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356

Enticing artificers to leave the kingdom.

or steel manufactures; and 39 G. 3. c. 56. s. 8, as to persons engaged in collieries.

Evidence.

Prove that the defendant contracted with, or endeavoured to entice or seduce J. N. to go to France; and prove that J. N. is a manufacturer or workman, &c. as described in the indictment. Prove also that the prosecution was commenced within twelve months after the offence committed. 23 G. 2. c. 13. s. 2.

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Middlesex, to wit: The jurors for our lord the King upon their oath present, that J. S., late of the parish of B. in the county of M., labourer, on the first day of April, in the first year of the reign of our sovereign lord George the fourth, at the parish of C. in the county of D., did marry one A. C., spinster, and her the said A. then and there had for his wife; and that the said J. S. afterwards, and whilst he was so married to the said A. as aforesaid, to wit, on the third day of May, in the third year of the reign aforesaid, at the parish of F. in the county of G., feloniously and unlawfully did marry and take to wife one M. Y., and to her the said M. was then and there married, the said A. his former wife being then alive : against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., afterwards, to wit, on the Arst day of August in the year last aforesaid, at the said parish

of B. in the county of M. aforesaid, was apprehended and taken for the felony aforesaid.

Felony, 1 J. 1. c. 11. s. 1, punishable as grand or petit larceny. 35 G. 3. c. 67. s. 1. The venue may be laid in the county where the defendant was apprehended, in the same manner as if the offence were committed in that county; 1 J.1. c. 11. s. 1; or it may be laid in the county in which the offence (that is, the second marriage) was committed. 1 Hale, 694. Hence, when the venue is laid in the county where the defendant was apprehended, no advantage can be had of some or all the facts (with the exception of the defendant's apprehension) being laid in a foreign county.

Evidence on the part of the prosecution.

1. The marriage between the defendant and A. C., must be proved. The time at which it was celebrated, is immaterial; and whether celebrated in this country or in a foreign country is also immaterial. 1 Hale, 692.

If celebrated abroad, it may be proved by any person who was present at it; and such circumstances should also be proved, from which the jury may presume that it was a valid marriage according to the laws of the country in which it was celebrated. Proof that the ceremony was performed by a person appearing and officiating as a priest, and that it was understood by the parties to be the marriage ceremony according to the rights and custom of the foreign country, would be sufficient presumptive evidence of it, see R. v. Inhabitan:s of Brampton, 10 East,282, so as to throw upon the defendant the onus of impugning its validity.

If celebrated in this country, it may be proved by the production of the register of the marriage, or an examined copy of it, together with some proof, either direct or presumptive, of the identity of the parties; ante, p. 87; and if the marriage were by licence, and it appear that either of the parties were a minor at the time, the prosecutor must further prove that the marriage was solemnized with the consent of the father, guardian, or mother of the minor, according to stat. 26 G. 2. c. 35. 3. 11. R. v. Bridgwater and R. v. Butler, 1 Russel, 294. Per Bayley, J. in Smith v. Huson, 1 Phillimore, 287. Or, the marriage may be proved by some person who was present at it: but then, it should seem, evidence must be given of banns regularly published, or of a licence; and, if the marriage were by licence, that the parties were of age; or (if under age) that the marriage was had with the consent of the father of the minor, or of the guardian if the father were dead, or of the mother if there were no guardian, or of a guardian appointed by the court of chancery if the mother were dead. In fact a valid marriage must be proved; Per Bayley, J. in Smith v. Huson, Phillimore, 287; the law will not presume it in cases

of bigamy, as it will in civil cases. Id. See 26 G. 2. c. 33. It may be necessary to add, that the marriages of jews and quakers, where both parties are jews or quakers, are excepted out of this marriage act; nor does it extend to mar. riages beyond seas, or in Scotland. Id. s. 18. See as to Scotch marriages, Ilderton v. Ilderton, 2 H. Bl. 145. Crompton v. Bearcroft, Bul. N. P. 113. and see as to marriages of illegitimate children by licence, in England, Priestley v. Hughes, 11 East, 1.

