acting in that character, or by the parent or parents on either ment can be side. No witnesses appeared on procuring the licence from the gained under it. surrogate, deposing to the consent of the parents or guardian on either side having been obtained, or that the parties to be married were of the age of consent; but the person who applied for a licence, being the said R. T., swore that the parties were both of age. The question for the opinion of the Court turns on the validity of this marriage. LORD MANSFIELD C. J. Before this act of parliament passed, by the laws then in being, if a man and woman made a contract in private per verba de præsenti, and kept it a secret, and afterwards there was a public marriage solemnized by either of them, and issue born of that marriage, nevertheless the private contract took place of the subsequent marriage, because the canon law compelled a strict observance of these contracts, and decreed them to be solemnized in the face of the church. Therefore clandestine marriages were so far to be sure practicable, but they were contrary to law. The law of England executed by the ecclesiastical courts prohibited it, and made it unlawful to marry any person in private; so that no clergyman of reputation dared to marry any persons without either licence or banns. If they married with licence, there was an oath that the parties were of age, or, if under age, that they had the consent of parents or guardians. If by banns, it was no objection to the marriage that the parties were under age. All other marriages were illegal, but not being vacated, they still went on. Therefore this act was passed in order to prevent these illegal practices, which were become so very enormous, that places were set apart in the Fleet and other prisons for the purpose of celebrating clandestine marriages. The Court of Chancery, on the ground of its illegality, made it a contempt of the Court to marry one of its wards in this manner. They committed the offenders to prison; but that mode of punishment was found ridiculous and ineffectual. Then this act was introduced to remedy the mischief, and, in fact, only made that less practicable which was before illegal. So that I cannot go into arguments on the impolicy of the law; and if I could, it would be sufficient to say, that several attempts have been made to repeal this law in parliament, all of which have proved ineffectual. Then the question is, What is the law? The meaning of the act is, that where there is the consent of a father or guardian lawfully appointed, or of a mother, or guardian appointed by the Court of Chancery, the marriage shall be valid; but here there was no consent by any one; consequently, in my opinion, it is void by the marriage act. There is no reason to except illegitimate children, for they are within the mischiefs intended to be remedied by the act. The rest of the Court concurred, and the order removing the paupers from S. to H. was confirmed. 99. Rex v. Brampton, M. T. 49 G. 3. 10 East, 282.- Evidence Evidence of that British subjects in a foreign country being desirous of in- marriage. termarrying, went to a chapel for that purpose where a service in the language of the country was read by a person habited like a priest, and interpreted into English by the officiating clerk, which service the parties understood to be the marriage service of the church of England, and they received a certificate of the marriage, which was afterwards lost, is sufficient whereon to ground A person whose baptismal and surname was A. L was married by banns by the name of G. S., having been known in the parish where he resided, and was married by that name only from his first coming into the parish till his marriage which was about three years: Held, that the mar riage was valid, and therefore the wife and children enti band's settle ment. a presumption (nothing appearing to the contrary) that the marriage was duly celebrated according to the law of that country, particularly after eleven years cohabitation as man and wife till the period of her husband's death. And such British subjects being attached at the time to the British army on service in such foreign country, and having military possession of the place, it seems that such marriage solemnized by a priest in holy orders (of which this would be reasonable evidence), would be a good marriage by the law of England as a marriage contract, per verba de præsenti before the marriage act; marriages beyond sca being excepted by that act. And it would make no difference if solemnized by a Roman Catholic priest. -- 100. Rex v. Billingshurst, M. T. 55 G. 3. 3 M. & S. 250. — The Quarter Sessions upon appeal confirmed an order of removal of G. S., his wife and children, from the parish of S. to B., subject, &c. The pauper, whose baptismal and surname is A. L and whose legal settlement is in B., was married to his present wife in the parish of L., by banns, about four years ago, by the name of G. S. Previously to his marriage he had resided about three years at L., during which time and from his first coming into that parish, and during all the time he remained there, and afterwards until and at the time of his removal, he was known by the name of G. S. only. The wife and children have no settlement in B., unless they have acquired one by the marriage. — LORD ELLENBOROUGH Č. J. All that the law requires on this subject is, that marriages shall be solemnized either by licence or publication of banns, otherwise the stat. 26 G. 2. c. 33. § 8 declares that they shall be void. The statute does not specify what shall be necessary to be observed in the publication of banns, or that the banns shall be published in the true names, but certainly it must be understood as the clear intention of the legislature that tled to the hus- the banns shall be published in the true names, because it requires that notice in writing shall be delivered to the minister of the true christian and surnames of the parties seven days before the publication, and unless such notice be given he is not obliged to publish the