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opinion, that the prisoner was not guilty of felo:y, though the detainer under which he was in custody was collusive. Mitchell's case, 1 Lewin, C. C. 20; 4C. and P. 251 (a).
It is observed by Mr. Cooke (B. L. 435, 8th ed.), that should the bankrupt be abroad at the time of the commission taken out, and not hear of it till the last day for his surrender is expired, it is impossible to imagine that the act should extend to such a case ; and indeed, Lord Hardwicke expresses his opinion (1 Ves. 222,) that particular circumstances might amount to a defence upon a criminal prosecution.
The bankrupt is not guilty of a concealment until he has passed his last examination. Until that time he has a locus penitentiæ, and although he may previously have concealed the property, he may yet deliver it up before the conclusion of his examination. Walters's case, 5 C. and P. 133 (6)
If on his examination the bankrupt refer to a document, as containing a full and true discovery of his estate and effects, it is incumbent on the prosecutor to produce that book or to account for its non-production; for otherwise it cannot be known whether the effects have been concealed or not. Evani's case, 1 Moody, C. C. 70 (c).
It is not necessary that the concealment should have been effected by the hands of the prisoner himself, or that he should be shown to have been in the actual possession of the goods concealed, after the issuing of the commission; it is sufficient if another person, having the possession of the effects as the agent of the prisoner, and holding them subject to his control, is the instrument of the concealment. See Evani's case, 1 Moody, C. C. 74 (d).
*The evidence of the concealment, and of the guilty intent with [ *274 ) which the act is done, ought to be very satisfactorily made out, but in general it is so clear as to leave little doubt on the point. Concealment of goods in the houses of neighbors or of associates, or in secret places in the bankrupt's own house, or sending them away in the night, endeavoring to escape abroad with part of his effects, &c., constitute the usual proofs in cases of this description.. See Alison, Principles Cr. Law of Scotland, 571.
It has been held by the court of review, (Sir J. Cross, diss.) that a bankrupt who has passed his last examination may be called upon to answer questions touching the concealment of his effects. In re Smith, Mont. and B. 203; 2 Deac. and Chit. 230, and see ex parte Heath, M, and B. 184; 2 Deac. and Chit. 214.
Proof of the value of the effects. Where the prosecution is on the ground of concealing effects, it must be proved that those effects were of the value of 101., and where the value is attached to all the articles collectively, as “one table, six chairs, and one carpet, of the value of 101, and upwards,” it is necessary to make out the offence as to every one of the articles, for the grand jury have only ascribed the value to all the articles collectively. Forsyth's case, Russ. and Ry. 274 (e). 2 Russ. 251.
Proof of intent to defraud.] Lastly, the prosecutor must prove the intent of the bankrupt to defraud his creditors. This will in general appear from the whole circumstances of the case. Evidence of it may likewise be gathered from the declarations of the prisoner. Vide ante, p. 273.
(6) Eng. Com. L. Rep. xix. 370. (b) Id. xxiv. 246. (6) 2 Eng. C. C. 70. (d) 1 Ibid. 74.
(c) 1 Ibid. 274.
A barrator is defined to be a common mover, exciter or maintainer of suits or quarrels either in courts or in the country, and it is said not to be material, whether the courts be of record or not, or whether such quarrels relate to a disputed title or possession, or not; but that all kinds of disturbances of the peace, and the spreading of false rumors and calumnies, whereby discord and disquiet may grow amongst neighbors, are as proper instances of barratry as the taking or keeping possession of lands in controversy. But a man is not a barrator in respect of any number of false actions brought by him in his own right, unless, as it seems, such actions should be entirely groundless and vexatious, without any manner of color. Nor is an attorney a barrator, in respect of his maintaining his client in a groundless action, to the commencement of which he was in no way privy. Hawk. P. C. b. 1, c. 81, s. 1, 2, 3, 4; 1 Russell, 185. [ *275] *Barratry is a cumulative offence, and the party must be charged as a common barrator. It is, therefore, insufficient to prove the commission of one act only. Hawk. P. C. b. 1, c. 81, s. 5.
For this reason the prosecutor is bound, before the trial, to give the defendant a note of the particular acts of barratry intended to be insisted on, without which the trial will not be permitted to proceed. Ibid. s. 13. The prosecution will be confined by these particulars. Goddard v. Smith, 6 Mod. 262 (1).
The punishment of this offence is fine and imprisonment, and being held to good behavior. Hawk. P. C. b. 1, c. 81, s. 14.
