1836. TONGUE v. TONGUE. par that makes the clerk very particular; and so she was It was not until the month of December, in the same year, that Mr. Tongue, the father, became acquainted with the circumstances of the marriage, and in the month of January following he instituted proceedings in the Consistory Court of London against Mary Ann Tongue, to annul the marriage on the ground of the minority of Edward Croxall Tongue, and the undue publication of banns. On the 22d July, Mary Ann Tongue was dismissed from the suit, by which the marriage was declared duly solemnized. From this decision an appeal was interposed by Mr. Tongue to the Arches Court, and on the 7th May 1835 the Judge (Sir Herbert Jenner) pronounced for the appeal, resisting the sentence appealed from, and pronounced the pretended marriage between Edward Croxall Tongue and Mary Ann Allen null and void, pursuant to the statute 4 Geo. 4, c. 76, by reason that the said pretended marriage was had between them knowingly and wilfully, without due publication of banns, and without a licence from any person or persons having authority to grant the same being first had and obtained (a). From this decree Mrs. Tongue now appealed. The King's Advocate (Sir John Dodson), and The question depends on the true construction of the last Marriage Act, 4 Geo. 4, c. 76. The 22d section enacts, "That if any persons shall knowingly and wilfully intermarry without due publication of banns or licence from a person or persons having authority to grant the same first had and obtained, or shall knowingly and wilfully consent to acquiesce in the solemnization of such marriage by any person not being in holy orders, the marriage of such persons shall be null and void." In order to avoid a marriage under this Act, the parties must knowingly and wilfully intermarry without due publication of banns, Wiltshire v. Prince (b); Hadley v. Reynolds (c). Both parties must be conversant of the fraud, Rex v. Wroxton (d). It is therefore purely a question of fact to be determined upon the evidence in the case. There is no evidence that the husband procured the banns to be published in the name of Edward Tongue instead of Edward Croxall Tongue, or that he knew anything about the publication of the banns. The statement of Sarah Haynes that she has no doubt the banns-book was inspected at the time of the marriage, is mere belief from a general usage, and is at best only (a) Reported in 1 Curtis, 38. (c) 4 Hagg. Rep. (b) 3 Hagg. Rep. 332. (d) 4 Barn. & Adol. 640. 1836. TONGUE v. TONGUE. 1836. TONGUE v. TONGUE. her own conclusion; it is no evidence of the fact. The formal and legal description of the status of the parties is not requisite; the 7th section requires notice of the names and place and time of abode of the persons desiring the publication of banns, and does not insist on any formal description. The circumstance that Mrs. Allen, being a widow, described herself as a single woman, is therefore immaterial. The banns being in the name of Edward, the ceremony was of course performed in that name, and the person repeating after the clergyman would pronounce that name only which the minister did. Edward was the first, and, being a common name, must have been his most usual Christian name. The marriage is complete from the time it is pronounced so by the minister; the signature in the register is no part of the marriage, it is a subsequent and independent act. The test to be applied is the same as in offences against the criminal law: there a guilty knowledge must be shown. Upon an indictment for receiving stolen goods, or for uttering counterfeit coin, proof of the guilty knowledge must be shown; it may be inferred from the conduct of the parties, but the evidence to warrant such inference must be irresistible. There is nothing here to warrant such conclusion. In an action upon a bill of exchange against an indorsee, notice of dishonour must be proved; suppose the witness should say, It is the custom of our house to give twenty-four hours' notice, and therefore I make no doubt such notice was given, could the acceptor recover? The inspection of the banns-book ought to be made out by direct evidence; it is mere surmise and conjecture. Sir William Follett and Dr. Addams for the Re spondent. To arrive at the true construction of the Marriage Act, the Act previously in force must be referred to. By 26 Geo. 2, c. 33, s. 8, persons convicted of solemnizing matrimony without banns or licence were liable to be transported, and the marriage was null and void. Under that section it was held that if the banns were unduly published, the marriage was absolutely void. That alone annulled the marriage. It was to remedy that mischief that the statute 4 Geo. 4, c. 76, was passed, which by the twenty-second section provides that the marriage shall not be avoided unless the parties shall knowingly and wilfully intermarry without due publication of banns, &c. It is contended that under this statute both parties must knowingly and wilfully participate in the fraud. The object of the last statute was to correct the effect of the former one, by upholding a marriage where no fraud was intended. If the construction insisted on by the other side is to prevail, the statute will go further than the Legislature intended, and make a fraudulent marriage good. The word 'persons' in the twenty-second section does not imply parties; it is the nominative to the verb intermarry, and is used to make the sense complete. The seventh section, directing the delivery of notice for the publication of banns, treats such delivery as the act of both parties; the word 'persons' is there used: yet it is not pretended that such delivery is requisite by both the same construction must prevail in the twenty-second section. The case of The King v. Wroxton is no authority in point. It does not appear that either party was under age: the husband procured the pauper to be married in a false name, and the Court de 1836. TONGUE v. TONGUE. TONGUE v. TONGUE. 1836. cided, that for the purpose of a settlement the marriage was valid. Neither the parties themselves or their guardians sought to annul the marriage. The marriage here was in fraud of the rights of the father. One party must always be conusant of the fraud; and where two parties combine to carry a fraud into effect, the law presumes each equally guilty, and consequently each must be conusant of it. The onus of disproving such conclusion is on the other side. They have not examined the clerk who was a witness to the marriage, and could have deposed to the ignorance of the husband, if such existed. The witness Haynes speaks as to the custom of examining the banns-book; such examination must be presumed to have been made unless disproved on the other side; there is no ground to infer the contrary. All the authorities on the construction of the old statute are in King v. Billinghurst (a), and they show that the alteration or omission of a christian name in the publication of the banns rendered the marriage void where the intent of the parties was fraudulent. Such intent existed here; the marriage was without the consent or knowledge of the guardian of the minor; both parties were anxious for a clandestine marriage, and both conspired to obtain one; that is sufficient to presume both conusant of the fraud. The woman is confessed to have been aware of the fraud; the husband must have been particeps criminis. The banns are published in one only of his Christian names, Edward, he is married by that name only; he signs the register in that name alone; he knew it to be a partial, and therefore a false signature; and must have known the (a) 3 Maul. & Selw. 250-259. See particularly the case of Pousett v. Tomkyns, ib. 262. |