Vict. c. 88; in Moscow, Tahiti, and Ningpo by the 21 & 22 Vict. c. 46; at Lisbon, by the 22 & 23 Vict. c. 64; and in the Ionian Islands by the 23 & 24 Vict. c. 86; and provision is made for the transmission to the registrar general of certificates of these marriages, &c.

The 58 Geo. 4, c. 84, renders marriages solemnized in India by ministers of the Church of Scotland before the 31st December, 1818, valid; and the 14 & 15 Vict. c. 40, regulates marriages in India, after the 1st January, 1852, or such other day as the Governor General shall direct, where one or both of the parties is or are a person or persons professing the Christian religion.

Marriages in the colony and dependencies of Newfoundland are especially regulated by the statute 5 Geo. 4, c. 68, which repeals a former statute, 57 Geo. 3, C. 51, upon the same subject.

In an action for criminal conversation the marriage of the plaintiff and his wife, who were both Quakers, had been performed according to the ceremonies of the sect, by a public declaration of the parties at a monthly meeting of the society, of their becoming man and wife, and a certificate to that effect entered in a register, signed by the parties and by several subscribing witnesses. The register was produced and proved by one of the witnesses, and a member of the society proved the forms observed to be those usually considered as necessary to marriage among Quakers.(8)

It seems that in order to prove a Jewish marriage, the marriage contract must be proved. Where two witnesses were called, who swore that they were present in the Jewish synagogue when a marriage took place, it was insisted that what took place in the synagogue was merely a ratification of a previous written contract, and as that contract was essential to the validity of the marriage it ought to be produced and proved; and the contract, in the Hebrew tongue, was accordingly *316] put in and proved.(t) So a *Jewish divorce can only be proved by producing the document of divorce delivered by the husband to the wife.(u) The law of France as to marriage may be proved by the production of a book, purporting to contain the code of France, and proved by oral testimony of a witness acquainted with the law of France, to contain the law of France. The articles of the law of France, which prescribe the forms essential to marriage, do not declare a marriage void for nonobservance of those forms, but parol evidence is admissible to show that, by the law of France, a marriage in fact, without observance of the requisites prescribed by the articles, is void. (v)

It was formerly held that if an idiot contracted matrimony, it was good and should bind him: but modern resolutions appear to have proceeded upon the more reasonable doctrine of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, is absolutely void. And as it might be difficult to prove the exact state of the mind of the party at the actual celebration of the nuptials, the 15 Geo. 2, c. 30, has provided that if persons found lunatics under a commission, or committed to the care of trustees by any Act of Parliament, marry before they are declared of sound mind by the Lord Chancellor, or the majority of such trustees, the marriage shall be totally void.(w)

Upon indictments for bigamy it is not sufficient to prove a marriage by acknowledgment, cohabitation, and reputation; but it is necessary to prove what the courts call a marriage in fact, that is an actual marriage.(x) Therefore either

(8) Deane v. Thomas, M. & M. 361. See the 11 & 12 Vict. c. 58, and 23 & 24 Vict. c. 18,ante, p. 284, note (c).

(t) Horn v. Noel, 1 Camp. 61.

(u) Moss v. Smith,

Man. & Gr. 228 (39 E. C. L. R.), and, qu., whether such a divorce would be any defence to an indictment for bigamy. See the learned note of the reporters, Ibid. See the Acts cited in note (s).

(v) Lacon v. Higgins, 3 Stark. N. P. 178 (14 E. C. L. R.).

(w) 1 Blac. Com. 438, 432.

(x) Catherwood v. Caslon, 13 M. & W. 261.

