pre tuled, 'An Act for the better preventing of Clandestine Marriages,' as was in force STAT. 4 GEO. immediately before the passing of this act, and also an act passed in the present 4, c. 76. session of parliament, intituled, 'An Act to repeal certain Provisions of an Act 26 Geo.2, c.33, passed in the third year of His present Majesty, intituled, "An Act to amend 4 Geo. 4, c. 17, repealed. certain Provisions of the twenty-sixth of George the Second, for the better venting of Clandestine Marriages,' "shall be and the same are hereby repealed; save and except as to any acts, matters, or things done under the provisions of the said recited acts, or either of them, before the said first day of November, as to which the said recited acts shall respectively be of the same force and effect as if this act had not been made; save also and except so far as the said recited acts or either of them repeal any former act, or any clause, matter, or thing therein contained. "II. And be it further enacted, that from and after the first day of November Banns, where, all banns of matrimony shall be published (1) in an audible manner in the parish when, and there was a custom within the city of London, and especially within that parish, that if any person die within that parish, being man or woman, and be carried out of the same parish, and be buried elsewhere, that there ought to be paid to the parson of this parish, if he be buried elsewhere, in the chancel, so much, and to the churchwardens so much, being the sums that they alleged were by custom payable unto them for such as were buried in their own chancel, and then alleging, that the wife of Sir John Ferrers died within the parish, and was carried away and buried in the chancel of another church, and so demand of him the said sum; whereupon, for Sir John Ferrers, a prohibition was prayed by Serjeant Harris, and upon debate it was granted; for this custom is against reason, that he that is no parishioner, but may pass through the parish, or lie in an inn for a night, should be forced to be buried there, or to pay as if he was, and so upon the matter, to pay twice for his burial.' "1 Salk. 332. Burdeaux v. Lancaster 'Dr.) and others, Hill. 9 Will. 3, B. R. Bardeaux, a French protestant, had his child baptized at the French church in the Savoy, and Dr. Lancaster, vicar of St. Martin's, in which parish it is, together with the clerk, libelled against him for a fee of 2s. 6d. due to him, and 1d. to the clerk. A prohibition was moved for, and Levinz urged this was an ecclesiastical fee due by the canon.-Holt, C. J. Nothing can be due of common right, and how can a canon take money out of a layman's pocket? Lindwood says it is simony to take anything for christening or burying, unless it be a fee due by custom, but then a custom fur any person to take a fee for christening a child when he does not christen it, is not good; like the case in Hobart, where one dies in one parish, and is buried in another, the parish where he died, shall not have a burying fee. If you have a right to christen you should libel for that right, but you ought not to have money for christening when you do not.' 4 • "Lord Raymond's Reports, 2nd vol. fo. 1338. 2 Geo. 2 Regis, B. R. 1729. Naybr qui tam v. Scott. In a prohibition granted to stay a suit in the spiritual court by the vicar of Wakefield, grounded upon a custom for a due for churching women, which was alleged to be this, viz. That "As to the clause in the marriage licence, (1) All banns of matrimony shall be published:-The two principal cases respecting · the publication of banns of matrimony are Tongue v. Allen, (1 Curt. 38,) and Wright v. Elwood, (Ibid. 49, 669;) vide etiam Brealy v. Reed, 2 Ibid. 833; Rex v. Tibshelf (Inhabitants of), 1 B. & Ad. 190; Rex v. Burton-upon-Trent (Inhabitants of), 3 M. & S. 537; Rex v. St. Faith's, Newton, 3 STAT. 4 GEO. church, or in some public chapel, in which chapel banns of matrimony may now or may hereafter be lawfully published, of or belonging to such parish or chapelry 4, c. 76. parties' are spoken of in the plural number, and there would have been no necessity for any enactment at all upon the subject, if the knowledge of one party would have been sufficient to render the marriage void, as there can hardly be a case, in which one of the parties must not be cognizant of the fact. 6. But, however this may be, the same construction has been put upon this section of the act in the courts of common law as in these courts; the cases have been referred to in the argument, and the court will notice them hereafter; at present it will be enough to say, that it entirely agrees in the soundness In Tongue v. Allen, (1 Curt. 41,) Sir of that construction; and it only remains to Herbert Jenner observed: be seen, whether there is a sufficient proof in the present case to justify the court in coming to the conclusion, that both parties were cognizant of the undue publication of banns, before the marriage was solemnized; for I also agree with the decisions before adverted to, that the knowledge must be shown to have existed before, and not after the marriage. The manner in which this knowledge is to be proved, must vary according to the circumstances of each case; that may be quite