1872 V. KENSIT. 66 V.-C. B. and when he gave such instructions for the publication of banns "in the names by which" they were afterwards married, he did GOMPERTZ SO," not considering or either thinking or believing" that he was doing anything wrong or acting contrary to law." Believed he gave the lady's address as of Tottenham Street (in which street Mr. Mawley lived), and presumed the parish clerk made a mistake. Plaintiff admitted that the marriage was a secret marriage, witnessed only by the pew-opener and another person. He further said: "I deny that I left out.... the other names of myself or wife with any fraudulent intent to avoid the discovery of the said intended marriage, but I did so for brevity's sake only; and I say that, so far from concealment of names, I was only too anxious to have a good and valid marriage." He then proceeded to depose that within two hours of the marriage he and his wife went to Mr. Mawley's house, who was very angry at first, but afterwards forgave them both. Afterwards Mr. Mawley "perused the marriage certificate, and noticed that we had not married in our full names, whereupon I said if it was not a perfectly good marriage, we would go through the ceremony again. He thereupon said he considered it sufficient." Mr. Mawley, however, wished the notice in the newspapers to appear with the full names; and this was caused to be done. In a further affidavit the Defendant Kensit said he believed that the Plaintiff, immediately before the marriage, was living with his parents in Chester Square, and not in Pitt Street. He believed also that Miss Harvey was not on a visit at Miss Hutchinson's, but was permanently residing there by the desire and at the cost of Mr. Mawley. Mr. Kay, Q.C., and Mr. T. A. Roberts, for the Plaintiff : The question turns upon the 22nd section of the Marriage Act of 1823 (4 Geo. 4, c. 76) (1). The Act does not say that all the names of the parties must be published when the banns are published; but it does (sect. 26) provide against a marriage being (1) Sect. 22:-" Provided always, and be it further enacted, that if any persons shall knowingly and wilfully intermarry... without due publication of banns... the marriages of such persons shall be null and void, to all intents and purposes whatsoever." invalidated through non-residence of the parties in the parishes wherein the banns were published (1). V.-C. B. 1872 v. In order to render a marriage invalid under the 22nd section, it GoMPERTZ must have been solemnized with a knowledge by both parties of the undue publication: Rex v. Inhabitants of Wroxton (2). A case that will be cited on the other side, to shew that where one party only gave the false instructions, the other party will be presumed to have had previous knowledge of, and to have joined in, the misrepresentation, is Tongue v. Allen (3), which was affirmed on appeal under the name of Tongue v. Tongue (4). But the distinction is, that in that case the Court treated it as quite clear that the woman "knowingly and wilfully" gave the incorrect information. Here the evidence is the other way. All evidence as to erroneous description of residence is excluded by the statute (sect. 26). The Defendant Kensit's error has been this: he supposes that a marriage, which has been solemnized, and acknowledged by everybody connected with the parties throughout its whole continuance, is, after the death of one of the parties, to be disposed of, like the signature to a bill of exchange, by proof of erroneous description. He has forgotten that the presumption in favour of a valid marriage is the strongest known to the law: Piers v. Piers (5). To invalidate the marriage, the misrepresentation must have been " knowingly and wilfully" made. As to the meaning of these words, Lord Tenterden, in Meirelles v. Banning (6), says they must be taken to denote acts done with a conscious mind that the party is doing wrong." The evidence disproves any guilty knowledge on the part of either. Both were desirous that they should be lawfully married. No doubt they wanted to have a secret marriage, and if the Court should go the length of holding, (1) Sect. 26:-" Provided always, and be it further enacted, that after the solemnization of any marriage under a publication of banns, it shall not be necessary in support of such marriage to give any proof of the actual dwelling of the parties in the respective parishes or chapelries wherein the banns of matri mony were published... nor shall any KENSIT. V.-C. B. 1872 on the evidence, that the husband did what he did in order to conceal all traces of the marriage, it is still necessary to shew the GOMPERTZ complicity of the wife. v. KENSIT. There is no direct evidence to shew in what words the banns. actually were published. Mr. Amphlett, Q.C., and Mr. Cecil Russell, for the Defendant Kensit : This was an illegal marriage. No doubt there is a strong presumption in favour of marriage, but it may be rebutted by undisputed facts. In this instance the banns were published and the ceremony performed with suppression of the ordinary name of the lady, and of two of the husband's names. No doubt "wilful and knowing" concealment by both parties must be shewn; but it has been argued as if it were necessary to shew wilful knowledge of wrong-doing. All that the Act requires is “wilful and knowing" misdescription. The dictum in Meirelles v. Banning (1) accordingly has no