1 The general current of American decisions is in accord with the text: Gahagas v. People, 1 Parker C. R. 378; State v. Timmins, 4 Minn. 325; Hayes v. People, 25 N. Y. 390. There are some cases, however, which hold that the first marriage may be proved by ad

some person present at the marriage must be called, or the original register, or an examined copy of it, be produced.(y) The 4 Geo. 4, c. 76, s. 28, requires that marriages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same, and the 6 & 7 Will. 4, c. 86, s. 31, that it shall be registered in duplicate according to the form in the schedule, and that each entry shall be signed by the minister and parties married, and attested by two witnesses. But, upon a provision nearly similar in the former Marriage Act, it was held not to be necessary to call one of the subscribing witnesses to the register in order to prove the identity of the persons married; but that the register, or the copy of it, being produced, any evidence which satisfied the jury as to the identity of the parties was sufficient: as if their handwriting to the register were proved; or that bell-ringers were paid by them for ringing for the wedding, or the like.(z) And it was held that if the marriage were proved by a person present at it, it was not necessary to prove the registration, or license, or banns. The prisoner was indicted for marrying Ann Epton, whilst Jane his former wife, was living; each marriage was proved by a witness who was present at the ceremony; and it appeared that at the first marriage the prisoner went by the nome of Allison, and at the second by the name of Wilkinson. Chambre, J., *doubted whether the evidence was sufficient without proof of the registration of either marriage, or of any license or publication of banns; but the [*317 judges held that it was.(a)

Upon an indictment for bigamy it was proved on the part of the prisoner that her first husband, before he married her, had been in Canada, and that he was absent for about two years, and when he returned he said he had brought his wife with him, and a lady accompanied him, whom he treated as his wife, and every one else regarded her in that capacity; she had been heard of as being alive after the prisoner's first marriage; and thereupon Crompton, J., interposed, and said that there was evidence of a prior marriage, and, although there might be some technical difficulty in proving the marriage in Canada, still if there was reasonable doubt of the fact, the prisoner ought to be acquitted, and the jury said it was unnecessary to hear any more evidence.(b)

The second wife must be properly described in the indictment, and if she be described as a widow, when, in fact, she was not so, and had never been represented or reputed to be so, the variance will be fatal. The prisoner was indicted for marrying E. Chant, widow, E. Rowe, his wife, being then alive; it appeared that E. Chant was, in fact and by reputation, a single woman; it was objected that she was improperly described in the indictment as a widow, and upon a case reserved the judges were unanimously of opinion that the misdescription was fatal, though it was not necessary to have stated more than the name of the party.(c) So

(y) Morris v. Miller, 4 Burr. 2057; Birt. v. Barlow, Dougl. 162.

(2) 1 East P. C. c. 12, s. 11, p. 472; Bull, N. P. 27.

(a) Rex v. Allison, MS., Bayley, J., and R. & R. 109.

(b) Reg. v. Wilson, 3 F. & F. 119. See Hamblin v. Shelton, 3 F. & F. 133, and Doe d. Fleming v. Fleming, 4 Bing. R. 266, for similar evidence in civil cases.

(c) Rex v. Deeley, R. & M. C. C. R. 303; s. c. 4 C. & P. 579. But such a variance may be amended under the 14 & 15 Vict. c. 100, s. 1.

missions-reputation and cohabitation: Comm. v. Murtagh, 1 Ashm. 272; State v. Hilton, 3 Rich. 434; State v. Seals, 16 Ind. 352; Langtry v. State, 30 Ala. 536; Cook v. State, 11 Geo. 53. See also on this point Gaines v. Hennen, 24 How. (S. C.) 553; Carmichael v. State, 12 Ohio (N. S.) 553; McReynolds v. State, 5 Cald. 18; Stangleer v. State, 17 Ohio St. 453; Oneale v. Comm., 17 Gratt. 582; Ham's case, 11 Maine 391; Robinson v. Comm., 6 Bush 309; King v. State, 40 Geo. 244; Williams v. State, 44 Ala. 24; Bird v. State, 21 Gratt. 800; People v. Humphry, 7 Johns. 314.