sufficient in one which would not suffice in another, and although it may be true, that in construing the law, the favourable or unfavourable nature of the transaction in question ought not to be taken into consideration, yet circumstances may give a greater or less effect to the evidence of the facts to which the law is to be applied, and may furnish a clue to guide the court to the proper conclusion to be drawn from them. It cannot be required, that in every case direct and positive proof should be adduced; if so, I am inclined to agree with the observations of Dr. Addams, that in most cases the fraud would be successful, the parties would have nothing to do but to keep their own secret. The court must therefore take all the circumstances into consideration, and deduce its conclusion from them. It was indeed hardly denied, that circumstantial evidence would be sufficient, but it was said, it must be such as to leave no reasonable doubt on the mind of the court. It is necessary then to consider, what the circumstances are. D. & R. 348; Clowes v. Clowes, 3 Curt. 185. The facts of such cases, and the reasons ments. "... The result then is this, that at the marriage the minor was between seventeen and eighteen years of age, the woman thirty-four or thirty-five, and a widow, or representing herself as such, and the sister of the master of the school where he was placed; that the marriage was clandestine, and continued secret and unknown to the family of the minor, for nearly twelve months; that the name of baptism, by which alone he was generally known, was omitted in the publication of banns; and that this was done for the purpose of concealment, in fraud of the father's rights, there can be no doubt. "The question therefore is, whether a marriage under such circumstances is good and valid according to the existing marriage law of this country; for under the original marriage act, (the 26 Geo. 2, c. 33,) the marriage would have been clearly void, it having been repeatedly held, that the omission of the name of general repute in the publication of banns, when for the purpose of fraud, rendered the marriage void, as in the case of Pouget v. Tomkins, (2 Consist. 142,) in which Lord Stowell observed, That all parts of a baptismal name ought to be set forth, as composing altogether the name and legal description of the party, yet he would not go the length of deciding, that in all cases the omission of a name would be fatal, where no fraud was intended, nor any deception practised, and where the suppression was only of a dormant name.' 4 **The present statute, (the 4 Geo. 4, c. 76,) equally requires the true names of both parties to be published, but in order to obviate the inconveniences, and to prevent the crying injustice which arose out of the law as it formerly stood, and the cruel injuries to which innocent parties were exposed, it has provided, that in order to annul a marriage on the ground of the banns having been unduly published, the parties must have knowingly and wilfully intermarried without due publication of banns;' the construction which has been put upon the twenty-second section of the 4 Geo. 4, c. 76, in the few cases as yet determined under it, is, that both parties must be cognizant of the undue publication. This, indeed, seems to arise necessarily from the words of the act itself; the wherein the persons to be married shall dwell, according to the form of words pre- STAT. 4 GEO. scribed by the Rubric prefixed to the Office of Matrimony in the Book of Common 4, c. 76. and marriage nizant of the undue publication, remains to be considered. Now, that Mrs. Allen knew cannot be denied; she in fact, although it is otherwise pleaded in the libel, gave the instructions for the publication of the banns; it was said, that the evidence as to this fact was irregularly introduced, and perhaps it was so, but if it were not true, it might have been contradicted even after publication, but no attempt of that kind was made either here or in the court below; I must therefore take that fact as proved. There is certainly no direct proof of concert between the parties, but there is a pretty strong presumption of it; both were living in the same house, having daily communication with each other; both must have known of the necessity for concealment, and neither could well have been ignorant of the means to be used from the very nature of the transaction; but it does not rest here; the proceedings at the time of the marriage are material; it is sworn, that it is the practice in this parish to show the banns book to both parties, and to inquire whether they are correctly described or not, and Sarah Haynes, the sextoness, says,' she is sure it was done on the present occasion.' Now, was the fact so or not? The witness deposes positively to the practice, and that it was observed on this occasion; if the fact were not so, it might have been counterpleaded, and the minister and clerk might have been brought to contradict the sextoness; there is no reason to believe, that she deposes falsely, and there can be no reason assigned why the usual practice should not have been adhered to at this marriage. Again, during the ceremony the minor must have answered to the name of Edward, and there