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there. Ganer v. Lady Lanesborough, Peake's N. P. C. 17. Lord Kenyon, C. J. Where plaintiff and his wife were Quakers, proof of a marriage according to the forms of that society was received without objection. Deane v. Thomas, Moody & Malkin, 361. Tenterden, C. J.
In consequence of a decision (R. v. Northfield, Doug. 658.) which took place, confining the construction of Lord Hardwicke’s Act, 26 Geo.2.c.33.s. 1. to chapels existing at the time of passing the act, several statutes have been made from time to time, to give validity to marriages solemnized in chapels erected since Lord Hardwicke’s Act, and to make the registers of such marriages evidence. See stat. 21 Geo. 3. c. 53.; 44 Geo. 3. c. 77.; 48 Geo. 3. c. 127.; 6 Geo. 4. c. 92. Stat. 5 Geo. 4. c. 32. 11 Geo. 4. and 1 W. 4. c. 18, relate to the solemnization of marriages, where churches are rebuilding or under repair. By 5 & 6 W. 4. c. 54. all marriages celebrated before 31st of August, 1835, between persons within the prohibited degrees of affinity are not to be annulled by sentence of ecclesiastical court, except in suits depending on that day; but by s. 2. such marriages hereafter are made absolutely void. This act, however, does not extend to Scotland.
A soldier on serviced with the British army in St. Domingo, in 1796, being desirous of marriage with the widow of another soldier, who had died there in the service, and both parties being desirous of celebrating their marriage with effect, they went to a chapel in a town where they were, and there the ceremony was performed by a person appearing there as a priest, and officiating as such; the service being in French but interpreted into English by one who officiated as clerk; and which the woman understood at the time to be the marriage service of the church of England. After this they cohabited together as man and wife for 11 years, until the death of the husband. On a question as to the settlement of the woman, a doubt was raised whether the marriage was valid. The court of B. R. were clearly of opinion that it was a valid marriage, whether it was to be considered as a marriage celebrated in a place where the law of England prevailed, or as a marriage according to the law of St. Domingo, whatever that might be. Upon the former ground, inasmuch as there was a contract per verba de presenti, which contracts were binding on the parties before Lord Hardwicke's act, which did not affect the present case, this being a marriage beyond seas, and because the marriage was celebrated by a person who pub
d R. v.
Brampton, 10 East, 282.
licly assumed the office of a priest, and appeared habited as such: upon the latter ground, because upon the facts stated, every presumption must be made in favour of its validity, according to the law of the country where it was celebrated; the marriage ceremony having been performed there in a proper place, and by a person officiating as one competent to perform that function, and more especially as it had been followed by a cohabitation between the parties, as man and wife,
for 11 years.
The canon law is the general law throughout Europe, as to marriages, except where that has been altered by the municipal law of any particular place. Before Lord Hardwicke's act, marriages in this country were always governed by the canon law. That statute did not follow British subjects to our foreign settlements; hence, it has been holdene, that a marriage between two British subjects, solemnized by a Catholic priest at Madras, according to the rites of the Catholic church, followed by cohabitation, is valid, although without the license of the governor, which it had been uniformly the practice to obtain; for that does not alter the law, which the parties carried with them.
Heretofore marriages could have been solemnized, except by special license, only in parish churches or chapels, according to the rites of the church of England; but now under the new actf, which received the royal assent on the 17th August, 1836, and is to take effect on 2434441837, marriagesmay be solemnized in any certified place of religious worship duly registered, or at the office of the Superintendent Registrar, according to any form and ceremony the parties may see fit to adopt; provided they pay strict attention in conforming to the regulations prescribed by the act; of which the following are most deserving of remark : 1st, The notice of marriage to the Superintendent Registrar. As this notice is to be read at the meeting of guardians", it will have an effect similar to the publication of banns. 2ndly, The certificate', which S. R. is empowered to issue, if there be no lawful impediment shewn. 3rdly, Where the marriage is by license which S. R. is empowered to grantk, care must be taken as to the consent; for the like consent! is required to marriages solemnized by license under this act as before. The 12th section directs what acts are required before license can be granted. The licenses by archbishop of Canterbury proper officers, and surrogates are left untouchedm. 4thly, Time. Twenty-one days must elapse after day of entry of notice, if no license; if license, seven days" before marriage can be solemnized. If three months are suffered to elapse after notice, without marriage, a new notice must be given. The old hours are to be observed, during which the marriage can be solemnized, viz. between eight and twelve in the forenoon. Fifthly, The marriage must be solemnized as the act directso; 1. with open doors; 2. between the stated hours; 3. in presence of registrar and witnesses; if at office, presence of S. R. also is required; 4. in some part of the ceremony the declaration before the witnesses in the form prescribed; lastly, there must be no lawful impediment. If these particulars be not duly observed, the marriage is made voidP; but if they are strictly attended to, the marriage is as good and cognizable in like manner as a marriage before this act, according to the rites of the church of England. In the case of a fraudulent marriage, the guilty party forfeits all property accruing from the marriage under a provision similar to that contained in the 4 Geo. 4. c. 76. S. 23. But the new law extends only to Englands, and does not extend to the marriage of any of the royal family. Quakers and Jewst may contract and solemnize marriages according to usage as before, provided both parties are Quakers or Jews, and the notice to registrar has been given and his certificate issued. As to the registers of marriages the reader should be apprized that so much of the stat. 52 G. 3. c. 146. and 4 G. 4. c. 76. as relates to the registration of marriages, has been repealed by stat. 6 & 7 W. 4. c. 86, which is to take effect on the same day as the preceding marriage act, and which is to be taken as part of it, as fully as if incorporated with itu.
e Lautour v. Teesdale, 8 Taunt. 830. f Stat, 6 & 7 W. 4. c. 85.
i 8.7. k S. ll. I S, 10.
g S. 4.
h S. 6.