At common law, no formal ceremony is requisite to give validity to a marriage, but a contract between the parties per verba de presenti is enough: Star et al. v. Peck, 1 Hill 270. So semble of such a contract, though executory in form, if followed by cohabitation: for the acts of the parties may be taken as giving a construction to their words, and rendering them personally operative: Ibid.; Hantz v. Sealy, 6 Binn. 405; Jackson v. Winne, 7 Wend. 47. When the first marriage was celebrated abroad, the prosecution must show not only a marriage in fact, but a marriage valid by the foreign law: People v. Lambert, 5 Mich. 349.

where, on an indictment for bigamy describing the first wife as Ann Gooding, an examined copy of the certificate(d) of the marriage of the prisoner and Sarah Ann Gooding was put in, and there was no evidence to explain the difference in the names: Maule, J., directed an acquittal.(e)

The 6 & 7 Will. 4, c. 86 (an Act for registering births, marriages, and deaths in England), by sec. 38, enacts that all certified copies of entries purporting to be sealed or stamped with the seal of the register-office, shall be received as evidence of the birth, death, or marriage to which the same relates, without any further or other proof of such entry; and no certified copy purporting to be given in the said office shall be of any force or effect, which is not sealed or stamped as aforesaid.(ƒ) How far the acknowledgment of the defendant upon the subject of his marriage is sufficient evidence of the fact may admit of some doubt. In one case it was held, that proof of the prisoner's cohabiting with and acknowledging himself married to a former wife then living, such assertion being backed by his producing to the witness a copy of a proceeding in a Scotch court against him and his

*318] wife for having contracted the marriage improperly (the marriage, how

ever, being still good according to that law) was sufficient evidence of the first marriage. The point being reserved, all the judges who were present held the conviction proper. Two of them observed that this did not rest upon cohabitation and bare acknowledgment, for the defendant had backed his assertion by the production of the copy of the proceeding; but some of the judges thought that the acknowledg ment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment.(g) So where it was proved that the prisoner being charged with bigamy made a statement before a justice, in which he expressly declared that he had married his first wife, who was then present; Erskine, J., left the case to the jury, observing, that this was not an incautious statement made without due attention, but that the prisoner's mind was directed to the very point by the charge made against him.(h)

So where upon an indictment for bigamy it appeared that the prisoner returned from America with a woman described in the indictment as Mary Carlisle, with whom he lived as his wife for some years afterwards; and that soon after his return he told her sister that he had been married to Mary Carlisle at New York by a Presbyterian minister, and he subsequently caused the bellman at Oldham to give public notice, which he did, that no one was to give credit to "Mary, the wife of John Newton;" and some time afterwards Mary Newton, describing herself as his wife, complained to a magistrate of his having ill-treated her, and the prisoner attended before the magistrate, and did not deny the alleged marriage, but said he

(d) Quære, Register.

(e) Reg. v. Gooding, C. & M. 297. Maule, J., thought that "evidence might perhaps be offered to explain the circumstance of this difference in the name of the prisoner's first wife, as she is described in the indictment, and as described in the marriage certificate; and even in the absence of such evidence, proof might be supplied that the woman was known by both names."

(f) See also the 3 & 4 Vict. c. 92.

(9) Truman's case, Nottingham Spr. Assizes 1795, decided upon by the judges in East T. 1795, MS. Jud.; 1 East P. C. c. 12, s. 10, pp. 470, 471; where see some remarks as to the admission of a bare acknowledgment in evidence in a case of this nature. That it may be difficult to say that it is not evidence to go to a jury; but that it must be admit ted that it may under circumstances be entitled to little or no weight; for such acknowledgments made without consideration of the consequences, and palpably for other purposes at the time, are scarcely deserving of that name in the sense in which acknowledgments are received as evidence; more especially if made before the second marriage, or upon occasions when in truth they cannot be said to be to the party's own prejudice, nor so conceived by him at the time.

(h) Rex v. Dennis Upton, Gloucester Spr. Ass. 1839. It seems quite clear that this is the proper course on the general principle that everything which a prisoner says against himself is proper for the consideration of the jury, who are to ascribe such weight to it as it may appear to them to deserve. C. S. G. In Dickinson v. Coward, 1 B. & A. 679, Lord Ellenborough, C. J., said, "I take it to be quite clear that any recognition of a person standing in a given relation to others is primâ facie evidence against the person making such recognition that such relation exists. If, indeed, it were made in a loose conversation, I should consider the evidence but very slight." See also 2 Stark. Evid. 1, 2d edit.