is no evidence to show, that he evinced any surprise at being so addressed. And after the ceremony was concluded, he signed that name to the entry in the register, without besitation. This latter circumstance standing alone, might not perhaps have been sufficient to fix him with a knowledge of the undue publication of banns, but taken in conjunction with all the other circumstances, it goes a considerable way to satisfy me of his previous knowledge of the intended fraud. "These facts then taken altogether, form a strong body of evidence upon which the court, had this been the first case arising under the statute, might, and would, have felt itself justified in pronouncing this marriage to be void, as having been knowingly and wilfully by both parties contracted without dne publication of banns. But cases have been referred to, which the court must now proceed to consider, in order to see, whether they at all interfere with the impression it has stated itself to entertain, as to the effect of the evidence here produced. "The first, that of Wiltshire against Prince, (3 Hagg. 332,) in the Consistory court of London, was a suit brought by the father of a minor, for the purpose of setting aside the marriage of his son with a woman servant in the family; wrong names had been used in the publication of the banns, and there was clear proof that both parties knew it, and that it was for the purpose of fraud; there was no doubt of the fact of both parties being cognizant of the undue publication of banns before the marriage, and the court accordingly pronounced it void; that case therefore is important only, as showing the construction put upon the words of the act of parliament, by the learned judge of that court, namely, that both parties must be cognizant of the undue publication of banns; nothing was there determined as to the nature of the proof required. "The second case cited, was that of The King against The Inhabitants of Wroxton, (4 B. & Ad. 640,) which was a question sent by the quarter sessions for the opinion of the court of King's Bench. The facts were found by the justices, and the court was bound by them; on what evidence the justices came to the conclusion of the fact does not appear; but they stated, that the woman was ignorant of the false publication, although the names used were very different from the true names. "The decision of the King's Bench, on the facts found by the justices was, that as the woman did not know of the false publication of banns, the marriage was good; in fact, it goes no further than to adopt and confirm the construction which had been put upon the statute in the case of Wiltshire v. Prince. (3 Hagg. 332.) These cases, therefore, prove nothing more than that in order to render a marriage null and void, by reason of undue publication of banns, both parties must be shown to have been cognizant of the undue publication before the celebration of the marriage. "But the case more particularly relied upon, as applicable to the case now before the court, was that of Hadley v. Reynolds, which occurred in this court, but has not yet been reported. The circumstances of that case were extremely different from the present; there the husband, after a cohabitation of three years and a half, and the birth of a child, sought to set aside his own marriage, he himself having caused the banns to be published; it was so pleaded by him. He was a clergyman of twenty-six or twenty-seven years of age, the woman twenty-two, both were therefore at full liberty to contract marriage: no rights of third parties were invaded. The woman having no occasion to have recourse to fraudulent concealment, nor having any reason to suppose, that fraud was to be resorted to; there was no evidence to show, that she was at all acquainted with the intended use of false names; the banns were published at Birmingham, she was at Worcester; there was not any ground to presume, that there was any previous knowledge on her part of the undue publication; true it is, that she answered, during the ceremony, to the wrong name, and also after the marriage, signed STAT. 4 GEO. 4, c. 76. to be solem. Prayer, upon three Sundays preceding the solemnization of marriage, during the time of morning service, or of evening service, (if there shall be no morning service that name in the register; those were the only circumstances from which her knowledge could be inferred, and the court rightly holding, that in such a case the strictest proof was necessary, was of opinion, that those circumstances alone were not sufficient evidence of the fact. "But what is the present case? A woman, situated as I have described, persuades, for so I must presume, a boy not half so old as herself, to marry her; she knowing that he had a father, who would disapprove of the marriage, gives instructions for the publica. tion of the banns, omitting that, which must be considered as the only real baptismal name of the minor, and this for the purpose of fraud, the parties being in constant and daily communication with each other; they proceed to Bristol on the morning of the marriage, and return to school the same day, when they resume their usual occupations, she superintending her brother's pupils, he continuing his