description of the party was "Sarah Burt, spinster;"
in the affidavit to lead the license, she was de-
signated as "Elizabeth Melville, widow;" here
then was not only a complete substitution of one
name for another, but a false description of state
and condition; for what particular purpose she
had assumed the latter name and description, was
not shewn, but as Mr. Cope did not suppose that
he was marrying Sarah Burt when he married
Elizabeth Melville, the marriage was held not to
be invalid. Now, in point of fact, the only fraud
that can be relied on in this case, consists in the
substitution of the name of "Terry" for that of
"Jones." I can find no fraud in the mode of ob-
taining the license; I admit there might be a fraud
in this respect, to wit, were a person of bad character
to assume the name of a person of good character,
in order to procure or contrive a marriage. The
authorities referred to, with the exception of Cope
v. Burt and Cockburn v. Garnault, do not seem
to have any direct bearing on this case.
A case
has been cited from a Court of law (a), in which
the learned Judges determined that where a name
is expressly assumed for the purpose of marriage,
it would invalidate the marriage, in other words,
it would not be a valid marriage in regard to
the decision of a question of parochial settle-
ment. What I want to discover in this case, is,
what was the particular fraud practised in obtain-
ing the license? There may have been fraud in
procuring the marriage, but where is the fraud in
obtaining the license? There is no impediment to

(a) Rex v. Burton on Trent, 3 M. & S. 537.

1842.

Nov. 2nd.

CLOWES

against

CLOWES.

1842.

Nov. 2nd.

CLOWES against CLOWES.

the marriage in point of consanguinity; I really cannot understand, when it is said, this is a void marriage, what is there to render it void? What is there to vitiate the license? there is no substitution of one person for another; both parties were able and willing, and meant to contract this marriage; the whole of the contents of the libel shew that neither of the two persons was deceived by the substitution of one name for another. There was no error de persona, although there may have been error nominis.

But in point of fact, in all these cases the distinction has been established between a marriage by banns and a marriage by license. The publication of banns is a notice to all the world that the two parties intend to contract a marriage, and the words of the Act of Parliament are 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 license is a dispensation from the necessity of publication of banns, and is granted on such terms and conditions as the ordinary is willing to accept ; in this case, the terms are contained in the affidavit to lead the license, and on the oath of the party, the license was granted and the parties married ;a marriage so solemnized is not to be set aside on slight grounds. 4 The present Marriage Act is the 4th Geo. 4, c. 76, it was passed to amend a former Act, by which great injury was found to be done to innocent parties; for a marriage might be set aside in consequence of a fraud committed by one of the contracting parties. Under the present Act both

parties must be cognizant of the fraud, it has been so decided in a Court of law (a). in Dormer v. Williams (b). The Judge of the Consistory Court held, that in order to render a marriage by license void, both parties must knowingly and willingly acquiesce in the fraud. With regard to banns, the words are, "If any persons shall knowingly and wilfully intermarry," and it has been decided that the word " persons is to be taken in the plural sense, and I see no reason why the same construction should not apply in the case of a license.

I see no circumstances to distinguish this case from Cope v. Burt and Cockburn v. Garnault. I am of opinion, that the circumstances stated in the libel are not sufficient to render this marriage null and void; if all the facts alleged were fully proved, the marriage would still remain good and valid. I therefore reject this libel.

The Judge rejected the libel, and assigned to hear on taxation of costs on the second session. The

assignation was continued to the first session. On the fourth session the proctor for Mrs. Clowes prayed leave to bring in a libel-on the byeday this prayer was repeated. The proctor for Mr. Clowes objected thereto, and prayed to be heard in opposition, and he further prayed that the proctor for Mrs. Clowes might bring in his bill of costs; he subsequently withdrew his prayer, and declined to appear further in the cause. The Judge gave leave to bring in the

(a) See Rex v. Inhts. of Wroxton, 4 B. & Adol. 646.

(b) 1 Curt. 870.

VOL. III.

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CLOWES

against CLOWES.

1842.

Nov. 2nd.

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CLOWES.

1843.

Jan. 20th.

A libel, by a husband, in a suit of nullity of marriage having been rejected, Held, that it

libel, and assigned to hear on admission thereof on the first session of the next term. On the first session of Hilary Term the costs were paid to the proctor for the wife, who acknowledged the receipt thereof in Court.

On the same day, the admission of the asserted libel was moved by Addams and Jenner; they contended, that it was competent to the wife to engraft a suit for restitution of conjugal rights on a suit of nullity of marriage. The factum of marriage had been admitted, and although the husband disputed its validity, the Court, by rejecting his plea, completely affirmed that marriage. They referred to Wescombe v. Dods (a), Best v. Best (b), Hawke v. Corri (c), D'Aguilar v. D'Aguilar (d).

No counsel or proctor appeared for the husband.

JUDGMENT.

SIR HERBERT JENNER FUST.

This was originally a suit of nullity of marriage, by reason of fraud practised in obtaining the license. It was promoted by Mr. E. Clowes against Harriet was competent Jones, spinster, a minor, falsely calling herself that suit, with- Clowes. In that suit, which came to this Court out taking out

to the wife, in

to sue the hus

band for resti

tution of conjugal rights.

a cross-citation by letters of request from the Commissary of Winchester, a citation issued, an appearance was given by the party cited by her guardian, a libel was given in, stating the circumstances under which the marriage was celebrated, and the grounds of fraud in obtaining the marriage license, on

which it was contended, that the marriage was rendered null and void. The admissibility of the libel was debated, and the Court was of opinion, that the libel was not admissible, inasmuch, as that if all the facts stated in it were substantiated at the hearing, the Court would not be enabled to pronounce for the nullity of the marriage; the Court therefore rejected the libel, and condemned Mr. Clowes in the costs. Those costs were not taxed or paid on the bye-day in the last Term, on which day, the proctor on behalf of Mrs. Clowes asserted an allegation, as in the cause, for obtaining a restitution of conjugal rights. The proctor for Mr. Clowes at first prayed to be heard on his petition against this allegation being brought in, but afterwards he retracted his prayer and declined to appear; an allegation was given in, and the Court heard counsel in support of it, but no party being before the Court to oppose it, the Court was bound to look into the plea, coming, as the cause did, by letters of request, from another Court, and to consider, whether, in a suit of nullity of marriage, it could receive a libel for the restitution of conjugal rights. The Court has not been able to find any case precisely in point, except the case cited by counsel, Wescombe v. Dods (a), a suit of jactitation of marriage, in which the party cited alleged herself to be the wife of the party citing her; on the statement of that case it appears, that the wife pleaded a marriage, and obtained a sentence in favour of the marriage. In Hawke v. Corri (b), Lord Stowell stated (p. 285), that in a suit of jactita

1843.

Jan. 20th.

CLOWES against

CLOWES.