In cases where the marriage is to be proved by the production of the register, or an examined copy, proof must also be adduced, if required, of the identity of the parties. But the minister and subscribing witnesses are not the only competent witnesses to prove the identity. In Birt v. Barlow, Doug. 170, Buller, J. observed, that it was not necessary to produce the original register, and that it was only where that was required, that subscribing witnesses must be called; that in this case the wife's maiden name was Harriet Champneys;
m S. 1. RS. 14. o S. 20. PS. 42. 9 S. 35.
r S. 43. s S. 45. t s. 2. u $. 44.
and supposing a maid servant had proved, that she always went by that name till the day of the marriage, that she went out that day, and on her return and ever since had been called Mrs. Birt, that would have been evidence of the identity. An omission in the marriage register of the signatures of the minister, parties, and witnesses, has been holden* not to affect the validity of a marriage, quoad a parish settlement, where it was clearly proved, aliunde, that a marriage had actually taken place.
The books of the Fleet are not evidence of a marriage. Per Kenyon, C. J. in Reed v. Passer, Peake's N. P. C. 231. 1 Esp. N. P. C. 213. S. C. S. P. per de Grey, C. J. in Howard v. Burtonwood, Middlesex Sittings after Trin. Term, 16 G. 3.; and previously by Lord Hardwicke, and since by Le Blanc, J., in Cooke v. Lloyd, Salop Summer Assizes, 1803, Peake's Evidence, Append. xxxvi. But in Doe dem. Passingham v. Lloyd, Salop Summer Assizes, 1794, Heath, J. admitted these books in evidence. See Lloyd v. Passingham, 16 Vesey, 59.
Proofs of adultery must in many cases be in some degree presumptive; real and direct proof of the fact is not always to be expected; therefore the question in these cases will be, whether there is evidence of such near, such approximate acts, that there must be a legal presumption of the adultery. The confession of the wife is not evidence against the defendant; but conversations between her and the defendant may be given in evidencey. So letters written to her by the defendant are evidence against him; but the wife's letters to the defendant are not evidence for him. In a case, where the plaintiff and his wife were servants, and necessarily living apart in different families, Lord Kenyon, C. J. was of opinion, that letters written by the wife to her husband, before any suspicion of the adultery, might be read as evidence of the connubial affection which subsisted between the plaintiff and his wife, observing, at the same time, that, before he admitted the letters to be read, he should require strict proof when, and under what circumstances they were written, in order to shew that at this time there was not any suspicion of misconduct in the wife; and in Willis v. Bernard, 8 Bingh. 376. the letter of the wife to a third person was admitted to shew the state of the wife's feelings at the time it was written, although it contained a statement of facts, which could not with propriety be submitted as evidence to a jury; on which, however, the judge cautioned the jury, telling them, that the letter was not evidence of those facts. In Winter v. Wroot, 1 Moody & Rob. 404, Lyndhurst, C. B. permitted a witness to be asked generally, whether the wife made complaints of the manner in which her husband treated her.
X R. v. St. Devereux, Burr. S.C. 506.
1 Bl. R. 367. S. C. y Biker v. Morley, M. D. London Sit
tings, 30 June, 1741, Lee. Ch. J. special jury. Verdict for defendant. Bull. N. P. 28. S. C.
z Edwards v. Crock, 4 Esp. N. P. C.
39. Kenyon, C. J. Trelawney v. Coleman, 1 B. and A. 90, S. P.; and 2 Stark. 191. But in this case the husband and wife were not servants. a Hoare v. Allen, 3 Esp. N. P. C. 276. b Bull. N. P. 27.
In Hoare v. Allena, a witness was called by the husband to prove the representation made by the wife to him of the place to which she was going previously to her elopement, in order to remove all suspicion of connivance on the part of the husband. The Court of King's Bench were of opinion, that this evidence, being part of the res geste, was therefore admissible.
IV. Of the Damages. The damages given by the jury in this action are, in general, proportioned to the degree of the injury. Circumstances of aggravation of the injury, and which may therefore operate as an inducement with the jury to give large damages, are, the plaintiff's having lived happily with his wife before her connection with the defendant, the unblemished character and antecedent virtuous behaviour of the wife, a provision having been made for the children of the marriage by settlement or otherwise, and other similar topics which the extraordinary circumstances of the individual case may furnish. Proof is frequently adduced of the defendant being a man of fortune, by calling his banker, or producing a settlement, under which he may be entitled to any estate, real or personal. But in James v. Biddington, 6 C. & P. 589, Alderson, J. is reported to have rejected evidence of this description, observing that the amount of the defendant's property was not a question in the cause.
Circumstances of extenuation, on the part of the defendant, and which may tend to the mitigation of the damages are, the plaintiff's ill usage, or unkind treatment of his wife; evidence of his intolerable ill temper, of his having turned his wife out of his house', and refused to maintain her, &c. previously to the adulterous intercourse; gross negligence or inattention of the plaintiff o his wife's conduct, with respect to the de