Proof, however, of a marriage which is voidable merely, as for consanguinity, or the like, will support an indictment for bigamy. 3 Inst. 88. But it is otherwise, if the marriage be not voidable merely, but void: as, for instance, if a woman marry A., and, in the life time of A., marry B.; and after the death of A., and whilst B. is alive, she marry C.: she cannot be indicted for bigamy in her marriage with C., because her marriage with B. was a mere nullity. 1 Hale, 693. So the marriage of an ideot, or of a lunatic not in a lucid interval, is void, because he is deemed in law incapable of entering into such a contract. 1 Bl. Com. 438,439. So, if a boy under 14, or a girl under 12, contract matrimony, it is void, unless both husband and wife consent to and confirm the marriage, after the minor arrives at the age of consent. Co. Lit. 79. Vide past.

2. The prosecutor must prove the defendant's subsequent marriage with M. Y. And this must be proved to have taken place in England; for it is the second marriage which constitutes the offence. 1 Hale, 692, 693. This marriage is proved, in the same manner as directed ante, p. 358.

3. It must be proved that the first wife was alive at the time the second marriage was solemnized; which may be done by some person acquainted with her, and who saw her at the time or afterwards.

And it may be necessary to observe, that the first wife is not a competent witness to prove any part of the case, either for or against her husband, ante, p. 97, but the second wife is. Ante, P. 98.

Evidence for the defendant.

The following are good defences to an indictment for bigamy.

1. That the wife or husband of the party indicted has been "continually remaining beyond the seas, by the space of seven years together;" 1 J.1. c. 11. s. 2; even although the party indicted knew the other to be alive. 1 Hale, 693.

2. That the wife or husband of the party indicted had "absented him or herself" from the party indicted, "by the space of seven years together, in any parts within his Majesty's

dominions (that is, within England, Wales or Scotland, 1 Hale, 693), the one of them not knowing the other to be living within that time." 1 J. 1. c. 11. s. 2.

3. That before the second marriage, the party indicted was divorced from the former wife or husband, by a sentence of the ecclesiastical court. 1 J. 1. c. 11. s. 3. And whether the divorce be à mensâ et thoro, or à vinculo matrimonii, is immaterial. 1 Hale, 694. 1 Hawk. c. 42. s. 5. March. 101. Kel. 27. But a divorce in a court in Scotland, of persons married in England, does not seem to be within this clause of the act. R. v. Lolly, 1 Russel, 287.

4. That the former marriage was declared to be void and of no effect, by sentence in an ecclesiastical court. 1 J. 1. c. 11. s. 3. This, however, does not extend to the sentence of an ecclesiastical court in a cause of jactitation; Duchess of Kingston's case, 11 St. Tr. 260. and see ante, p. 84; and even sentences within this clause of the act, may be impeached upon the part of the crown, upon the ground of fraud or collusion. Id. 1 Ph. Ev. 338.

5. That at the time of the former marriage, either the party indicted, or the other, was within the age of consent; 1J. 1. c. 11. s. 3. 1 Hale, 694. 3 Inst. 89; that is to say, within the age of 14 in a man, or 12 in a woman.

SECT. 2.

Common Nusance.

Indictment for carrying on an offensive trade.

Middlesex, to wit: The jurors for our lord the King upon their oath present, that J. S., late of the parish of B. in the county of M., [labourer], on the third day of May, in the third year of the reign of our sovereign lord George the fourth, with force and arms, at the parish aforesaid in the county aforesaid, near unto divers public streets being the King's common highways, and also near unto the dwelling houses of divers liege subjects of our said lord the King there situate and being, unlawfully and injuriously did [make, erect, and set up, and did cause and procure to be made, erected, and set up, a certain furnace and boiler, for the purpose of boiling tripe and other entrails and offal of beasts; and that the said J. S., on the day and year aforesaid, and on divers other days and times between that day and the day of the taking of this inquisition, at the parish aforesaid in the county aforesaid, unlawfully and injuriously did boil, and cause and procure to be Loiled, in.

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