Former law, and 9 Geo. 4, c. 31 275 | Proof of Marriages in Ireland
284 Proof of the marriages
285 In general
287 Marriages in England
288 By banng
In houses of ambassadors 289 By license-minors 281 | Venue
289 Under the 6 and 7 Wm. 4, c. 85 282 Proof for the prisoner under the excepMarriages in Scotland 282 tions in the Marriage Act
Former law, and 9 Geo. 4, c. 31.) The offence of biganıy was origi
(1) State o. Chitty, 1 Bailey, 379. Commonwealth, v. Cooper, 15 Mass. 187. Comm. o. Davis, 11 Pick. 434. 1 Russell, C. & M. 185 & Seq. B. 2. ch. 23. 3 Am. Ed.
nally only of Ecclesiastical cognizance, but was made a felony by the 1 Jac. 1, c. 11. By the second section of that statute, it was provided that the act should not extend to any person or persons whose husband or wife should be continually remaining beyond the seas, by the space of seven years together, or whose husband or wife should absent him or herself, the one from the other, by the space of seven years together, in any parts within his Majesty's dominions; the one of them not knowing the other of them to be living within that time. By section 3, it was provided, that the act should not extend to any person or persons that are, be *at the time of such marriage divorced by any sentence in the ( *276 ] Ecclesiastical Court, or to any person or persons where the former marriage shall be by sentence in the Ecclesiastical Court declared to be void, and of no effect, nor to any person or persons in or by reason of any former marriage, had or made within age of consent.
By the 35 Geo. 3, c. 67, persons guilty of bigamy were made liable to the same punishment as persons convicted of fraud or petit larceny.
By the 9 Geo. 4, c. 31, both the above statutes were repealed, and other provisions substituted in their place.
By that statute, s. 22, it is enacted, "that if any person being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere ; every such 'offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned with or without hard labor, in the common gaol or house of correction, for any term not exceeding two years ; and any such offence may be dealt with, inquired of, tried, determined, and punished in the county where the offender shall be apprehended, or be in custody, as if the offence had been actually committed in that county. Provided always, that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his Majesty ; or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past ; and shall not have been known by such person to be living within that time, or shall extend to any person who at the time of such marriage shall have been divorced from the bond of such first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.”
Upon an indictment for bigamy, the prosecutor must prove-1. the prisoner's first marriage ; 2. the prisoner's second marriage ; 3. that his first wife was alive at the time of the second marriage ; and 4. that the second marriage took place either in the county in which he is tried, or that in which he was apprehended, or is in custody (1).
Proof of the marriages—in general.] The prosecutor must prove the two marriages, and it is sufficient if he prove a voidable marriage. Jacob's case, 1 Moody, C. C. 140 (a), stated post, 235.
But if either of the marriages, or at all events, the first marriage (vide post, p. 279,) be void, an indictment for bigamy cannot be sustained.
(1) 1 Wheeler's C. C.117.
(a) 2 Eng. C. C. 140.
Thus, if a woman marry A., and in the life-time of A. marry B., and after the death of A., and whilst B. is alivé, inarry C., she cannot be indicted for bigamy in her marriage with C., because her marriage with B. was a mere nullity. Hale, P. C. 693.
Although it was formerly held that the marriage of an idiot was valid, yet, according to modern determinations, the marriage of a lunatic, not í *277 ] in a lucid interval, is void. 1 Bl. Com. 438, 139; *1 Russell, 206. And by stat. 15 Geo. 2, c. 30, if persons found lunatics under a commission, or committed to the care of trustees by any act of parliament, marry
before they are declared of sound mind by the Lord Chancellor, or the majority of such trustees, the marriage shall be totally void.
It was held, under a former law, that where the second marriage was contracted in Ireland, or abroad, it was not bigamy, on the ground that that marriage which aloue constituted the offence was a fact done in another jurisdiction, and though inquirable here for some purposes, like all transitory acts, was not as a crime cognizable by the rules of the common law,
1 Hale, P. C. 692; 1 East, P. C. 465; 1 Russell, 183. But now, by the 9 Geo. 4, c. 31, s. 22, the offence is the same, whether the second marriage shall take place in England or elsewhere.
The identity of the parties named in the indictment must be proved. Upon an indictment for bigamy, it was proved by a person who was present at the prisoner's second marriage, that the woman was married to him by the name of Hannah Wilkinson, the name laid in the indictment, but there was no other proof that the woman in question was Hannah Wilkinson. Parke, J., held the proof to be insufficient, and directed an acquittal. He subsequently expressed a decided opinion that he was right; and added, that to make the evidence sufficient, there should have been proof that the prisoner“ was then and there married to a certain woman by the name of, and who called herself Hannah Wilkinson," because the indictment undertakes that a Hannah Wilkinson was the person, whereas, in fact, there was no proof that she had ever before gone by that name, and if the banns had been published in a name which was not her own, and which she had never gone by, the marriage would be invalid. Drake's
I Lew. C. C. 25. After proof of the first marriage, the second wife is a competent witness, for then it appears that the second marriage was void. B. N. P. 287; 1 East, P. C. 469, ante, p. 137.
