1862.

LEVERSON

บ.

SCHWA-
BACHER.

which way
it stood. The defendant, on his arrival in this
country, had called upon the plaintiff with reference to
the account, and the plaintiff then claimed payment of a
balance alleged to be due. On the following day, while
the defendant was dining with his wife and friends at his
lodgings, the plaintiff, who had in the meantime procured
a capias, called with a sheriff's officer, and arrested the
defendant for a debt of 1607. The defendant, in order to
save himself from imprisonment, offered the two emeralds
in question, worth upwards of 3001., as a pledge for the
settlement of the claim made by plaintiff; but the plaintiff
insisted on having them in satisfaction, and drew out an
invoice, which he required the defendant to sign. The
defendant was then released, and the plaintiff retired with
the emeralds and the invoice signed by the defendant.

A summons was afterwards taken out, and supported by H. F. Gibbons.

On the other side, it was objected that the Judge had no jurisdiction to make any order.

KEATING, J., said:-If I have no jurisdiction, my order is of no avail; but I should be sorry to think that I have none in a case of this kind. It is clear that property of great value has been obtained by the plaintiff by an improper use of the process of the Court (a), and I think I ought to make the order as required, for it cannot be said that the plaintiff is any way damnified by the course proposed, for he has all the benefit which he ought to have had from the capias.

Order, therefore, for the emeralds and paper to be delivered up within twelve hours after payment of money into Court.

(a) That the Judges of the Superior Courts have ample power to make such orders as may be neces

sary to prevent abuse of process, vide Cocker v. Tempest, 7 M. & W. 502, and other cases cited ante, p. 102.

Central Criminal Court, coram Crompton, J.

QUEEN v. WILSON.

1862.

June Session.

ment for

cohabitation

BIGAMY. The indictment alleged that the defendant On an indictwas married on the 22nd of August, 1848, at the parish bigamy, eviof Brentwood, to one Jonathan Gotobed, and that she dence of the afterwards, to wit, on the 20th of January, 1858, was of the first married at St. Pancras to William Langham Lehunte another woman, Hazelrigge Wilson, her husband, Jonathan Gotobed being wife, before the his reputed

at that time alive.

The defendant pleaded "not guilty."

Metcalfe and Carter for the prosecution.

Ballantine, Serjt., and Giffard for the defence.

husband with

time of his marriage with the defendant, and of such reputed wife being alive after that mar

riage:- Held,

evidence

riage to war

acquittal.

A certificate was then put in, by which it appeared that to be sufficient on the 22nd of August, 1848, the prisoner was married to of a prior marJonathan Gotobed, at St. Helen's Chapel, Brentwood, rant an Essex, according to the forms of the Roman Catholic Church. The defendant was described as Barbara Catherine Morris, of full age, spinster, and Gotobed was described as a bachelor.

Mr. W. Smith said,-I am a corn merchant, and I was acquainted with Jonathan Gotobed before his marriage in 1848. I knew the defendant and her family before she was married, and after the marriage took place they both used to visit at the house of a friend of mine, and they passed as man and wife. I saw Gotobed three or four months ago at the police court.

Cross-examined.-I heard that in 1842 or 1843 Gotobed was in Canada. The defendant's family lived at Brentwood, in Essex. The defendant was quite a young woman. when she was married to Gotobed, but I am not aware that she was only sixteen years old.

The second marriage certificate was then put in evidence, and it appeared by it that the defendant, by the names of

1862.

QUEEN

บ.

WILSON.

Barbara Catherine Howard Gotobed Gordon, and who was described as a widow, was married to William Langham Lehunte Hazelrigge Wilson by special licence, at St. Pancras Church, on the 12th of January, 1858.

Frances Anne Earle said,-I became acquainted with the defendant in the beginning of the year 1858. About that time I heard that she was going to be married to Captain Wilson. I remember upon one occasion that her sister said to her, when the marriage with Captain Wilson was talked about, "What will you do with Jonathan?" The defendant replied, "He is all right, he is in Canada." After the defendant was married to Captain Wilson, I remember being out once with the defendant and Captain Wilson, and we met Gotobed, the defendant's first husband, and from something that occurred, Captain Wilson was induced to ask who he was, and the defendant replied that he was an old admirer of hers; and she then turned aside to me, and said that he was her first husband. She said this to me in a tone that could not be heard by the captain.

