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names had in some cases been made a matter of difficulty. Jt had been suggestedwhetheror not nana- acquired by general use and reputation could supersede the original ones, but this the Court was not called upon to decide in the present case. It might also happen that the publication might take place incorrectly, either through the inadvertency of those who jjive them in, or those who receive them for that purpose, but this case was also exempt from that consideration. The names were evidently assumed for the fraudulent purpose of making itappear that the party was related to a noble family in the manner he stated. He then recapitulated the leading circumstances of the case, and observed, that there was not the least reason to suppose any such relationship existed as pretended. Miss Fellowes certainly appeared rather captivated withtbe prospectof a coronet, and her friend Miss Jones assisted in obtaining the publication of bans. Whether the publication being in the right names on one of the Sundays, and in the wrong ones on the others, would be a ground of nullity the Court was not called upon to determine. It would certainly regard a suit on such a ground with great prejudice, but in this case none of the publications had been in the true names. What, then, could have been the motive for giving the name of "Douglas" before Miss Fellowes, and afterwards withdrawing it? Doubtless for the purpose of confirming by so many Scotch names, the impression that he was related to the noble family of Moray, as who that knew "William
Stewart" the liquor retailer's son of Edinburgh, would, on hearing the publication in the names of "William Douglas Dundas Stewart" suppose it to be the same person? It was not necessary to .shew actual fraud; it was enough if leading to a possibility of fraud; non constat that she might not have been prevented even by the introduction of the name of " Douglas" from making inquiries into the truth of those representations by which she had been so much deluded, and the discovery of the falsity of which might have altered her intentions as to the marriage. Upon the whole of the case, therefore, he was of opinion that this was not a publication within the meaning of the act, and that the assumption of name was for the fraudulent purpose of inveigling this young lady into a marriage effected wholly by fraud. The marriage was therefore pronounced null and void, with costs against the defendant.
Stallwood v. Tredger, falsely called Stallwood.—This was a question as to the admissibility of a libel in a cause of nullity of marriage, by reason of the undue publication of bans, instituted by Mr. James Stallwood, of Hammersmith, Middlesex, against Maria his wife, describing her as falsely so called, and by her maiden name of Tredger only.
The suit was instituted by letters of request from the Commissary Court of Surrey, the party proceeded against residing at Lambeth, within its jurisdiction, and the libel now offered pleaded the clause in the Marriage
Act, Act, 2Gth Geo. the Second, which directs "that all bans of matrimony shall be published in the parish church, or in some public chapel (in which bans ^have been usually published), belonging to the parish or chapelry wherein the parties dwell; if they reside in different parishes or chapelries, the bans to be published in each; and if either of them reside in any extra parochial place (having no church or chapel iu which bans have been usually published), then the bans to be published in the church or chapel of some adjoining parish or chapelry, in which case the minister shall certify the publication in the same manner as if either of the parties lived in such adjoining parish, and all other the rules of publication pi escribed by the Rubrick, not altered, shall be duly observed, and the marriage solemnized in one of the churches or chapels where the bans have been published, and in no other place whatsoever." It then pleaded, that in May, June, and July, 1792, the parties iu this case, intending to be married, and being respectively parishioners of St. Mary, Newington, Surrey, gave notice in writing to the minister of that parish, of their names, address, &c. in order to have the bans published. From the I/th of June, 1792, the church of St. Mary, Newington, was shut up, ami under repair in order to be in a great part rebuilt and enlarged, and v» as presently .afterward unroofed, and in great part pulled down, so that from that time until the 9th of February 1794, no divine service was performed in jt. The entry for the publication
of bans was, however, made fat the bans book of St. Mary, Newington, which was taken to the adjoining church of Saint George, Southwark, and the bans there published on Sundays, the 29th of July, and the 5th and 12th of August, 1792, the curate making a memorandum in the margin to this effect: "published at Saint George's, Southwark, Newington church being under repair." The marriage was solemnized on the 13th of August following, on the site or ruins of Newington church; and the question was, whether it was void under the clause of the act cited, as having been solemnized in a different parish to that in which the bans were published.
