management *of the mariners and servants of the defendants.

*777] I will assume, for the purpose of this judgment, that the bottom of the sea may be used for lawful purposes. The question has arisen in respect of oyster-beds and sunken vessels: and we may take it, inasmuch as there are acts of parliament on the subject, that the placing of telegraphic cables at the bottom of the sea is a known mode of using that part of the earth's surface. The plaintiffs' property, therefore, was lawfully placed where it was. The defendants also had an undoubted right to navigate the high sea, and, if need be, to let go their anchor wherever the safety or convenience of their ship required it to be done. These two rights happen to conflict. Upon the face of the declaration, therefore, it appears that the property of the plaintiffs was damaged by an anchor of the defendants dropped in a place where they had a right to drop it. Then comes the replication, which admits the defendants' right to anchor, provided that right be exercised with due care and skill, in the ordinary course of navigation, but alleges that what was done was done negli gently and contrary to the due course of navigation. The whole essence of the case thus turns upon the word negligent. It is conceded that the court has jurisdiction over the matter. If what the defendants did was done wilfully, no doubt they would be responsible. Omitting all about the jurisdiction of the court, and the defendants being aliens, and the vessel a foreign vessel, the defendants by their pleas allege, that, in the usual and ordinary course of navigation, they had occasion to cast anchor, that, in raising it, it became entangled with the telegraphic cable and unavoidably dragged and injured t, that there was no mark or buoy to indicate the position of the cable, which was incapable of being seen, and that they were unaware of its existence. The answer to that in the replication *is, *778] that the damage arose from the defendants' negligence and

want of care in navigating their ship, and from their culpable want of knowledge, in omitting the means of knowledge at their command. In the ordinary case of a highway, if damage is occasioned to an individual through the negligent use of it, the party so negligently using it is responsible. The plea appears to me also to be good. It is in effect a traverse of the negligence charged, and is what is already put in issue under not guilty. This discussion, however, will be valuable, inasmuch as it will tend to bring more precisely before the jury the real question which they will have to try. Negligence is a word of very undefined signification: and the attempt to draw the line between it and wilful acts has always been a source of great confusion. The substance of the plea is, that the defendants were lawfully navigating their vessel on the high seas, and in the ordinary course of navigation let down their anchor, and in getting it up, it having without any default of the defendants become entangled with the telegraphic cable, of the position and existence of which they were unapprised, the damage complained of ensued. If that be so, I do not think it can be said that a foreigner is bound before he casts anchor on the high seas, to inquire whether there is a telegraphic cable at the bottom which may be injured by the exercise of his natural right. The replication and new-assignment in effect traverse the plea, and say that the acts done by the defendants were not done

in the due and ordinary course of navigation, or with ordinary care and skill, and that, if they had no knowledge of the existence and position of the telegraphic cable, they had the means of knowledge, and were guilty of negligence in not availing themselves of such means of knowledge. If this takes away the force of the plea, the declaration, which is good, stands. As to the argument, that the defendants would have had a right of action if their vessel [*779 had been damaged in consequence of the telegraphic cable being laid down without anything to indicate its position, it seems to me that that would raise precisely the same question. It comes at last to a question of negligence.

WILLIAMS, J.—I am of the same opinion. The declaration is good by reason of the imputation of negligence; and the plea is good as an argumentative traverse of that negligence. There is more difficulty about the replication and new-assignment: but, upon the whole, I am willing to treat them as my Lord has done.

WILLES, J.-I am of the same opinion. Mr. Archibald admits that there is nothing in the allegation as to the three miles. The rights and duties of persons navigating vessels apply equally whether in port or on the high seas. It is the duty of the persons navigating so to exercise their rights as to do no damage to the property of others. I see no substantial difference between a telegraphic cable and another ship,--except that the position of the cable may or may not be known, and it may or may not have been the duty of the master of the vessel to know that it was there. The more or less difficulty of the case can only be taken into consideration by a jury. I cannot imagine that a man would be justified in wilfully or negligently injuring an anchor even when improperly dropped in a fairway, if he knew it was there. No one is justified in wilfully or by culpable negligence injuring property of another, whether above or under water. In the case of The Batavier, 10 Jurist 19, where one vessel came into collision with another, which was lying at *anchor, Dr. Lushing [*780 ton says: "The presumption of law, where a vessel at anchor is run down by another, I take to be this,-that the vessel running down the other must show that the accident did not arise from any fault or negligence on her own part; and for this reason, that the vessel at anchor has no means of shifting her position, or avoiding the collision; and it is the duty of every vessel, seeing another at anchor, whether in a proper or improper place, and whether properly or improperly anchored, to avoid, if it be practicable and consistent with her own safety, any collision. This is the doctrine, not merely of maritime law, but of common sense: it is the doctrine which prevails on roads; where, supposing a carriage to be standing still on the wrong side, it is no justification for another running against it, though the latter (?) be on the right side." I think the declaration in this case is good and for the same reason I think the fifth and ninth pleas are good. The second replication and the new-assignment are also good, inasmuch as they substantially traverse the allegations in the pleas. The third replication is bad, because it selects a portion of the plea which is not material; and on that there must be judg ment for the defendants. Upon all the rest the judgment will be for the plaintiffs. Judgment accordingly.

