3 EVERY one is guilty of the felony called bigamy and liable to seven years' imprisonment who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in Canada, or elsewhere.

4

5

[The expression "being married" means being legally married. The word "marries" means goes through a form of marriage which the law of the place where such form is used recognizes as "binding, whether the parties are by that law competent to contract marriage or not, and although by their fraud the form employed may, apart from the 'bigamy, have been insufficient to constitute a binding marriage.]

Nothing in this Article extends to

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(a.) any second marriage contracted elsewhere than in Canada by any other than a subject of Her Majesty

1 S. D. Art. 257.

2 [2 Hist. Cr. Law, 430.]

3 R. S. C. c. 161, s. 4; [24 & 25 Vict. c. 100, s. 57, as explained by the authorities referred to in the Illustrations. See note to Article 34.

4 See Illustration (2).

5 Burt v. Burt, 29 L. J. (Probate) 133.

• See Illustration (3).

7 See Illustration (4).

8 The Act does extend to a subject of Her Majesty who has contracted a second marriage in Scotland during the lifetime of a wife previously married in Scotland; R. v. Topping, Dear. 647. The same rule would, of course, apply to a bigamous marriage in any foreign country.]

resident in Canada and leaving the same with intent to commit the offence;

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(b.) any person marrying a second time whose husband or wife has been continually absent from such person for the space of seven years then last past, and who was not known by such person to be living within that time;

(c.) any person who, at the time of such second marriage, was divorced from the bond of the first marriage; or

(d.) any person whose former marriage has been declared void by the sentence of any court of competent jurisdiction.

3 A person who marries again during his wife's or her husband's lifetime, but in the honest belief on reasonable grounds that she or he is dead, is not guilty of bigamy.

1[The burden of proving such knowledge is upon the prosecutor when (but not until, R. v. Jones, L. R. 11 Q. B. D. 118) the fact that the parties have been continually absent for seven years has been proved. (R. v. Curgerwen, L. R. 1 C. C. R. 1).] See also R. v. Pierce, 13 0. R. 226; R. v. MeQuiggan, 2 L. C. R. 340; R. v. Fontaine, 15 L. C. J. 141; R. v. Dwyer, 27 L. C. J. 201; R. v. Debay, 3 G. & O. 540; R. v. Smith, 14 U. C. Q. B. 565. Clause (a) is within the legislative authority of the Parliament of Canada; R. v. Brierly, 14 0. R. 525.

2 [A divorce à vinculo matrimonii pronounced by a foreign court between persons who have contracted marriage in England, and who continued to be domiciled in England, on grounds which would not justify such a divorce in England, is not a divorce within the meaning of this clause; R. v. Lolley, R. & R. 237. The decision does not refer to domicil, but this qualification appears from later cases to be required. See Harvey v. Farnie, L. R. 5 P. D. 153, and 6 P. D. 35; also in 8 App. Cas. 43, where R. v. Lolley is explained as above by Lord Selborne at p. 54, and Lord Blackburn at p. 59. Harvey v. Farnie was the converse of R. v. Lolley. It recognized a Scotch divorce as dissolving a marriage between people domiciled in Scotland at the time of the divorce, though the marriage took place in England, the wife being domiciled at the time of the marriage in England. The cases on the effect of foreign judgments on marriage are collected in 2 Sm. L. C. 865-71, 8th Edition.] A decree of divorce obtained in a foreign court may be impeached by extrinsic evidence showing that such court had no such jurisdiction or that such decree was obtained by fraud; R. v. Wright, 1 P. & B. 363.

[A question as to the exact time at which a person can be said to be divorced may arise. In 1 Hale, P. C. 694, a case is mentioned in which a person marrying after sentence of divorce, but pending an appeal, was held to be within a similar proviso in 1 Ja. 1, c. 11. In R. v. Hale, tried at the Leeds summer assizes, 1875, a woman pleaded guilty to a charge of bigamy before Lindley, J., she having married after the degree nisi was pronounced, but before it became absolute, which it afterwards did. The judge's attention, however, was not directed to the passage in Hale.]

3 R. v. Tolson, L. R. 23 Q. B. D. 168. See Article 34, note, p. 40.

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Illustrations.

[(1.) A marries B, a person within the prohibited degrees of affinity, and during B's lifetime marries C. A has not committed bigamy.

(2.) A marries B, and during B's lifetime, goes through a form of marriage with C, a person within the prohibited degrees of affinity. A has committed bigamy.

(3.) 3 A marries B in Ireland, and during B's lifetime goes through a form of marriage with C in Ireland which is invalid, because both A and Care Protestants, and the marriage is performed by a Roman Catholic priest. A commits bigamy.

