is open to an explanation calculated to show that the party has not forfeited his right by what is neither shewn to be nor to operate as a fraud: if no explanation is offered, the Court may generally conclude against the bona fides of the variation; but if (being offered) it fully and satisfactorily protect the variation from all imputation of fraud, the publication is to be recognized as a due publication; it has all the authority of such, and no evidence of any other fraud connected with the marriage can be made available, except such evidence as might have been pleaded against a marriage in respect of which banns had been published in the most regular manner; the falsehood of the publication is the whole of case; prove that, and everything is proved-without it, nothing, Sullivan v. Sullivan, 2 Hagg Con. 257. Where there had been continued cohabitation, no disparity in the ages and condition of the parties, and, presumptively, consent of parents, the old Court refused to interfere where the alleged defect amounted to mere surplusage; but not where both parties appeared to have an intention to deceive; for it is the very object of banns to put persons interested on their guard, Cope v. Burt, 1 Hagg. Con. 438; Fellowes v. Stewart, 2 Phill. 240. Where a man's real name was Meddowcroft, but the banns were, with the knowledge of both parties, published in the name of Widowcroft for the purpose of concealment, the marriage was declared null, Meadowcroft v. Gregory, 2 Phill. 365. Where the marriage was celebrated by banns under the name of "Robert," as the man's Christian name, his name being really "Robert Charles," and he being almost universally known as "Charles," both parties being aware of the fraud, the marriage was declared void, Brealy v. Read, 1 Curt. 833. So where in the banns the man was described, for the sake of concealment, by consent of both parties, as "John," his real name, and the name whereby he had been known, being "Henry John," and the woman, both before and after the fact of marriage, having constantly addressed him as "Henry," the marriage was declared null, Wiltshire v. Prince, 3 Hagg. 333. See also Pouget v. Tomkins, 1 Phill. 504; Wyatt v. Henry, 1 Hagg. C. 215. Where a woman and a boy about half her age, were married by banns falsely describing the boy's name-she, knowing that he had a father who would disapprove the marriage, gave instructions for the publication of the banns, omitting that part of his baptismal name by which the minor was all but exclusively known, and this for the purpose of fraud, they proceeded to B. to be married, and returned to their usual avocations, she superintending pupils in the school, he continuing his education, the marriage was declared null and void, Tongue v. Allen, 1 Curt. 38. man before in their baptised, Hagg. Con The obj publication it may so 1 name acquire complete obed of the real nan Phill. 132; Fro (notis); R. v. B Burton-upon-Tre Newton, 3 D. & H In the marria which he or she which to publish 1 Phill. 134 (noti also, Mayhew v. primâ facie the mother, Poynt. 3 Where a surna instead of "Dob ground for a dec mislead, Dobbyn Nullity from Licence.-A disti tween a marriag Where a marriage was solemnized between a Name man and an illegitimate girl (born four months bastars before the marriage of her parents, and baptised in their name) in the name in which she was baptised, it was held good, Sullivan v. Sullivan, 1 Hagg. Con. 238. The object of the statutes regulating the publication of banns being to secure publicity, it may so happen that the publication in a name acquired by reputation may be a more complete obedience to the statute than the use of the real name would be, Wilson v. Brockley, 1 Phill. 132; Frankland v. Nicholson, 1 Phill. 147, (notis); R. v. Billinghurst, 3 M. & S, 250; R. v. Burton-upon-Trent, Ib. 537; R. v. St. Faith's Newton, 3 D. & R. 348. In the marriage of a bastard, the name by which he or she is best known, is the name in which to publish the banns Wakefield v. Mackay, 1 Phill. 134 (notis); S. 1 Hagg. Con. 364. See also, Mayhew v. Mayhew, 2 Phill. 12, though prima facie the proper name is that of the mother, Poynt. 36. Where a surname was published as "Dobbyns' instead of "Dobbyn," it was held no sufficient ground for a decree of nullity as not likely to mislead, Dobbyn v. Corneck, 2 Phill. 103. Nullity from Irregularity in Marriages by Licence. A distinction has been established between a marriage by banns and a marriage by K двания case licence. The publication of banns is a notice to all the world that the parties intend to contract matrimony, and the Act of Parliament is direct "that the true Christian and surname of the parties must be used;" and, therefore, if the banns are published in the false names of both parties, the marriage is invalid. A licence is a dispensation from the necessity of the publication of banns; in this case the terms are contained in the affidavit to lead the licence, and in the oath of the party; a marriage so solemnized is not to be set aside on slight grounds. Therefore, where a woman was married by licence under a false name, although she thereby deceived her husband, there being no error de personâ, the marriage was pronounced for, Clowes v. Clowes, 3 Curt. 185; Cope v. Burt, 1 Phill. 224; S. C. 1 Hagg. Con. 434. A marriage by licence "from a person not duly authorized to grant the same" is not void under 4 George 4, c. 76, s. 22, unless both parties are fully aware of the state of the facts, and knowingly and wilfully intermarry by virtue of such licence, Dormer v. Williams, 1 Curt. 870. A marriage by liccnee granted by the Bishop of Winchester's Commissary for Surrey is not valid for a marriage contracted within the diocese of Winchester, but without the jurisdiction of the Commissary for Surrey, Balfour v. Carpenter, 1 Phill. 204. There must in marriages by licence, just as in marriages by banns, be evidence to establish a wilful disregard of the law by both parties, in order to set aside a marriage, Tongue v. Tongue, 1 Moore, P. C. 90; acted upon in Dormer v. Williams, 1 Curt. 874. There may be such fraud in the description of the parties as would vitiate the marriage, but no disparity of fortune or mistake as to quality of the person can do so, Ewing v. Wheatley, 2 Hagg. Con. 175. Semble, if a licence obtained in one name, and for a certain person, were transferred to another, the Court would notice it, Cope v. Burt, 1 Hagg. Con. 439; but if a licence be obtained in a name which has actually been borne, though not the true name, the Court will not interfere; Ib. confirmed, 1 Phill. 224. Other Facts.-A marriage solemnized in pursuance of the provisions of the stat. 4 Geo. IV., c. 91, is valid, though one of the contracting parties by a foreigner, Lloyd v. Petitjean, 2 Curt. 251. By the law of France the marriage of a son without consent under the age of twenty-five years is null and void. Quære, Whether an Englishman under twenty-five but above twentyone years of age contracting a marriage in France, according to French forms, with a French lady |