could no longer live with her on account of her jealousy, and consented to allow her eight shillings a week; Wightman, J., after consulting Cresswell, J., told the jury that the question was, whether they were satisfied by the statements made by the prisoner on the various occasions referred to that he had been married to Mary Carlisle in America, and that such marriage was a valid one according to the law of that country. The jury were to say whether, as against the prisoner, it might not be taken, on the faith of his own repeated declarations, that the marriage had been a valid one according to the law in force at New York. That declarations lightly or hastily made were entitled to very little weight in such a case; [*319 but what the prisoner said deliberately, and when it was obviously his interest to deny the marriage, if he did not know it to be a valid one, was undoubtedly evidence entitled to the very serious consideration of the jury.(i)

But where, on an indictment for bigamy, it appeared that the prisoner went to a policeman, stating that he wanted to give himself up on a charge of felony, and that he had married two wives, both of whom were then with him, and that he could have no peace or quiet with them, so he went to the police office as a refuge; he said that he had been married to the first wife thirty-two years ago by the parish priest of Leitrim, in the county of Galway, and had subsequently, in 1837, married Catherine O'Bryan, at the parish of Ashton-upon-Lyne; and after he was in custody he signed a written statement in which he asserted the same facts: Pollock, C. B., said there must be some evidence of the first marriage beyond the mere admission of the prisoner, who might for a purpose have stated an untruth. There was some evidence of the first marriage, but it was not enough.(k)

After proof of the first marriage the second wife may be a witness; but it is clear that the first and true wife cannot be admitted to give evidence against her husband. (7)

The prisoner was indicted for having married A. Walker, his first wife, A. Armstrong, being alive: the prisoner's first marriage with A. Armstrong was proved. The prisoner's defence was, that the first marriage was void, as A. Armstrong had a husband living at the time, and he proposed to call A. Armstrong to prove that fact; it was objected to her competency, that the fact of her marriage with the prisoner having been proved, she must be taken to be his lawful wife. Alderson, B., was at first inclined to think that she might be examined simply to the fact of her being the wife or not of the prisoner; but after conferring with Williams, J., he determined not to receive her evidence, but to reserve the point.(m) But where a woman, called as a witness against a *prisoner, proved on the voire dire that she married the prisoner in 1849, Erle, J., held that she

[*320

(1) Reg. v. Newton, 2 M. & Rob. 503; s. c. as Reg. v. Simmonsto, 1 C. & K. 164 (47 E. C. L. R.). According to the latter report the difficulty felt by Wightman, J., was that it was not a simple admission of a marriage, but of a marriage by a Presbyterian minister in New York, which would not have been a good marriage in England before the marriage Act; and there was no evidence that it was a good marriage by the law of New York. (k) Reg. v. Flaherty, 2 C. & K. 782 (61 E. C. L. R.).

(7) 1 Hale 693; 1 East P. C. c. 12, s. 9, p. 469, and 1 Hawk. c. 42, s. 8, where it is said that this rule has been so strictly taken that even an affidavit to postpone the trial made by the first wife has been rejected, and Old Bailey, Feb. Sess. 1786, is cited.

(m) Peat's case, 2 Lewin 288. The prisoner was acquitted. The first impression of the very learned Baron seems to have been the correct one. The only ground on which the witness could be rejected was, that she was the lawful wife of the prisoner; for "the general rule does not extend to a wife de facto, but not de jure:" 2 Stark. Evid. 402, (2d edit.). In Wells v. Fletcher, 5 C. & P. 12 (24 E. C. L. R.); s. c., 1 M. & Rob. 99, a woman called for the defendant, on examination on the voire dire, said she had been married to the plaintiff, and on re-examination that she was married to another person previously; but, not seeing him for thirty years, she thought he was dead, and therefore married the plaintiff, but afterwards found that her first husband was living; and Patteson, J., held that the witness was competent, as the second marriage was a nullity. If Peat's case had been an indictment for larceny, and the witness called for the prisoner had proved her marriage to him on the voire dire, Wells v. Fletcher shows that she might have been rendered competent by proving her previous marriage, and it is difficult to see how proof by other evidence that she had married the prisoner, whether such evidence were given before or after she was called, could render her incompetent; for her evidence would not be inconsistent with such evidence, as it would admit the marriage with the prisoner,

might also prove on the voire dire that she had a sister seven years older than herself, and that they had been brought up together with their parents, and that she always believed that they were sisters, and that her sister had married the prisoner in 1846, and died in 1848; for if a person is questioned on the voire dire with the view to raise an objection to her competency, she may also be examined to remove that prima facie ground of objection. (n)