It was contended, in opposition to the admissibility of the libel, that this was not a case in the contemplation of the legislature, or within the mischief intended to be remedied by the act, the object of which was, " for the better preventing clandestine marriages." There were no words in the act imperative upon this point, or any enactment declaring in express terms such a marriage null and void. It would have been a good marriage before the act, and was so still, if not rendered null by it. It might be a marriage in which the persons celebrating it might be liable to punishment; it might be contrary to the directions, of the statute, but it did not follow that the act itself would be null and void. There must be some words in the statute specifically declaring sucha marriage null and void; but there were none such applicable to the presc/it case; acd what rendered them indjspen*
ahJe nhle here was, that the legislature, when it intended that certain marriages should be altogether void, had used the very words which were not applied to the present case. The 3d section of the act declared the publication of bans, where parents gave notice of their dissent, altogether void. The 8th annulled all marriages celebrated in any place but a church or public chapel, where bans of marriage have been usually published (except by special license): and the the 11th declared the marriages of minors null and void. But the present case did not come \\ ithin the range of either of these enactments. This was still more manifest, for by the 1st section marriages by bans were to be celebrated in the parish church of the parties; and by the 4th, those by license in the place where the parties resided. But -all this was directory only. The 8th section was still necesary to render the marriage void, and that section did not apply to the present case. By former statutes, 6 and 7 Wm. c. 6. many directions were given as to the mode of celebrating marriages, and penalties imposed upon the parties not complying with them, but the marriages themselves still continued valid. The present act seemed to proceed upon the same principle, and, therefore, the v marriage in question, though perhaps in some degree irregular, yet not being deckired null, was still to be considered as valid, as it would have been, had the act never passed. Upon • these grounds, it was submitted tfiat the libel must be rejected
as insufficient, though proved to sustain the suit, and the party be dismissed.
It was contended in support of the admissibility of the libel, that the act, besides being directtory, was prohibitory: it directed where a marriage should be had, and prohibited where it should not, and this prohibition would be without effect unless the marriage were null and void. The sections were in different forms, and it was not necessary that all of them should contain the words "null and void," as they would, in construction, follow to all the clauses after the first without being so specified. There were various causes of nullity, which, though not specified, would equally render a marriage void, such as the omission of any material parts of the marriage ceremony, &c. The first part of the 1st clause was not so strong as the latter, whicli expressly directed that the marriage should he solemnized in the church or chapel where the bans had been published, and in no other place whatever ; whereas the 10th section declared that as to bans published, it was not necessary to prove a residence, so that the parties in this case were perfectly at liberty to have the bans published in another church, whilst theirown wasunder repair, butnot afterwards to marry in any other than that where the publication had passed. Upon these grounds it appeared that the marriage was contrary to the directions, and within the prohibitions of the act, and, therefore, under the proper and legal interpretation of that act, null and void.
