tained according to the law of England; but I have no doubt that it is sustainable by the law of the country where it was celebrated." This is a very strong case.] The place and all the surrounding circumstances there raised a strong presumption that what was done was done legally. But here there was no evidence that the person whose presence was the most essential part of the ceremonial was in attendance. The building was not shown to be registered: and, if so, it would be no part of the duty of the registrar to be there. There is no reason why any presumption should be made in favour of a person who traded as a feme sole, and who merely sets up this unrighteous defence in order to escape a righteous claim.

ERLE, C. J.-I am of opinion that this rule should be discharged. The question for consideration is, whether there was evidence presented to the jury upon the trial which warranted them in coming to the conclusion that the defendant was a married woman. She swore

that she was married to John Lambert in 1844, at a Roman catholic chapel in London, both being of that persuasion; that the ceremony was performed by a priest in the way in which Roman catholic marriages are ordinarily solemnized; that they cohabited for several years, and were still on terms, though the husband was in Australia; and that a certain document which she produced was the [*787 certificate given to her by the priest on that occasion. There was no proof, either upon the face of the certificate or otherwise, that the place where the alleged marriage took place was a place licensed for the celebration of marriages under the statute 6 & 7 W. 4, c. 85, or that the registrar was present. The question is, whether we can presume that all things requisite to the validity of the marriage were done, from the fact that the witness knew the place to be the usual place and the form to be the proper form for Roman catholic marriages. I think we should presume that. Mere cohabitation and reputation are sufficient to prove a marriage, provided nothing to the contrary appears, in the case of persons not being dissenters: and I do not see why the same principle should not govern all marriages. Take the case of what was requisite, under Lord Hardwicke's Act, 26 G. 2, c. 33, to the validity of a marriage,-license or banns: the rule was, to presume a valid marriage from long cohabitation. I do not see why since the 6 & 7 W. 4, c. 85, the same presumption should not be made as before. I think there is strong ground for presuming here that the chapel was licensed and the registrar present, because the statute contains an enactment, s. 39, declaring that any person who should knowingly and wilfully solemnize any marriage in any other place than a registered building, or in the absence of the registrar, should be guilty of felony. It seems to me that the ordinary rule omnia præsumuntur rite esse acta ought to prevail in this case. I think there was abundant evidence to show that this was a valid marriage.

WILLIAMS, J.-I am of the same opinion. I look at this case as raising the question whether, where a marriage has been solemnized by a person and in a place which appear to be duly autho[*788 rized, the presumption that all has been rightly done does arise, until the contrary appears. I think there was ample evidence here to satisfy the jury that the parties were duly married.

WILLES, J.-I am of the same opinion. It appears to me that the 42d section of the 6 & 7 W. 4, c. 85, has a strong bearing upon the question. That provision is in accordance with the rule laid down by Sir William Scott in Dalrymple v. Dalrymple, 2 Hagg. C. C. 54, that the marriage is good, if the parties bonâ fide intended to be and believed themselves to be united by a person having authority to perform the marriage ceremony. It is true that that doctrine is to be taken with reference to the case of The Queen v. Millis, 10 Clark & F. 534, and other cases of that class. But I see no reason to doubt that the 42d section of the 6 & 7 W. 4, c. 85, intended to affirm the judgment of Sir W. Scott, and that the marriage may be a good marriage though all the requisites have not been strictly complied with. The 42d section evidently intended to modify the rule in favour of the validity of the marriage, where the parties bonâ fide intended to be married, and had no reason to doubt that all the requirements of the statute had been duly complied with. There is strong reason for applying to such a case the rule omnia præsumuntur rite esse acta. Such was the opinion of Lord Ellenborough in Rex v. The Inhabitants of Brampton, 10 East 282. That case also establishes that there is an additional presumption for the ceremony of marriage where there has been a long course of cohabitation, viz. the presumption pro matrimonio, for which I cited the case of Piers v. Tuite, 1 Drury & Walsh 279,-it not appearing that the essential preliminaries have *789] not been complied with. I will not refer to any further authorities; for, I conceive enough has already been cited to establish that which is the good sense of the thing, viz. that every presumption should be made in favour of the validity of the marriage, where the parties intended to become and bonâ fide believed that they became man and wife.

KEATING, J.-I am entirely of the same opinion. We have here the fact of a religious ceremony having been performed by a minister of religion in a place of public worship. All that is required to make the marriage a strictly valid marriage, is,-the parties being Roman Catholics, that the place where the ceremony was performed was duly licensed under the statute for the celebration of marriages, and that the registrar was present. The question is whether we may presume the existence of those two requisites. I think we may, consistently with all the doctrine of legal presumptions, fairly presume that the ceremony was properly and legally performed, seeing that if it were otherwise the officiating clergyman would have been guilty of felony. Rule discharged.

