same, together with his place of residence and the ground examined by of objection on which his caveat is founded, no licence judge. shall issue till the said caveat, or a true copy thereof, be transmitted to the judge out of whose office the licence is to issue, and until the judge has certified to the registrar that he has examined into the matter of the caveat, and is satisfied that it ought not to obstruct the grant of the licence for the said marriage, or until the caveat be withdrawn by the party who entered the same." taken before the surrogate as to certain particulars before licence is granted. Sect. 14. "Before any such licence be granted, one of Oath to be the parties shall personally swear before the surrogate, or other person having authority to grant the same, that he or she believeth that there is no impediment of kindred or alliance, or of any other lawful cause, nor any suit commenced in any ecclesiastical court (1), to bar or hinder the proceeding of the said matrimony according to the tenor of the said licence; and that one of the said parties hath, for the space of fifteen days immediately preceding such licence, had his or her usual place of abode within the parish or chapelry within which such marriage is to be solemnized; and where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, that the consent of the person or persons whose consent to such marriage is required under the provisions of this act hath been obtained thereto : provided always, that if there shall be no such person or persons having authority to give such consent, then, upon oath made to that effect by the party requiring such licence, it shall be lawful to grant such licence notwithstanding the want of any such consent." Sect. 15." It shall not be required of any person applying Bond not to for any such licence to give any caution or security, by be required before granting bond or otherwise, before such licence is granted; any licence. thing in any act or canon to the contrary thereof notwithstanding." office. Sect. 18. "No surrogate hereafter to be deputed by Surrogate to any ecclesiastical judge who hath power to grant licences, take oath of shall grant any such licence until he hath taken an oath before the said judge, or before a commissioner appointed by commission under the seal of the said judge, which commission the said judge is hereby authorized to issue, faithfully to execute his office according to law, to the best of his knowledge, and hath given security by his (1) See the curious case of the Prince of Capua, May 5, 1836, reported in the "Times." The Neapolitan ambassador entered a caveat against the licence for If marriages by licence be not solemnized within three months new licence to be obtained. Where marriage void. As to licence illegally granted. Effect of the 22nd section of 4 Geo. 4, c. 76, as to a licence ille gally granted. What consti tutes fraud in a licence, bond in the sum of one hundred pounds to the bishop of the diocese, for the due and faithful execution of his said office" (m). Sect. 19. "Whenever a marriage shall not be had within three months after the grant of a licence by any archbishop, bishop, or any ordinary or person having authority to grant such licence, no minister shall proceed to the solemnization of such marriage until a new licence shall have been obtained, unless by banns duly published according to the provisions of this act." By sect. 22, "If any person. ... 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. . . . the marriage of such persons shall be null and void to all intents and purposes whatsoever." In Balfour v. Carpenter (n), an article of an allega tion was admitted which pleaded that a licence granted by the Bishop of Winchester's commissary for Surrey would not be valid for a marriage contracted within the diocese of Winchester, but without the jurisdiction of the commissary of Surrey. Sir John Nicholl admitted this article, observing it was a new case, and that it was not clear from doubt, even if it were an invalid licence; for on the face of the act there would be a question whether a marriage would be void solemnized without fraud under a licence given by a person not having authority to grant the same: the point was not decided. unless In Dormer v. Williams, the marriage of parties under a licence from a person not having authority to grant the same was held not to be void by 4 Geo. 4, c. 76, both parties willingly and knowingly intermarry by such licence. In this case the libel was rejected (o). In another case Lord Stowell said, there may be such a fraud as will vitiate the licence in the description of persons, but the mere exaggeration of fortune and rank will not have that effect; that a man should represent himself of superior condition and expectations will not of itself invalidate a marriage, as the law expects that parties should use timely and effectual diligence in obtaining correct information on such points. It is perfectly established that (m) 3 Gco. 4, c. 75; 4 Geo. 4, cases without the consents re- (0) See 1 Curteis, 874. This was the first case which had arisen upon the construction of the 22nd section of 4 Geo. 4, c. 76. no disparity of fortune, or mistake as to the qualities of the person, will impeach the vinculum of marriage, and the mere description is not a constituent part of the affidavit. It appears that the true and proper name of “ Ewing" was written "Ewen" in the licence; that the man altered it as the parties were going together to church to the right spelling of that name; the original description was not so materially at variance with the true name as to make the licence, in the terms in which it was granted, invalid, and unless it was invalid before this alteration, it could not be considered as fraudulent to make the alteration; in licences the identity is the material circumstance to which the court principally looks. In banns it is the proclamation which is defective in the way of notice if there is any material variance. In the present case it is impossible to attach any fraudulent intention on this act (p). The same doctrine is laid down by the same high authority in Cope v. Burt (q), who also said, "there is no averment that a licence obtained in one name was transferred to another person; if that case should occur, and it