*781]

*SICHEL v. LAMBERT.

Jan. 11.

In order to sustain a plea of coverture, the defendant swore, that, in 1844, she was married to one J. L. at a Roman catholic chapel in London (both parties being Roman catholics); that the ceremony was performed by a priest, in the way in which Roman catholic marriages are ordinarily solemnized; that she cohabited with J. L. for several years, and until he went to Australia, where he now resided:

Held, that the court and jury might presume that the marriage was valid, though it was not proved either by oral testimony or by the certificate given by the priest on the occasion, that the place where the marriage was solemnized was licensed under the 6 & 7 W. 4, c. 85, s. 18, or that the registrar was present,-the contrary not appearing.

THIS was an action for goods sold and delivered. Plea, amongst others, coverture.

The cause was tried before Keating, J., at the sittings at Guildhall after last Trinity Term. In order to sustain her plea of coverture, the defendant stated that she was married to John Lambert in 1844, at a Roman catholic chapel in George Street, Portman Square; that she and Lambert were both Roman catholics; that they were married by a priest in the way in which Roman catholic marriages are ordinarily solemnized; that they lived together for some years; that her husband was in Australia; and that she had received a letter from him a few weeks before the commencement of the action. She also produced a certificate of the marriage from the priest by whom the ceremony was performed; and a certificate showing that the civil contract of marriage had been performed before the French consul. There was no proof, however, that the person who performed the ceremony of marriage was a priest, or that the chapel was a place licensed for the celebration of marriages, or that the registrar was present at the time.

On the part of the plaintiff it was submitted that the evidence was not sufficient to establish the coverture, inasmuch as it was not shown that the ceremony took place in a registered place of worship. The learned judge, however, overruled the objection, and directed a verdict to be entered for the defendant upon that issue, reserving the plaintiff leave to move.

Marshall Griffiths, in Michaelmas Term last, accordingly obtained a rule nisi to enter the verdict for the plaintiff upon the issue on the plea of coverture.

*Beasley now showed cause.-Parol evidence of a marriage,

*782] followed by cohabitation, has always been considered to be sufficient to sustain a plea of coverture: Hopewell v. De Pinna, 2 Campb. 113; Catterall v. Catterall, 1 Rob. E. R. 304; Campbell v. Corley, 28 Law T. 109. [WILLIAMS, J.-The sole question here is, whether there was evidence from which the jury might infer that the place where the ceremony was performed was registered.] The marriage (the parties being innocent) will be valid, although the place be not registered. By the 18th section of the 6 & 7 W. 4, c. 85, any certified place of religious worship may be registered for the solemnization of marriages therein. Section 20 requires the marriage in such registered place to be performed in the presence of the registrar. This, however, it is submitted, is directory only: there are no words making the marriage void for non-compliance therewith. The 35th section enacts that every marriage solemnized under that act shall be