banns. The question then is, Has there been in this case that which is required, a due notification by the minister on a Sunday in time of divine service, of one of the persons intending to contract marriage? Now it appears that such notification has been made by the name of G. S., by which name alone the party was known in the place where he resided, and which he had borne for three years prior to the celebration of the marriage in that place, and that he was not known there by any other name. It would lead to perilous consequences if, in every case, an inquiry were to be instituted at the hazard of endangering the marriage of a woman who had every reason to think she was acquiring a legitimate husband, whether the name by which the husband was notified in the banns were strictly his baptismal name, or whether at the period of his baptism he may not have received some other name. What the consequences might be of encouraging such inquiries, as to the avoiding of marriages and bastardising the issue of them, it is not very difficult to imagine. The object of the statute in the publication of banns was to secure notoriety, to apprize all persons of the intention of the parties to contract marriage, and how can the object be better attained than by a publication in the name by which the party is known? If the publication there had been in the name of A. L. it would not of itself have drawn any attention to the party, because he was unknown by that name, and its being coupled with the name of the woman, who probably was known, would, perhaps, have led those who knew her and knew that she was about to be married to a person of another name, to suppose either that these were not the same parties, or that there was some mistake. Therefore the publication in the real name, instead of being notice to all persons, would have operated as a deception, and it is strictly correct to say that the original name, in this case, would not have been the true name within the meaning of the statute. On these grounds I think that the act only meant to require that the parties should be published by their known and acknowledged names, and to hold a different construction would make a marriage by banns a snare, and in many instances, a ruin upon innocent parties. The Court, therefore, cannot lend itself to a construction which would be pregnant with such consequences. -LE BLANC J. This question comes before the Court under circumstances which strip it of any thing like fraud. The pauper, who was known in the parish by the name of G. S. only, is notified to the minister by that name, and the banns are regularly published in that name in the parish church. And the objection is that the marriage is null and void because the name of G. is not the true name by which he was baptized, and because Smith is not his true surname, wherefore it is argued that this was a marriage without publication of banns. It is material to look to the marriage act in order to see in what way it directs the banns to be published. The only clause which directs the true character and surnames to be used, is the second, and that has reference to the notice to be given to the minister, it requires that a notice in writing shall be delivered of the true christian and surnames of the persons to be married. A subsequent clause (§ 8.) forbids any person to solemnize marriage without publication of banns unless by licence under the pain of being adjudged guilty of felony, and provides for the punishment of persons who shall so do, and then it concludes, "that all marriages solemnized without publication of "banns or licence shall be null and void to all intents and purposes." To be sure the argument here must necessarily be, that a marriage by banns which are published not in the true christian and surnames of the parties is a marriage without publication of banns. But I cannot accede to that argument, recollecting what was the object of this provision in the marriage act. The object of it was to insure notoriety to the transaction, and I think the Court, recollecting that, cannot say that a marriage by banns published in the names by which alone the party was known, is a marriage without publication of banns. The argument is, that a marriage by publication of banns means by publication of banns in the real names of the parties only, but the statute has said no such thing. If the banns be published in the names of the party by which alone he is known, and there is no fraud, whether that be the true christian or surname of the party or not, I think the marriage is good within the meaning of the statute. Therefore I am of opinion, that upon the present occasion, every thing was done that was sufficient to give that notification of the marriage, which it was the object of the marriage act to insure.-PER CURIAM: Order of Sessions confirmed. A marriage by licence not in the man's real name, but in the name which he had assumed because he had deserted, he be ing known by that name only in the place where he lodged and was mar ried, and where he had resided, sixteen weeks, was held a valid marriage. The husband's settlement, if the marriage, communicated to the wife. 101. Rex v. Burton-upon-Trent, H. T.55 G. 3.3 M. & S. 537.Upon an appeal against an order for the removal of Elias Price from G. to B., the Sessions confirmed the order, subject, &c. The pauper's father who was settled at Desford, and whose real name was Joseph Price, was married at Leicester by licence, by the name of Joseph Grew, having changed his name to Grew because he had deserted from the army, and he was known by that name only at Leicester, where he lodged at the time of his marriage, and where he had resided sixteen weeks. He never passed by any name but Price in his father's family, and in the place where they resided. His wife did not know his real name till a fortnight after the marriage, when he told it her. The pauper was the issue of this marriage, and was born at B., and after his birth his parents were married by the true name. The Sessions considered the first marriage as