education; no one of his schoolfellows nor any one else suspecting that any connexion existed between them. It is precisely the case against which the legislature must have intended to provide; the maxim semper præsumitur pro matrimonio, strongly applies to Hadley's case, but not to this, where fraud was meditated by both parties, and which it may not unjustly be presumed, that both were acquainted with the means by which that fraud was to be carried into effect. "On the whole, I cannot bring my mind to doubt, that both parties knowingly and wilfully intermarried without due publication of banns, and I therefore pronounce for the appeal, retain the principal cause, and declare the marriage to be null and void." In Wright v. Elwood, (1 Curt. 669,) Sir Herbert Jenner stated, "... It has been maintained, that the publication of banns of a woman who is already married, and whose husband is alive, is a mere nullity; that it is not properly an undue publication of banns, but it is no publication at all, and that it would be contrary to the policy of the law if the court were to uphold a marriage not preceded by any publication of banns, nor by a licence; and it has been also stated, that such was the case, even before the passing of the first Marriage Act, (26 Geo. 2, c. 33,) in 1754. But I confess I do not feel very strongly the force of that argument; for, as far as I can understand the principle upon which marriages are made null and void, on these grounds, under the act, it is, that where false names are used intentionally, with a view of deceiving the public, it is no publication at all. So that in the case of the publication of false names, the publication is a mere nullity. In Pouget v. Tomkins, (2) Consist. 146,) Lord Stowell said, 'The clear intention of the act is, that the true names of the parties should be published, and if they are not so published, it is no publica. tion: no notice is given, and no opportunity is afforded to any one to allege an impedi. 4 ment. It has been constantly held, therefore, since the case of Early v. Stevens,' which was in 1785, and I believe the earliest case under the Marriage Act, that a publication in false names is no publication.' 'And on no other principle could such a case have been brought under the provisions of that act, where the terms made use of are, "without publication of banns;" it does not speak of "undue publication;" but that statute required that a marriage should be preceded by publication of banns, or by licence. It seems to me, that a marriage was void under that statute only where there had been no publication; undue publication was not sufficient, unless it amounted to the absence of all publication.' "This was the state of the law under the 26 Geo. 2, c. 33. Before that statute, marriages, without publication of banns or any religious ceremony, contracts per verba de præsenti, might be good and valid, though irregular; the parties and the minister might be liable to punishment, but the vinculum matrimonii was not affected. After the passing of the act 26 Geo. 2, c. 33, marriages were placed on a different footing, as to banns and licences; a certain degree of regularity was essential to the validity of the marriage contract, and marriages not preceded by banns or licence, were null and void. In that act, however, there was no provision for the protection of innocent parties, and many cases are in the recollection of the court in which it had produced very injurious consequences. Parties even guilty of actual fraud having obtained a separation without the possibility of doing justice to the party not cognizant of the fraud. "This state of things continued many years, but at length the legislature interfered to prevent the mischievous effects resulting from the provisions of this act, and to soften the rigour of the existing law. "I pass by the act 3 Geo. 4, which existed but for a short time, and I proceed to the act 4 Geo. 4, c. 76, which was in force at the time of this marriage, and is the law which is applicable to it. "This act begins by repealing all the former acts then in force. Part of the act 26 Geo. 2 had been repealed by the act 3 Geo. 4, but still part remained in force, and the remainder of that act, as well as the 3 Geo. 4, was repealed, so that, at that time, if the legislature had done no more, the common law and general law, as it existed before the marriage, would have been good and valid without any publication of banns or licence. But the legislature did not stop here; it went further, and declared, in the 22nd section, that where parties shall intermarry, knowingly and wilfully, without due publication of banns or licence, the marriage shall be null and void. It has not adopted the terms of the former act, declaring that marriages shall not be solemnized 'without publication of banns,' but the legislature has said: If any persons shall knowingly and wilfully in such church or chapel upon the Sunday upon which such banns shall be so STAT. 4 GEO. published,) immediately after the second lesson; and whensoever it shall happen 4, c. 76. that the persons to be married shall dwell in divers parishes or chapelries, the nized where banns shall in like manner be published in the church or in any such