application. As to the necessity of proving the complicity of one of the parties, Tongue v. Tongue (2) sufficiently shews that it may be implied from the fact of the other party having signed the register with the name suppressed. It may be attempted to distinguish Tongue v. Tongue, on the ground that in that case it was the guardian who interfered and endeavoured to set aside the marriage. But that argument is disposed of by the remarks of Sir W. Scott, in Sullivan v. Sullivan (3), who says that it depends entirely on the circumstances whether the assent or non-assent of the guardian is of any impor tance. In Pouget v. Tomkins (4), which was under the old Act, misdescription of persons in the publication of banns was held fatal to the marriage. As to the husband's statement, that he did not know he was doing wrong, the Court must be asked to disbelieve it. With what motive can he be supposed to have omitted the names, except that of concealment ? As to the lady, the only piece of evidence against her is that she signed the register in an unusual way, (1) 2 B. & Ad. 909, 915. (3) 2 Hagg. Consist. 241. V.-C. B. 1872 omitting the name she was best known by. But it is remarkable that she omitted the same name in signing as the husband omitted in giving the instructions; and that was held in Tongue v. Tongue (1) GOMPERTZ to be sufficient to lead to the presumption of knowledge of misrepresentation. The VICE-CHANCELLOR :-If, as you say, a fraud upon this Act of Parliament has been committed, the husband was guilty of a misdemeanour. Then must not the evidence against him be proved as strictly as if we were now trying a case of misdemeanour ? Mr. Russell:-The Plaintiff comes to the Defendant for this property; he is required to prove his title; the onus of proving it is on him. In attempting to do this he refers the Defendant to the register; and this certificate is brought forward, being a document which, on the face of it, may relate to the marriage of two other persons than the Plaintiff and his late wife. A person who produces such a document as this is bound to explain it; otherwise a husband has only to hold his tongue in order to defeat an Act of Parliament. But he does admit he is bound to explain, for he attempts to do so. No doubt, Pouget v. Tomkins (2) was under the old Act, under which a misdescription ipso facto avoided a marriage; and this hardship was relieved against by the statute of 1823, which requires proof to be given of knowing and wilful misrepresentation. Do not the circumstances here amount to this? Was not their conduct a fraud upon the statute? There is nothing in the statute to say that the subsequent assent of the guardian removes the objection. Upon the whole, this is a case precisely within the mischief the Act of Parliament was intended to prevent. Mr. Woodroffe, for the Defendant Murphy, asked for his costs. Mr. Kay, in reply :— The strong presumption in favour of this marriage, arising from more than twenty-four years of unchallenged repute during the whole of the wife's life, and for some time afterwards, sufficiently distinguishes this case from Tongue v. Tongue and Pouget v. (2) 2 Hagg. Consist. 142. (1) 1 Moo. P. C. 90. v. KENSIT. V.-C. B. 1872 GOMPERTZ v. KENSIT. Tomkins (1), which were cases of gross fraud. In such a state of circumstances the same rules of evidence do not apply. Mr. Kensit is bound to prove his case, and he brings nothing to contradict the testimony of the Plaintiff, who swears that he had no intention of committing any fraud whatever. Every one is familiar with the practice of dropping a superfluous name for the sake of brevity. SIR JAMES BACON, V.C.: This case is a very singular one. For more than twenty-four years two persons, who were married in 1841, lived together and were reputed to be husband and wife, not less by the Defendant Mr. Kensit than by any one else. The presumption in favour of such a marriage is very strong; but like every other presumption, it is capable of being rebutted by facts, if such there are. Mr. Kensit undertakes to rebut this presumption. He says that the marriage was celebrated "without due publication of banns." The only evidence which he brings forward in support of this statement appears from his own answer. He says he has obtained a certified copy of the register of the marriage, from which it appears that the names of the parties married were Frederick Gompertz and Adelaide Harvey, whereas the parties who went through the ceremony were named William Frederick Louis Gompertz and Georgiana Adelaide Harvey; and that they were married by banns. Mr. Kensit says, further, that he has obtained a copy of the entry in the register of banns (which I suppose relates to the days on which the publication was made), in which the parties are also described, as above, each by two names only. The banns appear to have been published in church on the three days which the law requires; and the marriage took place. Of the names in which the publication itself was made, there is no evidence. In that state of things, after the expiration of now more than thirty years, the Court is asked to put in force the provisions of the Act of the 4 Geo. 4, c. 76, by which it is enacted that “if any persons shall knowingly and wilfully intermarry without due publication of banns," the marriage shall be "null and void to all intents and purposes." (1) 2 Hagg. Consist. 142. |