*790]

*BLACKMORE and Wife v. HIGGS. Feb. 1.

To an action for breaking and entering the plaintiff's shop and dwelling-house, with a count for assaulting the plaintiff's wife, the defendant pleaded not guilty and several pleas of justification to each count, and the plaintiff, as to the assault upon his wife, new-assigned excess. At the trial, the plaintiff obtained a verdict for 408. for the excess in the assault. The judge made an order for costs under the 15 & 16 Vict. c. 54, s. 4, on the ground that the cause of action was one for which a plaint could not have been entered in the county court, the title to land coming in question. The court set aside the order.

THIS was an action for breaking and entering a shop and dwelling

house of the plaintiff, situate No. 12, River Terrace, York Road, King's Cross, and converting the plaintiff's goods, with a count for assaulting the plaintiff's wife.

The defendant pleaded,-first, not guilty,-secondly, that the shop and dwelling-house were not the plaintiff's, as alleged,-thirdly, that the goods were not the plaintiff's, as alleged,-fourthly, leave and license,-fifthly, that the defendant was lawfully possessed of a shop and dwelling-house, and because the said goods were unlawfully therein doing damage to the defendant there, he necessarily did what was complained of in removing the same from the said shop and dwelling-house,-sixthly, as to assaulting and beating the wife, that the defendant was lawfully possessed of a dwelling-house, and because the said Grace (the wife) was unlawfully therein, and refused to leave when requested by the defendant so to do, he gently laid his hands upon her in order to remove her therefrom, which were the supposed trespasses, &c.,-seventhly, to the second count, that the said Grace first assaulted the defendant, and he thereupon necessarily committed the alleged assault in his own defence.

The plaintiffs joined issue on all the pleas; and, as to the fifth, sixth, and seventh pleas, they new-assigned, that they sued not only for the trespasses therein admitted, but for trespasses committed by the defendant in excess of the alleged rights.

The defendant pleaded not guilty to the new-assignment. Issue thereon.

At the trial before Byles, J., at the sittings at *Westmin[*791 ster after last Trinity Term, the jury returned a verdict for the plaintiffs for 40s. for excess in the assault upon the female plaintiff; and all the other issues were found for the defendant: and, on the 28th of August last, an order was made by Byles, J., at Chambers, allowing the plaintiffs costs under the 13 & 14 Vict. c. 61, s. 12, and 15 & 16 Vict. c. 54, s. 4, on the ground that the cause of action was one for which a plaint could not have been entered in a county court. Beasley, on a former day in this term, (a) obtained a rule nisi to rescind this order, on the ground that the assault on the wife was a matter which might have been tried in the county court, and that the plaintiff could not by joining with it a count which he could not sus tain oust the jurisdiction of the inferior court. He referred to Lloyd v. Jones, 6 C. B. 81 (E. C. L. R. vol. 60), where it was held, that, to oust the jurisdiction of the county court, by reason of the proviso in the 9 & 10 Vict. c. 95, s. 58, that the court shall not have cognisance of any action "in which the title to any corporeal or incorporeal hereditaments shall be in question," the claim set up must be a bonâ fide one, and the right one that can exist in point of law. He also referred to Hatch v. Lewis, 7 Hurlst. & N. 367.

Digby Seymour, Q. C., and Laxton, now showed cause.-The assault of which the jury by their verdict affirmed that the defendant was guilty, was committed in defence of a wrongful claim to the possession of the premises. It is clear, therefore, that the title to land must come in question, and consequently that the county court had no jurisdiction. In Chew v. Holroyd, 8 Exch. 249, on

[*792

(a) The delay in moving arose from the death of the defendant, and the inability of his widow to obtain letters of administration earlier.

the trial of a plaint for a trespass committed by breaking the doors of certain rooms in a cottage of the plaintiff, the plaintiff's case was, that he had let the defendant a portion only of the cottage, and had reserved to himself the rooms in which the trespass was committed: the defendant's case was, that the plaintiff had let him the whole of the cottage; and the Court of Exchequer held that title to a corporeal hereditament was in dispute, within the 58th section of the 9 & 10 Vict. c. 95, and that the county court had no jurisdiction over the plaint.

Beasley, in support of his rule.-The test as to whether or not the title to land comes in question, is, the result of the trial. It is plain from the record, that the only cause of action which the plaintiffs could have here might have been tried in the county court. If so, the authorities are clear that the plaintiffs are not entitled to costs.