Sir John Nicholl recapitulated the facts of the case, which, he observed, were fully and fairly set forth in the libel. It appeared that two persons, fully and legally competent to contract matrimony, make the proper application for that purpose in the parish church where they reside. The parish church being under repair, and no divine service in consequence performed in it, a publication of buns there was impossible, because the purpose of it could not be answered. The publication was therefore made where its object could be effected, viz. in the church of an adjoining parish, resorted to by the parishioners of this, but the marriage took place in the church of the regular parish, it being in a sufficient state of repair for that purpose, though insufficient for the bans; and the question was, whether the marriage was valid or void, a question certainly of great importance. The case was entirely new; there could be no doubt of the marriage being valid before the passing of the Marriage Act, and the question therefore was, whether it was made void by that act. The clause recited did not make it void, in express terms, but only, as was contended, upon a sound construction of it, with reference to the rest of the act. This clause containing no enactment of nullity, and there being others which did, the inference was, that no nullity was intended by it; but the Court did not form its opinion upon that consideration alone. It might be weighty, but leading to difficulties; and it was not necessary to say whether bans at York
and a marriage in London, might or might not, if bona fide, be good. The title of the act was, " for the better preventing clandestine marriages." This was its sole object; but in the present case the marriage was any thing but clandestine; there existed no impediment to it; there was nothing either to evade or avoid; but all was done publicly, and 20 years afterwards a nullity is sought for. There are probably hundreds of marriages of this description in other parishes, and in different parts of the kingdom. The proceeding was there fore of a mo:1 momentous nature; affecting, ia its consequences, the comfort and situation in society of so many individuals thus circumstanced, and the rights of children emanating from such a state of things. This was a case not within the spirit of the law; no doubt as to its validity had been excited; if there had, an application would probably have been made to the legislature, and an Act passed to remedy it; but it was highly improper to resort to the legislature except in cases of urgent necessity. Nothing but the most imperious demand of judicial interpretation could induce the Court to hold such a marriage void, and it had no hesitation in saying, that all the legal requisites had been complied with. It had been truly said, that Courts must only interpret, not make laws; and meet, but not create doubts. The law did not require impossibilities; and it was therefore not to be presumed, that the legislature meant to introduce provisions leading to such a demand. There could be no bans in Newington, because
there was no divine service performed in the church. It could not be the intention of the law, that persons in this parish should not l<e married whilst the church was under repair; and they could not be married any where they pleased, the act specifying the particular places. What, then, was to be done? The Court was of opinion just what had been been done, for it was provided by the act that the bans, as to extraparochial places, should be published in the church or chapel adjoining to them; and under the particular situation of the church at this time, St. Mary; Newington, was to be considered as an extra - parochial place, and St. George's church in conseq\ience the proper place for publishing its bans. The publication in question was, therefore, a publication in Newington to all intents and purposes, and not in St. George's. It was so intended to be; it was entered in the bans'-book of St. Mary, Newington, signed as such, and an entiv made explanatory of the cause of the publication being in St. George's church. The parties throughout held it as a publication of bans in Newington, and the Court held it as such. If so, then Newington church became the proper pLce for the celebration of the marriage, for which it was not in an unfit state, though it was for the publication of bans, and the extra-parochiality (if the term might be allowed) did not extend beyond the publication. Under these circumstances, be was clearly of opinion that the marriage was not invalid, that neither the spirit nor the letter of the law had been violated j that the act had, in fact, provided
for such a case as the present; and that the publication of bans was sufficient, as, though done at St. George's!, it was to be considered as done at Newington.— Looking to the consequences that would result from an opposite construction of the law, they confirmed him in this opinion, though they were not the grounds of it. He therefore rejected the libel, and dismissed the party cited from the suit.
TheRight Hon. the Earl ofRese~ berry v. the Countess of Rosebcrry. This was a proceeding for a divorce, on the ground of adultery, committed by the Countess of Roseberry, with Sir Henry St. John Mildmay, Bart.
On the 30th of May, 1808, Lord Roseberry (then Viscount Primrose) was married to Harriett, his present Countess, a daughter of the Hon. Mr. Bouvcrie. In 1809, Sir Henry Mildmay married the elder sister of Lady Roseberry; and his younger brother,Mr. PaulctMildmay,subsequently married another sisteTi This family connection necessarily produced a great intimacy between Sir Henry Mildmay and Lord Roscbcrry's family; and on the death of lady Mildmay, in 1810, he remained with them for some time, daily receiving from them those affectionate attentions best calculated to alleviate his grief for the loss he had sustained. They had the desired effect; and Sir Henry returned to society from a retirement which has unliappilysince proved a source of the greatest unhappiness to this noble family. Lord and lady Roseberry were then living in the most uninterrupted state of domestic hap-piness;