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II. Of the Venue-Declaration-Plea.

THIS is a transitory action; and, consequently, the venue may be laid in any county, subject, however, to being changed, upon the usual affidavit, that the whole cause of action arose in another county, and not elsewhere out of such other county. Although the marriage be a material inducement to the right of the plaintiff, to maintain the action in respect to the trespass on the wife, yet it forms no part of the cause of action: the trespass committed on the wife constitutes the whole cause of action.

The declaration in this action is very concise; in substance it is as follows: viz. that the defendant, with force and arms, made an assault on the wife of the plaintiff, and debauched and carnally knew her, whereby the plaintiff wholly lost and was deprived of the comfort, society, and fellowship of his wife, and of her aid and assistance in his domestic affairs, and other lawful business.

The general issue in this action is, not guilty.

The statute of limitations (8) may be pleaded in bar of this action; but the gist of the action being the injury sustained by the husband in consequence of the adultery, the proper plea under that statute is, not guilty within six years'.

In a late case where the plaintiff complained" of a plea of trespass, that the defendant with force and arms assaulted and seduced the plaintiff's wife, per quod consortium amisit, &c. contra pacem, &c." and the defendant pleaded not guilty within six years; on general demurrer, a question arose, whether the action was trespass or case. Cooke v. Sayer

k Guard v. Hodge, 10 East, 32.
1 Cooke v. Sayer, 6 East's Rep. 389.
2 Burr. 753. Bull. N. P. 28.

m Macfadzen v. Olivant, 6 East's Rep. 387.

(8) By stat. 21 Jac. 1. c. 16. s. 3. all actions on the case (other than for slander) must be commenced and sued within six years next after the cause of such action; and actions of trespass, of assault, battery, wounding, and imprisonment, within four years. It appears, from the language of the court in Cooke v. Sayer, 6 East's R. 388. that they considered the action for adultery as falling within the former description of actions, and consequently that the limitation of time was six years.

was cited. Lord Ellenborough C. J. said, it might be material to consider that point, if the question were, whether the limitation of six or four years only applied to this case; but the defendant having taken the longer period, and pleaded not guilty within six years, that of course must include not guilty within four years, and the plea not having been specially demurred to, was therefore good in either way of considering it; he added further, that he did not know what his opinion would have been if the point had then first arisen; but it having been considered in Cooke v. Sayer, as an action on the case, he should be inclined so to consider it. Lawrence J. cited the case of Parker v. Ironfield, in which Buller J. had considered an action of a similar nature for the seduction of a daughter, per quod servitium amisit, as an action on the case. Le Blanc J. did not give any opinion as to this point; but observed, that the action before the court, be it either case or trespass, was within the statute of limitations; therefore, in either way of considering it, the plea was a good bar [not being specially demurred to].

III. Of the Evidence, and herein of the Marriage Act, 26 G. 2. c. 33.

IN other actions, evidence of cohabitation, general reputation, acknowledgment of the parties, and reception by their friends, is sufficient to establish the relation of husband and wife. But in this action, in order that it may not be converted to bad purposes, by persons giving the name and character of wife to women to whom they are not married, it has been holden to be indispensably necessary for the plaintiff to prove the marriage ceremony having been performed, either by the testimony of some person who was present at the marriage, or by the production of the register, or of an examined copy thereof".

Such strictness being required as to the proof of marriage in this action, it will be necessary to make some remarks touching marriage in general, in order that the reader may apprised of the solemnities which the law deems essential to constitute a valid marriage.

be

A Morris v.

Miller, 4 Burr. 2057. and

Bull. N. P. 27. and per Lord Mans

field, C. J. in Birt v. Barlow, Doug. 174. S. P.

At the common law, any contract made per verba de præ• senti, or in words of the present, or in case of cohabitation, per verba de futuro also, between persons able to contract, was deemed a valid marriage to many purposes, and the parties might have been compelled in the spiritual courts to celebrate it in facie ecclesia. In order to constitute a valid marriage, before the marriage act, it appears to have been wholly immaterial whether the ceremony was performed by a protestant or a Roman catholic priest, in a private lodging or a public chapel. In the case of the King v. Fielding, 5 St. Tr. 614. the marriage ceremony was performed in a private lodging by a Roman catholic priest, in the year 1705; and upon evidence that the prisoner, in answer to the question whether he would have the woman for his wedded wife, said that he would; and that the woman answered affirmatively to the question put to her, whether she would have Mr. Fielding for her husband; Mr. Justice Powel, upon a question of felony, considered it as a marriage contracted per verba de præsenti; in like manner as it was considered by Lord Holt in Jesson v. Collins, Salk. 487. and 6 Mod. 155. See further on this subject R. v. Brampton, post n. (15). It appears doubtful, whether, at the common law, it was necessary that the ceremony should have been performed by a person in holy orders; (see the argument in R. v. Luffington, 1 Burr. S. C. 232. and some remarks on this point, I Bl. Com. 439.) certainly the ecclesiastical law required it, and if a husband demanded a right in the ecclesiastical court, which was only due to him by the ecclesiastical law, it was necessary for him to prove in that court, that he had been married by a person in holy orders. Haydon v. Gould, Salk. 119. Having endeavoured to explain the rules of law which prevailed, prior to the marriage act, it becomes necessary to set forth the provisions of that important statute, in order that the reader may obtain an accurate knowledge of the alterations, which have been made in the law on this subject.