There is no presumption of law as to the death of a party, without reference to the accompanying circumstance, such, for instance, as the age or the health of the party, and the only question is, what inference may be fairly drawn from the evidence. The presumption of innocence cannot shut out the presumption arising from the fact, that the party was alive within a short time of the second marriage. A pauper married E. Meadows, in 1821, who afterwards went abroad, and several letters had been received from her dated from Van Dieman's Land, and one in her handwriting, dated Hobart Town, 17th March, 1831; the pauper married again on the 11th of April, 1831; it was held that the sessions were warranted in presuming that E. Meadows was alive at the time when the second marriage took place.(0)1

The fact of a letter being in the handwriting of a party and dated at a particular time, is evidence that the party was alive at that time. A daughter wrote to her father in America, and in about two months afterwards received a letter in reply in his handwriting, dated the 1st of May, 1836, it was held that this was evidence that he was then alive.(p)

An indictment for bigamy under the 35 Geo. 3, c. 57, s. 1 (now repealed), alleging that the prisoner married A., and afterwards feloniously married C., "the said A., his former wife, being then alive," sufficiently charged the offence, without also alleging that the prisoner was still married to A., when he married C.; for a divorce from A. was not to be presumed. (q)*

but show that it was void. Rex v. Bathwick, 2 B. & Ad. 639 (22 E. C. L. R.), shows that the competency of the wife does not depend upon the marshalling of the evidence, or the particular stage of the case in which she may be called; if, therefore, in Peat's case the witness had been called before her marriage with the prisoner had been proved, and she would have been competent to prove her previous marriage, it is difficult to see how her marriage with the prisoner having been proved before she was called could render her incompetent, and it certainly would operate hardly on a prisoner, if such were the case, for the prosecutor might in the course of his case prove the marriage of the witness with the prisoner, and the prisoner might have no one except the witness to prove the former marriage. It may be added that Lord Hale, vol. 1, p. 693, says, that a second wife is not so much as a wife de facto. C. S. G.

(n) Reg. v. Young, 5 Cox C. C. 296.

(0) Rex v. Harborne, 2 Ad. & E. 540 (29 E. C. L. R.) ; 4 N. & M. 341. Recognized in Lapsley v. Grierson, 1 H. L. C. 498.

(p) Reed v. Norman, 8 C. & P. 65 (34 E. C. L. R.), Lord Denman, C. J.: His lordship held in the same case, that the post mark was evidence that the letter was put into the post, but that the letter might have been written at any time, and therefore proof was given that it was in reply to the daughter's letter; but this seems to have been unneces sary, for the date is prima facie evidence of the time when an instrument is written: Rex v. Harborne; Sinclair v. Baggaley, 4 M. & W. 313; Hunt v. Massey, 5 B. & Ad. 903; (27 E. C. L. R.); Potez v. Glossop, 2 Exch. R. 191; Anderson v. Weston, 6 B. N. C. 296 (37 E. C. L. R.); Morgan v. Whitmore, 6 Exch. 716.

(9) Murray v. The Queen, 7 Q. B. 700 (53 E. C. L. R.). In Reg. v. Apley, 1 Cox C. C. 71, this point was doubted by Alderson, B.

directly allege the time and Bigamy is not punishable as State, though the husband

1 Gorman v. State, 23 Texas 646. 2 An indictment for bigamy is insufficient that does not place of the first marriage: State v. La Bore, 26 Verm. 765. an offence when the second marriage took place out of the brought his second wife here and lived with her: People v. Mosher, 2 Parker C. R. 195.