ERLE, C. J.-I am of opinion that the rule in this case should be made absolute. The plaintiffs brought their action for the breaking and entering of their dwelling-house, and the conversion, &c., of their goods, and also for an assault on the female plaintiff. The defendant pleads several pleas denying the title of the husband, and justifying the assault on the wife. There is a new-assignment that the assault was in excess of the alleged right of the defendant: and upon this latter, viz., for the excess, the jury give the plaintiffs a verdict for 40s., all the rest being found for the defendant. The plaintiffs having thus recovered only 40s., the case is primâ facie within the jurisdiction of the county court, and the plaintiffs would not be entitled to costs unless the judge who presided at the trial *gave one of *793] the certificates mentioned in the 13 & 14 Vict. c. 61, s. 12. The learned judge has certified that it appeared to him at the trial that the cause of action was one for which a plaint could not have been entered in the county court, inasmuch as the title to land came in question. Looking at this record, it appears to me that that certificate is not in accordance with the result and the findings of the jury. The plaintiff's bring their action for three causes,-a trespass to their premises, conversion of their goods, and an assault on the wife. It is only in respect of the excess in the latter that the plaintiffs obtain a verdict for 40s. The plaintiffs' true cause of action therefore was for the excess in the assault upon the wife: and for that the action clearly might have been brought in the county court. The plaintiff's claim costs on the ground that, taking the whole of the record together, the title to land appears to have come in question. But I take the rule to be this, that, where there are two causes of action disclosed by the declaration, and a distinct line of pleading applicable to each, the two are for the purposes of costs to be treated as being as distinct as if there had been two separate actions. I think the plaintiffs are to be in no better position by joining the whole in one action than they would have been in if they had brought two.

WILLIAMS, J.-I am of the same opinion. If the plaintiff had succeeded in establishing his title to the premises, the order of my Brother Byles would have been properly made. But, as he failed, I agree with my Lord that he cannot better his title to costs because in an action which might have been tried in the county court he has joined an unfounded claim of title to land.

[*794

WILLES, J.-I am of the same opinion. When the legislature speaks of a cause of action in these acts, it means a cause of action in respect of which the plaintiff is entitled to costs, viz., in which he has recovered a sum exceeding 207. in an action of contract, and 57. in an action of tort. Here the plaintiffs have recovered 40s. only for the excess in the assault upon the wife. The good sense of the thing is consistent with the language of the statute.

KEATING, J.-I am of the same opinion. The only cause of action which the plaintiffs had was the excessive and inexcusable assault on the wife. That was not less the cause of action, because the plaintiffs have thought fit to add an unfounded claim for damages in respect of something else.

WILLES, J.-There was a case of Smith v. Harnor, 3 C. B. N. S. 829 (E. C. L. R. vol. 91), which is precisely in point. There A. sued B. for an assault, with a count for slander, and obtained a verdict on the first count for 57., but failed to establish a cause of action in respect of the second count; and it was held that the plaintiff was entitled to no costs. My Brother Williams there says, "This is not the less an action of trespass, in which the plaintiff has failed to obtain damages exceeding 57., because an unfounded charge of slander is attached to it." Rule absolute..

*COLE v. MEEK. Jan. 14.

[*795

By a charter-party the charterer bound himself to load at Havana "a full and complete cargo of sugar and other lawful produce." Certain goods were enumerated, including timber, and certain rates of freight were mentioned; and the charter-party proceeded, "other goods, if any should be shipped, to pay in proportion to the foregoing rates, except what might be shipped for broken stowage, which should pay us customary" (half freight). A full cargo of mahogany logs was shipped, but no broken stowage was supplied to fill up the interstices, and the vessel was in consequence obliged to retain thirty tons of ballast:-Held, that, it being impossible to ship a "full and complete cargo," without broken stowage, the charterer was bound by his contract to furnish it.

THIS was an action brought by the plaintiff, a shipowner at Bristol, to recover a balance of freight and demurrage due upon a charterparty, and also damages for not having shipped a full and complete cargo.

The first count of the declaration stated that the plaintiff and the defendant agreed by charter-party that the plaintiff's ship, called the Ina, then in Liverpool, being staunch, strong, and in every respect fitted for the voyage, should immediately be made ready in any dock * the defendant might name in the river Mersey, and there load a full and complete cargo of coals and other lawful merchandise, the vessel. being guaranteed to carry at least 375 tons of dead weight, if required; and, being so loaded and despatched, should immediately proceed to Havana, and discharge the same agreeably to bills of lading, after which she should again be made ready, and there, and [or] at one other usual loading place in the island as ordered, load from the agents of the defendant a full and complete cargo of sugar and other lawful produce, which the defendant thereby bound himself to ship, not exceeding what the vessel could reasonably stow and C. B. N. S., VOL. XV.-30