An acolyte at the chapel at Brentwood, at which the defendant was married in 1848, identified her as the lady who was so married to Gotobed; and he also stated that he had seen the latter within the last few months.

This was the case for the prosecution.

Ballantine, Serjt., for the defence, stated that the real facts of the case were, that the defendant had married, when very young, this man Gotobed; but very soon after the marriage she found that he was in the habit of passing by different names, and she suspected that something was wrong. She subsequently accompanied him to Canada, and she then speedily discovered that he was married in 1842, or about that time, to another woman, and that his wife was alive. The moment she ascertained the fact of his previous marriage she left him, and returned to this country, where she afterwards was married to Captain Wilson. Since the

trial the defendant had gone to Canada, in order to procure the necessary evidence to establish the fact that her first husband, Gotobed, was a married man at the time he went through the ceremony of marriage with her, and she had succeeded in procuring evidence that Gotobed was married in that country previously to his marriage with her, and that his first wife was alive when that marriage took place. This would be a complete answer to the present charge.

The following evidence was then adduced for the defence :

Mrs. Harriet Allwood deposed that she had been companion to the defendant during the last twelve months, and she was at Bow Street police court when Mr. Gotobed was put forward as her first husband. She afterwards saw the same person at another place, and pointed him. out to a Mr. Maugham. She believed that at this time Mr. Gotobed went by the name of Gee.

Cross-examined.-Witness was acquainted with the defendant when she and Gotobed lived together as man and wife. They went together to Canada very shortly after the marriage. She had known Gotobed a great many years. He went to Canada in 1837, and returned to England in 1846. He was a builder by trade. He had gone by the name of Gee since his return to England, and she had also known him go by the name of Gotobeed, and not Gotobed.

Mr. Nicholas Maugham deposed that he was a builder, carrying on business at Eglinton, Canada West, and he had come over to this country to give evidence for the defendant at her request. He remembered accompanying the last witness to a place where a person was pointed out to him as Mr. Gee. He had known that person in 1837, at a place about four miles from Toronto, in Canada. At that time he went by the name of Brown. He lived at this place about four years, but he was absent for a short time, and witness understood that he went to Kingston.

1862.

QUEEN

บ.

WILSON.

1862.

QUEEN

v.

WILSON.

He was gone about two years, but certainly before the year 1843, and when he returned he told witness that he had brought a wife with him, and a lady accompanied him, whom he treated as his wife, and every one else regarded her in that capacity (a). Her name was Margaret. Witness made a cradle for a baby that was born while Brown or Gotobed and this lady lived together. He went away from Canada in the fall of 1845, leaving the lady behind, and witness believed that she was not aware that he intended going away, and she was left in a destitute condition. To the best of witness's recollection, the wife did not stay more than a fortnight after her husband left. Her name before her marriage was Margaret Guy, and he last heard of this person being alive in 1851.

CROMPTON, J., here interposed, and addressing the learned counsel for the prosecution, inquired whether, after the evidence of the last witness, he felt that he ought to carry the case any further. There was evidence of a prior marriage to the one that was the subject of charge (a), and the lady was proved to have been alive in 1851, after Gotobed or Brown had married the defendant; and, although there might be some technical difficulty in proving the marriage in Canada, still, if there was reasonable doubt of the fact, the defendant ought to be absolved from a charge like the present.

(a) It was long ago settled that, in some cases, a marriage may be presumed from cohabitation and general reputation in favor of an innocent third party (see Doe d. Fleming v. Fleming, 4 Bing. 266); and even where the action is against the person or persons whose marriage is to be presumed, to recover upon contracts of the wife, &c., the presumption being in favor of morality (see Evans v. Morgan, 2 C. & J. 456); and where the action is only against the alleged husband,

it is also on the principle of estoppel (Ryans v. Sams, 12 Q. B. Rep. 460). When, in a case of bigamy, it is the prisoner's marriage which is to be proved on the part of the prosecution, of course, as a crime cannot be presumed, evidence of a legal marriage is necessary; R. v. Flaherty, 2 C. & K. 782. But where it is, as in the present case, a previous marriage to be proved by the prisoner as matter of defence, the prisoner is in the position of an innocent third party.