invalid, and therefore that the pauper was not entitled to his father's settlement. - LORD ELLENBOROUGH C. J. There is not any occasion to trouble the other side. If this name had been assumed for the purpose of fraud, in order to enable the party to contract marriage, and to conceal himself from the party to whom he was about to be married, that would have been a fraud on the marriage act and the rights of marriage, and the Court would not have given effect to any such corrupt purpose. But where a name has been previously assumed, so as to have become the name which the party has acquired by reputation, that is, within the meaning of the marriage act, the party's true name. The same law has been recognized in the case of negotiable instruments, where if a party sign an instrument in a name assumed by him for other purposes a considerable time before, such signature will not amount to a forgery; but otherwise, if he assume a name by which he had never been known before for the purpose of fraud.(a) Now here the party assumed the name for the purpose of concealment, and not of fraud upon the marriage, and he was known by that name alone for sixteen weeks in the place where he was married. It seems to me, therefore, that he had acquired the name, and that to have had a licence in any other name would have been a fraud on the marriage act — LE BLANC J. The name was assumed by the father for the purpose of concealing himself as a deserter from His Majesty's service, and not with a view to impose upon the woman whom he married.. BAYLEY J. The Sessions may always draw the line whether the name was assumed for a fraudulent purpose, as it regards the marriage or not. - Orders quashed. III. Of the Wife's Settlement in Right of the Husband. 102. Appotens v. Dunswell, E. T. 11 W. 3. MSS.- A single woman, being legally settled in the parish of D., came into the known, is, by parish of A., and there married a strolling player, who upon his death-bed declared, that he was born in the parish of W. The woman was removed, by an order of two justices, from A. to D., the place of her maiden settlement. - FORTESCUE objected to this order, that the woman's settlement was in the place where her husband was born. -THE COURT: Although the husband may be settled in the parish of W., yet the wife cannot be said to be (n) Rex v. Shepherd, 2 East's P. C. 967.. Aickle's case, ib. 968. S. C. Sett. and Rem. 66. 1 Sess. Cas. 85. last legally settled there, according to the statute 13 & 14 Car. 2. c. 12. for she never was at that place (a), and therefore could not (a But see the live with him forty days irremovable as part of his family: so if following cases. a man have an estate in a parish, and do not live there, he cannot be sent there; but if he ever lived there forty days, he will be settled there. 103. St. Giles v. Eversley, H. T. 10 G. 1. 2 Sess. Cas. 116. – W. C. was born in the parish of St. G., and was bound apprentice for seven years in E., where he served two years; but his master failing in his circumstances, he removed back to St. G., where he married, had three children, and died. The wife and the three children were removed, by an order of two justices, from St. G., to E.- REEVE: The wife cannot take the benefit of her husband's right of settlement after his death, as she had not taken any advantage of it in his lifetime, but had waived it, and fixed in another place. EYRE and FORTESCUE JS. The wife and children must be sent to the last legal settlement of the husband and father; for his settlement is their settlement, and birth makes no settlement but in the case of a bastard, who is not considered as the child of any, and is therefore a vagrant, and can gain no settlement but by birth. The order was confirmed. - A widow shall be sent to her husband's last settlement, though she never was at the place in his lifetime, if she has not gained a new settlement S. C. 1 Ld. Fort. 320. A wife cannot gain a settle. ment separate from her husband during the and distinct 104. Rex v. Aythorp Rooding, M. T. 30 G. 2. Burr. S. C. 412. -W. G. the pauper's husband was legally settled at W. R., from which place he went away, and deserted his wife and children. The wife left W. R., and went, with her children, and lived forty days, without her husband, in a copyhold tenement of her husband's own at A. R. Legal notice to depart from this tenement coverture. was given to her within the forty days by the parish-officers of A. R.; which she not doing, two justices removed her from thence to the parish of W. R., as a person likely to become chargeable. -THE COURT were unanimously of opinion, that although the wife could not gain a settlement for her husband by residing forty days upon his own estate, yet that she was irremovable from the property of her husband upon being only likely to become chargeable: for she had a natural, or at least a matrimonial, right to go to her husband's estate; and as there does not appear to be any dissent of her husband, it shall be presumed that he consented. IV. Of the Wife's Settlement in her own Right. 105. Rex v. Wilsborough Green, M. T. 12 Ann. Foley, 249. The order of two justices recited, that "whereas complaint has "been made unto us, by the churchwardens and overseers of the "parish of D., that A., the wife of A. P., with H. her son, aged three years, is come into the said parish of D., and is "likely to become chargeable to the said parish of D.; and "that the said A. P. is a Scotchman, not having any legal "settlement in Great Britain; which complaint we do ad"judge to be true; and we do adjudge the said A., with her "said child, to be likely to be chargeable to the said parish of "D.; and we do also adjudge the place of their last legal settle"ment to be at W. G.; and therefore order, that they remove her " and her child thither, as being A.'s settlement before her mar"riage."-AN EXCEPTION was taken to this order, that the pauper The wife's settlement in her own right is not extinguished by her marrying a Scotchman, who had no settlement in England, but reand her children. mains to her |