« AnteriorContinuar »
but upon the minority ceasing, real rank in life was fully equal the daughter herself did so. to the expectations which Miss
It was contended on her part, Fellowes was justified in forming; that, though the stat. 26 Geo. II. that she appeared herself very commonly called the marriage act, anxious for the alliance, and did not expressly enact that all therefore the Court could not marriages solemnized by publica- now, in a suit brought by her, tion of bans, not in the true names consider these circumstances as of the parties, should be void, yet forming a sufficient case of fraud. several cases had occurred in which to justify it in straining the letthe Court, in construing the two ter of the law upon so slight a clauses, that the minister should variation from the real name as not be obliged to publish the bans that in which the bans had here unless the “ true” names of the been published. parties were delivered to him, and Sir John Nicholl observed, that that all marriages solemnized the ground of nullity in this case without publication of bans or was, that the publication of bans licence from a proper authority and the marriage had both taken should bevoid, had held that by the place in false names. The party "true" names of the parties was bringing the suit was a mimeant the names by which they nor, her father dead, and her are commonly known to the mother withholding her consent. world, in order that all persons This latter fact, however, was not interested might have notice of a ground of nullity in itself, if the what was about to take place; and, publication had been in the true therefore, that a publication inany names; but it was material in a other names, which should prevent case of this description, as tendparties from having that know- ing to shew a fraud against the ledge, was not a publication with- spirit of the act. By the act, and in the meaning of the act; and the decisions which had since tathe Court was, in consequence, ken place under it, it was estabound to enforce the letter of the blished that the publication must law in support of its spirit, it be- be in the true names of the paring described an Act for the ties, which were the names by better preventing Clandestine which they are most usually Marriages ;” and declare any known, and upon the ground marriage had in virtue of such a that all parties whose rights are publication null and void : and affected by what is to take place the circumstances of this case be- may have due notice. The parties ing, as it was contended, such as themselves too have an interest to bring it within the range of in such a publication, as there this doctrine, it was submitted, might be concealed up to that that the marriage in question must time, circumstances which it was be declared void.
of importance that they should It was contended on the other know, and which might have a hand, that setting aside Captain considerable intluence on their Stewart's false representations of determination relative to the marhimself and circumstances, his riage iself. What were the true
names had in some cases been Stewart” the liquor retailer's son made a matter of difficulty. It of Edinburgh, would, on hearing had been suggested whetheror not the publication in the names names acquired by general use of " William Douglas Dundas and reputation could supersede Stewart" suppose it to be the the original ones, but this the saine person? It was not necesCourt was not called upon to de- sary to show actual fraud; it was cide in the present case. It might enough it leading to a possibility also happen that the publication of fraud; non constat that she might take place incorrectly, might not have been prevented either through the inadvertency even by the introduction of the of those who give them in, or those name of “ Douglas” from makwho receive them for that pur- ing inquiries into the truth of pose, but this case was also ex- those representations by which empt from that consideration. The she had been so much deluded, names were evidently assumed for and the discovery of the falthe fraudulent purpose of making sity of which might have altered it appear that the party was related her intentions as to the marriage. to a noble family in the manner Upon the whole of the case, therehe stated. He then recapitulated fore, he was of opinion that the leading circumstances of the this was not a publication withcase, and observed, that there was in the meaning of the act, and not the least reason to suppose that the assumption of name was any such relationship existed as for the fraudulent purpose of pretended. Miss Fellowes cer- inveigling this young lady into a tainly appeared rather captivated marriage effected wholly by fraud. with the prospect of a coronet, and The marringe was therefore proher friend Miss Jones assisted in nounced null and void, with costs obtaining the publication of bans. against the defendant. Whether the publication being in the right names on one of the Stallwood v. Tredger, faisely Sundays, and in the wrong ones called Stallwood.