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1836.

TONGUE

TONGUE.

previous circumstances which made that signature requisite. The concealment of his name being for the purpose of a fraud, the marriage is null and void,

The King's Advocate in reply.

The VICE-CHANCELLOR: Their Lordships think that the decree in the Court below must be affirmed; Mr. Baron Parke thinks that stronger evidence of the knowledge of the parties to the fraud ought to have been obtained; but the rest of their Lordships feel satisfied with that which has been produced. We concur in the judgment in Wilshire v. Prince, but consider this case dependent on its own circumstances. It appears that the marriage was clandestine, from the first step taken in it to its final solemnization; that it was concealed, and intended to be so. The woman is admitted to have been conusant of the fraud, and to have meditated and intended it. The minor is contended to have been ignorant of it. The note from which the banns were published misdescribed the husband, calling him Edward Tongue, his real name being Edward Croxall Tongue: the marriage was celebrated in the name of Edward only, and he signed the same name in the parish register: the entry is, Edward Tongue and Mary Ann Allen were married in this church by banns: it is therefore impossible for him not to have known of the publication of the banns; and the signature of only one of his Christian names shows that he must have known that the banns had been published in that name only. The signature was a fraud, and, coupled with the circumstance I have already alluded to, satisfies their Lordships that he,

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1836.

TONGUE

v. TONGUE.

with the woman Allen, knowingly and wilfully intermarried without due publication of banns: we therefore affirm the judgment of the Court below, but without costs.

1836.

one continu. ous act, and after a cause has been set

ON APPEAL FROM THE PREROGATIVE
COURT OF CANTERBURY.

(On Protest.)
PENDOCK BARRY BARRY, Esq.

Appellant,

and JAMES BUTLIN, Esq.

Respondent.* 22 Juno THIS was a cause originally instituted for proving

the last will and testament of Pendock Barry, deof a cause in ceased, promoted by the respondent, the sole executive Court istor against the appellant, the son and only next of kin

of the deceased.

The cause was commenced in the Prerogative down for sen. Court of Canterbury, on the 13th May 1833, and

various pleas having been put in, and witnesses ex

amined on both sides, was set down for sentence on either of the the 30th May 1835, on the second assignation on litigant par. the fourth session of Trinity term.

On the 30th November and the 3d and 4th Decempeal, till sen

ber 1835, the cause came on to be heard, when certain

objections were taken by counsel on both sides to part signation.

of the evidence, some of which the Judge (Sir Herbert Jenner) directed to be expunged: upon which an appeal was alleged, and objected to as not being an appealable grievance; the hearing of a cause being

• Present: Mr. Baron Parke, Mr. Justice Bosanquet, The Chief Judge of the Court of Bankruptcy, Sir John Nicholl and Sir Herbert Jenner,

tence on the second assignation, it is not com

ties to interpose an ap

tence has been given on the ag.

1836.

BARRY

V. BUTLIN,

one continuous act, it was also insisted, on the part of the present respondent, that after a cause was set down for sentence on the second assignation, it was not competent to either of the litigant parties to interpose an appeal till the sentence upon that assignation should have been given.

The cause accordingly came on for hearing upon

this protest.

The King's Advocate (Sir John Dodson), and

Dr. Phillimore, for the Respondent. The question is, whether an appeal lies before final sentence. The appeal here interposed is from an order made in the Court below, during the hearing of the

cause, that certain portions of the evidence should not be read. The course complained of is every day's practice, and is not an appealable grievance. The Judge decides, as the cause proceeds, what is and what is not admissible evidence, rejecting that which is not admissible, and directing it to be expunged. The hearing, no matter how long it occupies, from the commencement to the final judgment, is but one continuous act; and there is no instance of an appeal being interposed before the termination of the hearing. An appeal can only be brought here from the ecclesiastical courts upon a grievance. This is no appealable grievance; for if the judgment, when pronounced, should be wrong, either in law or facts, an appeal may be brought to correct it. If an appeal be interposed, an inhibition must be granted. This is discretionary in the Court to grant or refuse; yet, to proceed without it would be useless. The 97th canon prohibits the granting of inhibitions until the appeal shall be exhibited to the

1836.

BARRY

t'. BUTLIN.

Judge (a). All the authorities are collected and referred to in Herbert v. Herbert (6). The rejection of evidence is in itself no appealable grievance; if the Judge refuse to permit a witness to be examined, who is actually present in Court, it is no appealable grievance. This is laid down in Oughton(c), and was recognised in Greg v. Greg (d). All the Judge below has as yet done is to say such and such parts of the evidence produced I shall not take into consideration : but until the judgment in the cause is pronounced, no cause of appeal exists.

Dr. Lushington and Dr. Adams for the Appel

lants. No discussion was raised in the Court below as to whether this was an appealable grievance; and the case comes before your Lordships without any circumstances from which you can form a judgment on that point. The general principle of the civil law is to extend the right of appeal: it may be an inconve

(a) Marant. Spec. Ann. 6. Act 2, s. 207: “Secundum regulam principalem non procedere quando fuit judici a quo inhibitum per superiorem quia tunc non potest ultereus procedere in illâ causâ : quod tamen intellige quando inhibitio fuit legitimè interposita, et cum causa cognitione, et parte citatâ nam quando est appellatum, in casu in quo non debuit appellari, vel quia causa est injusta, vel appellatio est frivola et frustratoria, tunc nunquam debet judex ad quem, inhibere, nisi priùs adhibeat causa cognitionem super justitiam appellationis, alias inhibitio non valet.

(6) 2 Phil. Ecc. Rep. 430. 440, 441.

(c) Oughton, Ordo. Judiciarum. Sit. 116. I. Si in die assignato ad proponendum omnia pars actrix, sive rea, habuerit testes necessarios, presentes in judicio, et juraverit eos esse testes necessarios, judex eosdem admittere, jurare, et examinare potest. IV. Tamen relinquitur judices arbitrio, an valuerit hujusmodo testes admittere, vel rejicere, neutri partium datur justa causâ appellandi.

(d) 2 Adams, 276. 282.

1836.

BARRY

BUTLIN.

nient practice, but it prevails. In questions on the admission or rejection of evidence, an appeal cannot be postponed, because if the evidence be rejected it forms no part of the proceeding, and the decision is independent of it; unless, therefore, an appeal be permitted to be interposed, we should be held to have acquiesced, and be precluded from that ground of appeal after judgment pronounced. In a case from the Consistory Court of Salisbury, an article was omitted to be corrected pending the hearing, and was afterwards excluded. The same point arose a short time ago in this Court, in the case of the ship Clifton (a). In Scotland, if a single argument is struck out it may be made the subject of an appeal. We contend, that the passages in the evidence directed in the Court below to be expunged, ought to remain as part of the proceedings. We do not say that the Judge may not strike them out of his notes, or exclude them from consideration in his judgment; but we insist they ought to remain as part of the evidence tendered in the cause. The passage cited from Oughton is no authority against this position. If the evidence had been merely consequential, it might have been proper to suspend an appeal till the judgment had been delivered; but the case of the appellants depending upon the evidence, if that is rejected it is useless for them to proceed. This is therefore an independent question; all we ask of your Lordships is, that the evidence

may

be heard in full.

Sir John NICHOLL: Their Lordships are of opinion, that whatever is done after a cause is concluded and comes on for hear

(a) Knapp & Moore's Repts.

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