should appear that a licence procured for one person was transferred to another, it might be a fraud which the court would be bound to notice." In Ewing v. Wheatley, Lord Stowell said, that the Duty of the clergyman, if he had been aware of the variation, might clergyman as to marrying properly have hesitated; and in Argar v. Holdsworth, by licence. Sir G. Lee said, "I was of opinion a licence was a legal authority for marriage, and that a minister was guilty of a breach of his duty who should refuse to marry pursuant to a proper licence from his ordinary; if Holdsworth had reason to believe the licence was obtained fraudulently, and only delayed to gain time for inquiry, that would be proper matter for his defence" (1). A suit of nullity of marriage, instituted by reason of Licence in imposition practised by the wife on the husband as to her false name. name and condition, the licence being in a false name, unknown to the husband, was not sustained, on the ground that there was error nominis only, and not error de persona; there was also no fraud proved as to obtaining the licence (s). In another case, B. and C., man and woman, both of full age, intending to marry, B., with the knowledge of (p) Ewing v. Wheatley, 2 Consist. 184. (q) 1 Consist. 438. (r) 2 Lee, 515; see also Sulli van v. Sullivan, 2 Consist. 253. (s) Clowes v. Jones f. c. Clowes (1842), 2 Notes of Cases, p. 1. Punishment C., in his statement to the surrogate, and affidavit in pursuance therewith, omitted one of C.'s names, gave her place of residence falsely, and falsely described his own residence and occupation, with the view, as was alleged, of fraudulently obtaining the licence from the surrogate. C. petitioned for a declaration of nullity, but the court held the marriage to be valid, and confirmed the distinction between banns and licences which had been adverted to in previous cases (t). But the party practising a fraud by which a licence is for false oath. obtained, that is, by swearing falsely in the affidavit which must precede the grant of the licence, is criminally punishable: thus A. was indicted for making a false oath before a surrogate, for the purpose of obtaining a marriage licence: Held, (1) That a surrogate has a general power to administer an oath in that behalf, so as to make a false oath a misdemeanor. (2) That such false oath is a misdemeanor, as being made with a fraudulent intention in a matter of public concern. (3) That it is immaterial whether the marriage actually took place or no. (4) Quære, whether such false oath be indictable as perjury (u). Special licence. 2. By 4 Geo. 4, c. 76, s. 20, it is provided that "Nothing hereinbefore contained shall be construed to extend to deprive the Archbishop of Canterbury and his successors, and his and their proper officers, of the right which hath hitherto been used, in virtue of a certain statute made in the 25th year of the reign of the late King Henry the Eighth, intituled An Act concerning Peterpence and Dispensations,' of granting special licence to marry at any convenient time or place.' By the statute 25 Hen. 8, c. 21, power is given to the Archbishop of Canterbury to grant faculties, dispensations, and licences, as the pope had done before (x).~ And by the same statute it is enacted, that all children procreated after solemnization of any marriages to be had by virtue of a licence or dispensation from the Archbishop of Canterbury, shall be admitted, reputed, and taken as legitimate in all courts and other places, and inherit the inheritance of their parents and ancestors (y). (t) Beavan f. c. M Mahon v. M'Mahon (1861), 2 Swa. & Tr. p. 230. (u) Reg. v. Chapman (1849), 1 Denison's C. C. R. 432. (c) Piers v. Piers, 2 H. L. Rep. 331. The Bishop of Sodor and Man seems to have power to grant a special licence in his diocese. (y) As to the proof of the grant of such a licence, see Doe d. Egremont v. Grazebrook, 4 Q. B. 406; 3 G. & D. 334. This reservation to the archbishop was similarly made. in 26 Geo. 2, c. 33; and has been preserved by 6 & 7 Will. 4, c. 85, s. 1. licence. By 24 & 25 Vict. c. 98, s. 35, "Whosoever shall forge Punishment or fraudulently alter any licence or certificate for marriage, for forgery of or shall offer, utter, dispose of or put off any such licence or certificate, knowing the same to be forged or fraudulently altered, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement." 3. As to marriages contracted under the authority of the Registrar's registrar's certificate, 6 & 7 Will. 4, c. 85, as modified by certificate. 19 & 20 Vict. c. 119, s. 6, enacts as follows: district. Sect. 4. "In every case of marriage intended to be Notice of every solemnized in England after the said first day of March, intended maraccording to the rites of the Church of England (unless given to the riage to be by licence or by special licence, or after publication of superintendent banns), and in every case of marriage intended to be solem- registrar of the nized in England after the said first day of March, according to the usages of the Quakers or Jews, or according to any form authorized by this act, one of the parties shall give notice under his or her hand, in the form of schedule (A.) to this act annexed, or to the like effect, to the superintendent registrar of the district (z) within which the parties shall have dwelt for not less than seven days then next preceding, or if the parties dwell in the districts of different superintendent registrars shall give the like notice to the superintendent registrar of one of such districts, and shall state therein the name and surname, and the profession or condition of each of the parties intending marriage, the dwelling-place of the party giving the notice, and the time not being less than seven days during which he or she has dwelt therein, and the church or other building in which the marriage is to be solemnized; provided that if either party shall have dwelt in the place stated in the notice during more than one calendar month, it may be stated therein that he or she hath dwelt there one month and upwards." (*) See the modifications of this provision as to districts, 3 & 4 Vict. c. 72, s. 1, which prevents certificates being granted for marriages in buildings out of the superintendent registrar's district except in special circumstances. |