—This was on the others, would be a ground question as to the admissibility of nullity the Court was not called of a libel in a cause of nullity of upon to determine. It would cer- marriage, by reason of the undue tainly regard a suit on such a publication of bans, instituted by ground with great prejudice, but Mr. James Stallwood, of Hamin this case none of the publica- mersmith, Middlesex, against tions had been in the true names. Maria his wife, describing her What, then, could have been the as falsely so called, and by her motive for giving the name of maiden name of Tredger only. “Douglas' before Miss Fellowes, The suit was instituted by and afterwards withdrawing it ? letters of request from the ConDoubtless for the purpose of con- missary Court of Surrey, the firming by so many Scotch names, party proceeded against residing the impression that he was re- at Lambeth, within its jurisdiclated to the noble family of Moray, tion, and the libel now offered as who that knew “ William pleased the clause in the Marriage
Act, 26th Geo. the Second, which of bans was, however, made in directs “ that all bans of ma- the hans book of St. Mary, trimony shall be published in the Newington, which was taken to parish church, or in some public the adjoining church of Saint chapel (in which bans have been George, Southwark, and the bans usually published), belonging to there published on Sundays, the the parish or chapelry wherein 29th of July, and the 5th and the parties dwell; if they reside 12th of August, 1792, the curate in different parishes or chapelries, making a memorandum in the the hans to be published in each; margin to this effect : “ publishand if either of them reside in any ed at Saint George's, Southwark, extra parochial place (having no Newington church being under chwch or chapel in which bans repair." The marriage was 50have been usually published), lemnized on the 13th of August then the bans to be published in following, on the site or ruins the church or chapel of some ad- of Newington church; and the joining parish or chapelry, in question was, whether it was void which case the minister shall cer- under the clause of the act cited, tify the publication in the same as having been solemnized in a manner as if either of the parties different parish to that in which lived in such adjoining parish, the bans were published. and all other the rules of publica- It was contended, in opposition tion prescribed by the Rubrick, to the admissibility of the libe, not altered, shall be duly ob- that this was not a case in the served, and the marriage solem- contemplation of the legislature, nized in one of the churches or or within the mischief intended to chapels where the bans have be remedied by the act, the object been published, and in no other of which was, “ for the better preplace whatsoever.” It then plead- venting clandestine marriages." ed, that in May, June, and There were no words in the act July, 1792, the parties in this imperative upon this point, or any case, intending to be married, and enactment declaring in express being respectively parishioners terms such a marriage null and of St. Mary, Newington, Surrey, void. It would have been a good gave notice in writing to the mini- marriage before the act, and was ster of that parish, of their names, so still, if not rendered null by it. address, &c. in order to have the It might be a marriage in which Lans published. From the 17th the persons celebrating it might of June, 1792, the church of St. be liable to punishment; it might Mary, Newington, was shut up, be contrary to the directions of the and under repair in order to be in statute, but it did not follow that a great part rebuilt and enlarged, the act itself would be null and and was presently afterward un- void. There must be some words roofed, and in great part pulled in the statute specifically declardown, so that from that time un- ing such a marriage null and void; til the 9th of February 1794, no but there were none such applidivine service was performed in cable to the present case ; and it. The entry for the publication what rendered them indispens.
able here was, that the legis- as insufficient, though proved to Jature, when it intended that sustain the suit, and the party certain marriages should be al- be dismissed. together void, had used thc very It was contended in support words which were not applied of the admissibility of the libel, to the present case.