The form and validity of marriages will now be considered under the following heads ;-marriages in England-marriages in Scotland-marriages in Ireland-marriages abroad-marriages abroad in British factories—marriages abroad in British colonies—marriages abroad in houses of embassadors (1).
Proof of the marriages-marriage in England.] Where the marriage has taken place in England, it may be proved by a person who was present at the ceremony, and who can speak to the identity of the par
(1) In those of the United States, where there are no marriage acts, consent alone by words de præsenti, or by words de futuro, followed by a cohabitation make a valid marriage. Milford o. Worcester, 7 Mass. 48. Londonderry o. Chester, 2 N. H. 267, 268. Cheseldine r. Brewer, 1 H. & McH. 152. Fenton v. Reed, 4 Johns. 22. Benton v. Benton, 1 Day, 111. Hantz o. Sealy, 6 Binn. 405. Dumarsely r. Fishby, 2 Marsh. 370.
ties, and it is not necessary to give evidence either of the registration of the marriage, or of any license, or of any publication of banns. Alison's case, Russ. and Ry. 109 (a). The usual evidence is a copy of the register, with proof of the identity of the parties.
By the act for registering births, deaths, and marriages in England, 6 and 7 Wm. 4, c. 86, s. 35, every rector, &c. and persons having the keeping of any register book, shall permit search and give certified copies of any entries therein. And by s. 38, certified copies *of entries, [ *278 ) purporting to be sealed or stamped with the seal of the General Register Office, established by the act, are to be received in evidence of the birth, death, or marriage to which they relate, without any further or other proof of such entries.
Whether an acknowledgment of his marriage by the prisoner will be sufficient evidence against him in a case of bigamy, does not appear to have been solemnly determined. Some of the judges in Truman's case, (1 East, P. C. 471, post, p. 280,) thought that such acknowledgment alone was sufficient, and strong reasons were given by them in support of that opinion. “ With respect to such evidence,” says Mr. East, " it may be difficult to say, that it is not evidence to go to the jury like the acknowledgment of any other matter in pais, where it is made by a party to his own prejudice. But it must be admitted, that it may, under circumstances, be entitled to little or no weight, for such acknowledgments made without consideration of the consequences, and palpably for other purposes at the time, are scarcely deserving of that name in the sense in which acknowledgments are received as evidence, more especially, if made before the second marriage, or upon occasions where in truth they cannot be said to be to the party's own prejudice, nor so conceived by him at the time.” 1 East, P. C. 471. These observations have been adopted by Mr. Serj. Russell. 1 Russell, 207 (n.) (1).
The marriages of Jews and Quakers are excepted out of the 4 Geo. 4, c. 76, and see the 6 and 7 Wm. 4, c. 85, s. 2, post, 282.
Where it was proposed to prove a Jewish marriage by calling witnesses who were present at the ceremony in the synagogue, it was objected that such ceremony was only the ratification of a previous contract in writing, and the contract was accordingly produced and proved. Horne v. Noel, i Campb. 61; and see Lindo v. Belisario, 1 Hagg. 225, 247(6), Appx. p. 9; Goldsmid v. Bromer, Id. 234 (c). The marriages of Quakers must be proved to have taken place according to the customs of that sect. 1 Hagg. Appx. p. 9, (n). Deane v. Thomas, M. and M. 361 (d).
The cases in which the validity of marriages in England has been questioned, on the ground of a noncompliance with the requisitions of the marriage act respecting the publication of banns and licenses will be considered under separate heads.
Proof that the parties were not resident according to the provisions of the act, will not invalidate the marriage, whether it be by banns or license, for by the 26th sec. of the 4 Geo. 4, c. 76, it is enacted, that after the solemnization of any marriage, whether by banns or license, it shall not be
(1) That defendant's confession is evidence see Commonwealth v. Murtagh, 1 Ashmead, 272. Forney o. Hallacher, 8 S. & R. 159. Cayford's case, 7 Greenl. 57. Contra. Commonwealth 0. Littlejohn, 15 Mass. 163. (a) 1 Eng. C. C. 109. (b) Eng. Eccl. Rep. iv. 367. (C) Id. 422. (d) Eng. Com. L.
Rep. xxii. 333.