good and cognisable in like manner as marriages before the passing of the act according to the rites of the church of England. The 39th section enacts that "every person who after the 1st of March, 1837, shall knowingly and wilfully solemnize any marriage in England, except by special license, in any other place than a church or chapel in which marriages may be solemnized according to the rites of the church of England, or than the registered building or office specified in the notice and certificate as aforesaid, shall be guilty of felony (except in the case of a marriage between two of the society of friends, commonly called quakers, according to the usages of the said society, or between two persons professing the jewish religion, according to the usages of the jews); and every person who in any such registered building or office shall knowingly and wilfully solemnize any marriage in the absence of a registrar of the district. [*783 in which such registered building or office is situated, shall be guilty of felony," &c. And the 42d section enacts, that, "if any person shall knowingly and wilfully intermarry after the said Ist of March, under the provisions of this act, in any place other than the church, chapel, registered building, or office, or other place specified in the notice and certificate as aforesaid," &c., "or in the absence of a registrar or superintendent registrar where the presence of a registrar or superintendent registrar is necessary under this act, the marriage of such persons, except in any case hereinafter excepted, (a) shall be null and void." In the absence of evidence to the contrary, the court will assume that all was rightly done. [WILLES, J.-In The Queen v. Manwaring, 1 Dears. & Bell, C. C. 132, upon an indictment for bigamy, it appeared that the first marriage took place in a dissenting chapel duly licensed for marriages, and a witness was called who proved that he was present at the marriage, that it took place in the dissenting chapel in the presence of the registrar, that the entry of the marriage in the registrar's book was signed by the witness as a witness to the marriage, and that the parties afterwards lived together as man and wife for some years. It was held,-first, that the parol testimony of the witness sufficiently proved the fact of marriage,— secondly, that there was primâ facie evidence that the chapel was duly registered and was a place in which marriages might legally be solemnized. Wightman, J., there says: "The presence of the registrar at the marriage, the fact of the ceremony taking place, and the entry in the registrar's book, of which a copy was produced at the trial, seemed to me at the time to be circumstances which afforded, and I now *think, aided as they are by the presumption omnia rite esse [*784 acta, they do afford, primâ facie evidence that the chapel was a duly-registered place, in which marriages might be legally celebrated. If it were not such a place, all those who took part in the proceedings would be criminally liable for doing so." It is true the registrar there was proved to have been present: but that was not necessary to the reasoning of my Brother Wightman. WILLIAMS, J.-The statute requires the chapel to be registered as a place for the solemnization of marriages, and that the registrar shall be present. Can we, in the absence of all proof, presume that these two requisites were duly complied with? WILLES, J.-In Piers v. Tuite, 1 Drury

(a) Of marriages solemnized according to the provisions of the 4 G. 4, c. 76.

& Walsh 279, 299, (a) Lord Plunket, C., dealing with a marriage which took place at Douglas, Isle of Man, says: "According to the doctrine laid down by the ecclesiastical judges, and which doctrine is recognised by the common law of the land, it lies upon the party impeaching the marriage, after that a marriage de facto has been established, to prove that it is null and void as a marriage: this has not been attempted by the defendants, and consequently, on the principle 'semper præsumitur pro matrimonio,' I must presume that the forms required by the act (b) were complied with, and pronounce the marriage in question to have been a legal and valid one."]

Garth, in support of the rule.-No doubt, long cohabitation affords *785] presumptive evidence of a marriage: but, where the party who

relies upon the fact of marriage goes on and shows where and how the ceremony *took place, he must show that all the legal requisites of a valid marriage were complied with. The act of parliament requires not only that the building shall be registered, but that the registrar shall be present: there was no proof that either of these conditions to the validity of the marriage was complied with. [WILLES, J.-In The King v. The Inhabitants of Brampton, 10 East 282, two British subjects at St. Domingo, being desirous of intermarrying, went to a chapel for that purpose, where a service in the language of the country (French) was read by a person habited like a priest, and interpreted into English by the officiating clerk,-which service the parties understood to be the marriage-service of the church of England; and they received a certificate of the marriage, which was afterwards lost: and this was held to be sufficient whereon to found a presumption (nothing appearing to the contrary) that the marriage was duly celebrated according to the law of St. Domingo,-particularly after eleven years' cohabitation as man and wife, till the period of the husband's death. That was a settlement case, a case therefore where strict proof was required. Lord Ellenborough puts it on the ground of cohabitation as man and wife for a period of eleven years, preceded by a ceremony which might have been, and which the parties understood and intended at the time to be, the ceremony of marriage.] His lordship seems mainly to rely on the fact of the ceremony having been performed in a proper place,—a fact as to which there is no evidence whatever in this case. [WILLES, J.-The judgment of Grose, J., is more general. "The parties," he says, " meant to be married; they went openly to a chapel in the country where they were; they found there a person appearing as a priest of the country, and they were married by him; the service was performed in French, but it was translated to the parties, and they understood it to be the mar*786] riage-ceremony. From these facts the presumption would be, that it was a marriage according to the law of that country, by a priest of that country, cognisant of its laws in that respect, and who it must be presumed would celebrate it according to the law of his own country. There is therefore a fair and reasonable presumption that these parties were regularly and legally married according to the law of St. Domingo. I should think the marriage might be sus

(a) And see Piers, app., Piers, resp., 2 House of Lords Cases 331.

(b) A statute of the Isle of Man, of the 27th of May, 1757, intituled "An act to prevent clandestine marriages."