The 3d sec- that the act, besides being directtion of the act declared the pub- tory, was prohibitory: it directlication of bans, where parents ed where a marriage should be gave notice of their dissent, al- had, and prohibited where it together void. The 8th annulled should not, and this prohibition all marriages celebrated in any would be without effect unless place but a church or public the marriage were null and void. chapel, where bans of marriage The sections were in different have been usually published (ex- forms, and it was not necessary cept by special license): and the that all of them should contain the 11th declared the marriages the words “ null and void,' as of minors null and void. But the they would, in construction, folpresent case did not come within low to all the clauses after the the range of either of these enact. first without being so specified, ments. This was still more ma- There were various causes of nul. nifest, for by the 1st section mar- lity, which, though not speciriages by bans were to be celebrat- fied, would equally render a mared in the parish church of the riage void, such as the omission of parties ; and by the 4th, those any material parts of the marby license in the place where riage ceremony, &c. The first part the parties resided. But all this of the 1st clause was not so was directory only. The 8th strong as the latter, which exs section was still necesary to ren- pressly directed that the marder the marriage void, and that riage should be solemnized in section did not apply to the pre- the church or chapel where the sent case. By former statutes, bans had been published, and in 6 and 7 Wm. c. 6. many direc- no other place whatever ; wheretions were given as to the mode as the 10th section declared that of celebrating marriages, and as to bans published, it was not penalties imposed upon the par- necessary to prove a residence, so ties not complying with them, that the parties in this case were but the marriages themselves still perfectly at liberty to have the continued valid. The present act bans published in another church, seemed to proceed upon the same whilst their own was under repair, principle, and, therefore, the but not afterwards to marry in any marriage in question, though other than that where the publiperhaps in some degree irregu- cation had passed. Upon these lar, yet not being dechired null, grounds it appeared that the marwas still to be considered as riage was contrary to the direcvalid, as it would have been, tions, and within the prohibitions had the act never passed. Upon of the act, and, therefore, under these grounds, it was submitted the proper and legal interpretation that the libel must be rejected of that act, null and void.
Sir John Nicholl recapitulated and a marriage in London, might the facts of the case, which, he or might not, if bona fide, be good. observed, were fully and fairly The title of the act was, “ for set forth in the libel. It appeared the better preventing clandestine that two persons, fully and legally marriages." This was its sole competent to contract matrimony, object; but in the present case make the proper application for the marriage was any thing but that purpose in the parish church clandestine; there existed no imwhere they reside. The parish pediment to it; there was nothing church being under repair, and either to evade or avoid ; but all no divine service in consequence was done publicly, and 20 years performed in it, a publication of afterwards a nullity is sought for. bans there was impossible, be- There are probably hundreds of cause the purpose of it could marriages of this description in not be answered. The publi- other parishes, and in different cation was therefore made where parts of the kingdom. The proits object could be effected, viz. ceeding was therefore of a most in the church of an adjoining momentous nature; affecting, in parish, resorted to by the pa- its consequences, the comfort and rishioners of this, but the mar- situation in society of so many inriage took place in the church of dividuals thus circumstanced, and the regular parish, it being in the rights of children emanating à sufficient state of repair for from such a state of things. This that purpose, though insuffici- was a case not within the spirit ent for the bans; and the ques- of the law; no doubt as to its vation was,
whether the mar- lidity had been excited; if there riage was valid or void, a ques- had, an application would probation certainly of great import- bly have been made to the legisance. The case was entirely new; lature, and an Act passed to rethere could be no doubt of the medy it; but it was highly impromarriage being valid before the per to resort to the legislature ex. passing of the Marriage Act, and cept in cases of urgent necessity. the question therefore was, whe- Nothing but the most imperious ther it was made void by that act. demand of judicial interpretation The clause recited did not make could induce the Court to hold it void, in express terms, but only, such a marriage void, and it had as was contended, upon a sound no hesitation in saying, that all construction of it, with reference the legal requisites had been comto the rest of the act. This clause plied with. It had been truly containing no enactment of nul- said, that Courts must only interlity, and there being others which pret, not make laws; and meet, did, the inference was, that no but not create doubts. The law nullity was intended by it; but did not require impossibilities; the Court did not form its opinion and it was therefore not to be preupon that consideration alone. It sumed, that the legislature meant might be weighty, but leading to to introduce provisions leading to difficulties; and it was not neces- such a demand. There could be sary to say whether bans at York no bans in Newington, because