1836.

GENERAL

OF

NEWFOUND

LAND

that the defendant ought at the trial to have pleaded this specially, if entitled to any weight, comes too late; ATTORNEYit was not made in the Court below, and it would be too hard to allow it to be taken now. With respect to the construction of the various statutes affecting this question, we think the Chief Justice of the Court below has stated it correctly, and that the judgment must be affirmed.

v.

CUDDILY,

The following case on the power of the Crown to grant out waste lands in Newfoundland, under the 5 Geo. 4, c. 51, s. 15, having been heard at the same time as the last case, is inserted here; as the arguments of counsel were for the most part the same as those reported above, and the judgment of the Court was not given at any length, a statement only of the case and the decision is thought sufficient.

17 June 1836.

pied in the

THIS was an appeal from a judgment of the same Court on a verdict on a like information filed by His Majesty's Attorney-general of Newfoundland against Land unoccuthe respondent, for intrusion upon a certain quantity island of of land belonging to His Majesty, near Logie Bay, in land at the the island of Newfoundland, which the respondent had time of enclosed.

Newfound

ing the 5 Geo. 4, c. 51, is within that statute, and

may be granted out as waste lands under the 15th sec., notwithstanding it has been occupied and enclosed before any grant of it was made.

1836.

GENERAL

OF

NEWFOUND-
LAND

The information contained a second count for set

ATTORNEY- ting fire to the trees, wood and timber growing on the said land. The respondent pleaded "Not guilty;" and upon the trial of the cause in the Supreme Court of the island, before the Chief Judge and the rest of the Judges on the same 18th of February 1831, the respondent was acquitted by the jury.

v.

RYAN.

By the 5 Geo. 4, c. 51, s. 15, it is enacted, "That it should and might be lawful for His Majesty, his heirs, and successors, to grant to any person or persons any waste and unoccupied lands, situate and being within the colony of Newfoundland, and which had not, at the time of passing the said Act, been granted by His Majesty, or any of his royal predecessors, to any person or persons, anything in the charter granted by any of His Majesty's royal predecessors or in any Act of Parliament to the contrary notwithstanding."

The land in question, at the time of passing the Act, was unoccupied, and as it was proposed to grant it out under the Act, applications were made to the Government of Newfoundland for grants, and the defendant was himself an applicant. It was at the same time covered with bush and fire wood. An answer to the defendant's application not having been returned, he was, in 1828, proceeding to enclose the land on both sides of a road which ran through it, when he received a notice from the Surveyor-general to desist, but he nevertheless persisted in enclosing it, and proceeded to burn the peat and brush-wood, and in so doing the fire extended itself beyond the land in question, and spread itself over a considerable tract. The Attorney-general, in order to recover possession of the land on behalf of the Crown, filed an information in the nature of a writ of intrusion; but upon the

1836.

GENERAL

OF

NEWFOUND

LAND

trial the Court was of opinion that the Crown had not shown any title to the land in question, and that ATTORNEYas the defendant was in the actual occupation of it before any grant was made, the Act of Parliament would not of itself empower the Crown to grant it out, and directed the jury to find a verdict of "Not guilty;" and judgment was thereupon given for the defendant.

From this judgment the Crown appealed, insisting that the occupation by the defendant, after the passing of the Act, was a mere usurpation, and the land was notwithstanding waste and unoccupied within the meaning of the Act, and might be granted out by the Crown under it, and for that purpose the Crown was entitled to recover the possession.

The case was argued only for the Crown by the Solicitor-general and Mr. Wightman; no person appearing on behalf of the respondent, and the judgment of the Court below reversed.

v.

RYAN.

21 June 1836.

A marriage

by banns, in the publica

tion of which

EDWARD CROXALL TONGUE, being a minor of the age of 17 years, and Mary Ann Allen a widow of the age of 35 years, were married by banns in the parish church of St. Michael, Bristol, on the 26th February 1833. The banns were published on man, a minor, the three preceding Sundays, in the names of Edward Tongue, bachelor, and Mary Ann Allen, spinster, and which the marriage was registered in the following form:

one of the Christian

names of the

was design

edly conceal

was solem

nized in such imperfect name; held void under

the statute

4 Geo. 4,

the judicial

Edward Tongue, of this parish, bachelor, and Mary Ann Allen, of this parish, spinster, were married in this church by banns, with consent of

c. 76, 87,22, this twenty-sixth day of February, in the year one thousand eight hundred and thirty-three,

committee

being of opinion that the circumstance of the man omitting to sign his full Christian names in the register, indicated his participation in the previous false publication.

By me, J. B. Jebb, Curate.

This marriage was solemnized between us,

Edward Tongue,

{ Reward

Samuel Quinton, Mary Ann Allen.

In the presence of Sarah Haynes.

The marriage was clandestine, and without the knowledge or consent of the parents of the minor, who

(a) Present: The Vice-Chancellor, Mr. Baron Parke, Mr. Justice Bosanquet, and the Chief Judge of the Court of Bankruptcy.

at the time was a pupil of Mr. William Cowan Atchison, the brother of Mrs. Allen.

Mrs. Allen resided with her brother, and acted as his housekeeper in the management of his affairs, and in such capacity attended to his pupils.

The minor was the eldest son of Edward Tongue, Esq., a gentleman possessed of considerable landed property he was baptized by the names of Edward Croxall Tongue, and though known to some of the witnesses (two of whom were his school-fellows) by the names of Croxall Tongue, or Tongue only, had never been known by the name of Edward Tongue.

Sarah Haynes, the sexton of the parish church of St. Michael, one of the witnesses who was present at the marriage, on her examination stated, that it was part of her business, after the clerk had entered the names and description, &c. of the parties whose banns were to be published in the banns-book, to file the paper from which he makes the entry, and put it away in the surplice-closet, in the vestry: the clerk makes the entry and she files the paper from which he makes it; he crosses the paper as entered, and then she puts it on the file, and she did so with the paper of notice for the marriage in question. She did not remember the publication of the banns in consequence of that notice particularly, but said she should not have been present at the marriage as she was, unless the banns had been regularly published and the parties outasked: both the rector and the curate are very particular in examining the banns-book before a marriage takes place; they make the parties examine the entry and see that their names are right, and their descriptions right and if there is any mistake and a licence necessary, the rector makes the clerk pay for it, and

1836.

TONGUE

v.

TONGUE.