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(4.) A, married to C, marries B in C's lifetime by banns, B, the (woman) being married, for purposes of concealment, under a false name. A has committed bigamy.

(5.) 5 A, married to B, marries C in B's lifetime, in the colony of Victoria. In order to show that A committed bigamy it must be proved that the form by which he was married was one recognized as a regular form of marriage by the law in force in Victoria.

ARTICLE 331.

PRINCIPALS IN SECOND DEGREE IN BIGAMY.

7 Every one is a principal in the second degree in the crime of bigamy who, being unmarried, knowingly enters into a marriage which renders the other party thereto guilty of bigamy.

9

8 ARTICLE 332.

SOLEMNIZATION OF MARRIAGE WITHOUT LAWFUL

AUTHORITY.

Every one is guilty of a misdemeanor and liable to a fine or to two years' imprisonment or to both who,

1 [R. v. Chadwick, 11 Q. B. 205.

2 R. v. Brawn, 1 C. & K. 144; R. v. Allen, L. R. 1 C. C. R. 367.

3 R. v. Allen, ubi. sup. pp. 373-5, disapproving of R. v. Fanning, 17 Ir. C. L. 289.

R. v. Penson, 5 C. & P. 412. In R. v. Rea, the prisoner at the bigamous marriage (be

fore the registrar) gave a false Christian name, and was held to be rightly convicted.

5 Burt v. Burt, 29 L. J. (Probate) 133.]

6S. D. Art. 258.

[R. v. Brawn & Webb, 1 C. & K. 144.]

8 S. D. Arts. 259, 260.

R. S. C. c. 161, s. 1.

(a.) without lawful authority, the proof of which shall lie on him, solemnizes or pretends to solemnize any marriage; or

(b) procures any person to solemnize any marriage, knowing that such person is not lawfully authorized to solemnize such marriage, or knowingly aids or abets such person in performing such ceremony.

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ARTICLE 333.

FEIGNED MARRIAGES.

Every one who procures a feigned or pretended marriage between himself and any woman, and every one who knowingly aids and assists in procuring such feigned or pretended marriage, is guilty of a misdemeanor and liable to two years' imprisonment.

2

ARTICLE 334.

SOLEMNIZATION OF MARRIAGE CONTRARY TO LAW.

Every one is guilty of a misdemeanor and liable to a fine or to one year's imprisonment who, being lawfully authorized, knowingly and wilfully solemnizes any marriage in violation of the laws of the Province in which the marriage is solemnized.

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3 ARTICLE 335.

ABDUCTION WITH INTENT TO MARRY.

Every one is guilty of felony, and liable to fourteen years' imprisonment, who, with intent to marry or

1 R. S. C. c. 161, s. 2. The prosecution must be commenced within one year after the offence is committed.

2 R. S. C. c. 161, s. 3. The prosecution must be commenced within two years after the offence is committed.

3 S. D. Art. 261.

4 R. S. C. c. 162, s. 42; 24 & 25 Vict. c. 100, s. 53.

carnally know any woman, or with intent to cause any woman to be married or carnally known by any

person,

(a.) from motives of lucre takes away or detains against her will any such woman of any age who has any interest, whether legal or equitable, present or future, absolute, conditional or contingent, in any real or personal estate, or who is a presumptive heiress or co-heiress or presumptive next of kin, or one of the presumptive next of kin to any one having such interest; or

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(b.) fraudulently allures, takes away or detains any such woman, being under the age of twenty-one years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, with intent to marry or carnally know her; or

(c.) 2 by force takes away or detains against her will any woman of any age.

3 Every one convicted of any offence defined in clauses (a.) or (b) is incapable of taking any estate or interest, legal or equitable, in any real or personal property of such woman, or in which she has any interest, or which comes to her as such heiress, co-heiress or next of kin ; and if any such marriage takes place, such property shall, upon such conviction, be settled in such manner as any court of competent jurisdiction, upon any information, at the instance of the Attorney General for the Province in which the property is situate, appoints.

1 [The meaning of the words "possession" and "fraudulently" was considerably discussed in R. v. Burrell, L. & C. 354; but as the court differed on the facts of the case, no definite conclusion was arrived at.] It need not be shewn that the accused knew that the woman was an heiress or had such an interest; R. v. Kaylor, 1 Dor. Q. B. 361. 2 R. S. C. c. 162, s. 43; 24 & 25 Vict. c. 100, s. 54.

3 R. v. Wakefield, 2 Lew. 279; R. v. Perry, 1 Russ. Cr. (4 ed.)