From the preamble of this statute (sometimes termed Lord Hardwicke's Act, but more frequently the marriage act) it appears to have been made for the purpose of preventing the mischiefs and inconveniences, which had arisen from clandestine marriages. The provisions are as follow:

First, all banns shall be published in the parish church, or in a public chapel in which banns have been usually pub

• See R. v. Inhabitants of Brampton, p Stat. 26 Geo. 2. c. 83. 4 8.1.

10 East, 283.

lished (9), belonging to the parish or chapelry wherein the persons to be married reside, upon three Sundays preceding the marriage; and if the parties dwell in different parishes or chapelries, then the banns are to be published in the

(9) Upon these words a question arose, in the year 1781, whether this statute was to be construed to mean such chapels, wherein banns were usually published at the time when the marriage in question took place, or such chapels only as existed at the time of passing the act. The Court of King's Bench were of opinion, that the legislature clearly meant chapels existing at the time of the act; and, consequently, that a marriage, celebrated in a chapel erected since the statute 26 Geo. 2. c. 33. was void, although banns had been frequently published there, and marriages de facto celebrated there previously to the marriage in question. R. v. Inhabitants of Northfield, Doug. 658. As soon as the determination of the court in this case was known, Lord Beauchamp introduced a bill into parliament, which passed into a law, for making all marriages, which had been celebrated in any parish church or public chapel, erected since stat. 26 Geo. 2. c. 33. and consecrated, valid in law, and to exempt the clergymen, who had celebrated such marriages, from the penalties of that statute. Vide 21 Geo. 3. c. 53. The operation of the stat. 21 Geo. 3. c. 53. not being prospective, a similar provision was made by stat. 44 Geo. 3. c. 77. in respect of marriages solemnized before the 25th of March, 1805, in any church or public chapel in England, &c. erected since the making the statute 26 Geo. 2. and consecrated; and in like manner as by the last-mentioned act (21 G. 3. c. 53. s. 3.) registers of these marriages or copies thereof are to be received in evidence in courts of law and equity: provided, that in all such courts the same objections shall be available to the receiving such registers or copies in evidence, as would have been available to the receiving the same as evidence, if such registers or copies had related to marriages solemnized in parish churches or public chapels, in which banns were usually published before or at the time of passing the act 26 G. 2. by stat, 48 G. 3. c. 127. the same provisions have been made in respect of marriages solemnized before August, 23d, 1808, in any church, &c. with this farther enactment, "that the registers of all marriages solemnized in any public chapels, thereby enacted to be valid, shall, within thirty days next after the 23d of August, 1808, be removed to the parish church of the parish in which such chapel shall be situated; and, in case such chapel shall be situated in an extra-parochial place, then to the parish church next adjoining, to be kept with the marriage registers of such parish, and in like manner as parish registers are directed to be kept by stat. 26 Geo. 2.; and within 12 months after the removal of such registers to such parish churches respectively, two copies thereof respectively shall be transmitted by the respective churchwardens of such parishes to the bishop of the diocese, or his chancellor, subscribed by

And

church or chapel belonging to the parish or chapelry, where in each of the persons dwell; if both or either dwell in an extra-parochial place having no church or chapel, then the banns are to be published in a church or chapel belonging to the adjoining parish, and in such case the clergyman shall certify the publication in the same manner as if either of the parties dwelt in such parish; and, further, it is required, that the marriage shall be solemnized in one of the parish churches or chapels, where the banns have been published.

Notice shall be given' to the minister, of the names, places of abode within the parish, &c. and time of residence there, of the parties seven days before the publication of the banns; otherwise the minister shall not be obliged to publish them.

No minister shall be punishable by ecclesiastical censures for solemnizing marriages, where both or one of the parties are under 21, after banns published, if the parents or guardians (whose consent is required by law) do not give notice of their dissent; if, however, such parents or guardians, or one of them, publicly declare their dissent at the time of publication, then the banns will be void.

Licences shall be granted to solemnize marriages in the church or chapel of the parish or chapelry only, within which the usual place of abode of one of the parties shall have been for four weeks before the marriage; or where both or either of the parties dwell in an extra-parochial place, then in the church or chapel of the adjoining parish or chapelry (10). N. Parishes, having no parish church or

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the hands of the minister and churchwardens, to the end that the same may be faithfully preserved in the registry of the bishop.”

N. In cases where the marriage has been solemnized in a chapel, the plaintiff ought to be prepared with the registers and other evidence, to show that banns are and have been usually published there; in order to found a presumption, that it is a chapel in which marriages may be lawfully solemnized according to the provisions of the marriage act. But in Taunton v. Wyborn, 2 Camp. N. P. C. 297. it was holden prima facie sufficient for this purpose to produce an old register of marriages solemnized in the chapel before the passing of the marriage act, and a register of banns published there since, and to prove, by living witnesses, that marriages had been solemnized and banns published there of late years.

(10) Notwithstanding the provisions in the 2d section, and in this section, as to the residence of the parties, it is to be observed, that

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