of such mar. riage. Blyth v. Blyth, 1 Add. 312. |