chapel as banns published. aforesaid belonging to such parish or chapelry wherein each of the said persons shall dwell; and that all other the rules prescribed by the said rubrick concerning the publication of banns and the solemnization of matrimony, and not hereby altered, shall be duly observed; and that in all cases where banns shall have been published, the marriage shall be solemnized in one of the parish churches or chapels where such banns shall have been published, and in no other place what soever. III. And be it further enacted, that the bishop of the diocese, with the consent of the patron and the incumbent of the church of the parish in which any public chapel having a chapelry thereunto annexed may be situated, or of any chapel situated in an extra-parochial place, signified to him under their hands and seals respectively, may authorize by writing under his hand and seal, the publication of banns and the solemnization of marriages in such chapel for persons residing within such chapelry or extra-parochial place respectively; and such consent, together with such written authority, shall be registered in the registry of the diocese. “IV. Provided always, and be it enacted, that in every chapel in respect of which such authority shall be given as aforesaid, there shall be placed in some conspicuous part of the interior of such chapel a notice in the words following: 'Banns may be published and Marriages solemnized in this Chapel.' “V. Provided always, and be it further enacted, that all provisions now in force, or which may hereafter be established by law, relative to providing and keeping marriage registers in any parish churches, shall extend and be construed to extend to any chapel in which the publication of banns and solemnization of marriages shall be so authorized as aforesaid, in the same manner as if the same intermarry without due publication of banns, or licence, from a person or persons having authority to grant the same, first had and obtained, the marriages of such persons shall be null and void, to all intents and purposes whatsoever;' thereby, as I have stated, softening the rigour of the former law, under the 26 Geo. 2. And according to the construction put upon this section by the Consistory court of London, (Wiltshire v. Prince, 3 Hagg. 332,) by this court during the time of my predecessors, (Hadley v. Reynolds, not reported,) as well as in my own time, (Tongue v. Allen, 1 Curt. 38,) by the court of King's Bench, (Rex v. Wroxton (Inhabitants of), 4 B. & Ad. 640,) and I think I might say by the judicial committee of the Privy Council, Tongue v. Tongue, 1 Moore's P. Č. Ca. 90,) (though, perhaps, the point has not received actual and direct decision of the latter tribunal,) where the parties are not both cognizant of the false name, the marriage cannot be declared void. It is necessary, that both the parties should be accessary to the fraud; the act of one will not operate to the prejudice of the other, unless a participator. The question then is, as the act speaks of marriages without due publication of banns,' what is the consequence, where there is no publication of banns? For, according to Lord Stowell, in the case to which I have averted, the publication of banns, in a false name, is equivalent to no publication. The court can see no difference between the cases, which stand precisely on the same grounds; nor does there seem a reason why there should be a difference; the fraud is the same in both; the remedy is the same in both. "It is, however, contended that the words, 'without due publication of banns,' used in the statute 4 Geo. 4, c. 76, do not extend to cases of marriage not preceded by any publication of banns, as there are no words in the act to that effect; but if that were so, the former Marriage Act being repealed altogether, upon its repeal, the general law was revived, and came into operation, and continues to be in operation, except so far as it is qualified and restrained by the 4 Geo. 4, c. 76, the only act now in operation; and unless this act extends to cases of marriage not preceded by any publication of banns, as distinguished from undue publication, a marriage, where a false name was used, would be a good and valid marriage. But I have no doubt, that a marriage, which has not been preceded by any publication of banns at all, is a marriage within the meaning of the terms, that is, a marriage without due publication of banns. Marriages without due publication of banns, are declared null and void, and I should be glad to know how it is possible, that that can be a due publication of banns, which is no publication at all, and how it can be contended, with any effect, that marriages, where the publication of banns is a mere nullity, can be distinguished from marriages without a due publication of banns." It may be here remarked, that in Campbell v. Aldrich (Clerk), (2 Wils. 79,) a prohibition was granted to a suit in the spiritual court, for marrying without banns or licence, because it was a matter of temporal jurisdiction. Bishop, with consent of pa tron and incumbent, may authorize publication of banns in any public chapel. Notice to be placed in such chapel. Provisions relative to marriage registers extended to chapels so |