The Revised Reports. VOL. XLIII. BEFORE THE JUDICIAL COMMITTEE ON APPEAL FROM THE ARCHES COURT OF CANTERBURY (1). MARY ANN TONGUE v. EDWARD TONGUE (2). (1 Moore, P. C. 90–98.) A marriage by banns, in the publication of which one of the Christian names of the man, a minor, was designedly concealed, and which was solemnized in the name so falsified; held void under the stat. 4 Geo. IV. c. 76, ss. 7, 22, the Judicial Committee being of opinion that the circumstance of the man omitting to sign his full Christian names in the register, indicated his participation in the previous false publication. EDWARD CROXALL TONGUE, being a minor of the age of 17 years, and Mary Ann Allen, a widow of the age of 35 years, were married by banns in the parish church of St. Michael, Bristol, on the 26th February, 1833. The banns were published on the three preceding Sundays, in the names of Edward Tongue, bachelor, and Mary Ann Allen, spinster, and the marriage was registered in the following form: (1) Present: the Vice-Chancellor, Mr. Baron Parke, Mr. Justice Bosanquet, and the Chief Judge of the Court of Bankruptcy. (2) Cited in the judgment of the Court, R. v. Rea (1872) L. R. 1 R.R.-VOL. XLIII. C. C. R. 365, 41 L. J. M. C. 92; and 1 1836. June 21. SHADWELL, [90] TONGUE v. TONGUE. Edward Tongue, of this parish, bachelor, and Mary Ann Allen, of this parish, spinster, were married in this church by banns, with consent of this twenty-sixth day of February, in the year one thousand eight hundred and thirty-three, [ *91 ] The marriage was clandestine, and without the knowledge or consent of the parents of the minor, who at the time was a pupil of Mr. William Cowan Atchison, the brother of Mrs. Allen. Mrs. Allen resided with her brother, and acted as his housekeeper in the management of his affairs, and in such capacity attended to his pupils. The minor was the eldest son of Edward Tongue, Esq., a gentleman possessed of considerable landed property: he was baptized by the names of Edward Croxall Tongue, and though known to some of the witnesses (two of whom were his schoolfellows) by the name of Croxall Tongue, or Tongue only, had never been known by the name of Edward Tongue. Sarah Haynes, the sexton of the parish church of St. Michael, one of the witnesses, who was present at the marriage, on her examination stated, that it was part of her business, after the clerk had entered the names and description, &c. of the parties whose banns were to be published in the banns-book, to file the paper from which he makes the entry, and put it away in the surplice-closet, in the vestry: the clerk makes the entry and she files the paper from which he makes it; he crosses the paper as entered, and then she puts it on the file, and she did so with the paper of notice for the marriage in question. She did not remember the publication of the banns in consequence of that notice particularly, but said she should not have been present at the marriage as she was, unless the banns had been regularly published and the parties out-asked: both the rector and the curate are very particular in examining the banns-book before a marriage takes place; they make the parties examine the v. TONGUE, [ *92 ] entry and see that their names are right, and their descriptions TONGUE right; and if there is any mistake and a licence necessary, the rector makes the clerk pay for it, and *that makes the clerk very particular; and so she was sure that with respect to this marriage, where the parties were married as Edward Tongue, bachelor, and Mary Ann Allen, spinster, that the banns were regularly published on the three Sundays stated in the bannsbook, and that they both of them before the ceremony was performed, inspected the entry in the banns-book, and acknowledged their names and descriptions as entered to be correct: of their ages she could say nothing, except that she remarked on going home to her daughter, that such boys as "Tongue" appeared to be, ought to be flogged instead of married, he appeared so young; and she had something occur in her own family, not long before, to make her say that, and remember it. It was not until the month of December, in the same year, that Mr. Tongue, the father, became acquainted with the circumstance 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 22nd 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. IV. 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 (1). From this decree Mrs. Tongue now appealed. (1) Reported in 1 Curtis, 38. *93] TONGUE v. TONGUE. [ *94 ] The King's Advocate (Sir John Dodson), and Platt, K. C. for the appellant: The question depends on the true construction of the last Marriage Act, 4 Geo. IV. c. 76. The 22nd 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 (1); Hadley v. Reynolds (2). Both parties must be conversant of the fraud: Rex v. Wroxton (3). 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 *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 (1) 3 Hagg. Rep. 332. (2) 4 Hagg. Rep. [There is no such case in 4 Hagg. Ecc. Rep.] (3) 38 R. R. 341 (4 B. & Ad. 640). [Qu. whether "conversant" in the text immediately above should not be "conusant."] |