The King v the Inhabitants of Billingshurst

Court of King’s Bench 
19^th November 1814

Before (the judges sitting on the bench)

• Lord Ellenborough , Chief Justice of the King's Bench
• Le Blanc J. 

Headnote

A person whose baptismal and surname was Abraham Langley was married by banns by the name of George Smith, having been known, in the parish where he resided and was married, by that name only, from his first coming into the parish till his marriage, which was about three years; Held that the marriage was valid, and therefore the wife and children entitled to the husband’s settlement.

Counsel (the barristers representing the parties)

• Mr Courthope & Mr Bowen on behalf of the Inhabitants of Billingshurst
• Mr D’Oyly & Mr Long on behalf of the King

Summary of the facts

The Quarter Sessions  upon appeal confirmed an order for the removal of George Smith, his wife and children, from the parish of Salehurst to the parish of Billingshurst , in Sussex, subject to the opinion of this Court upon the following case:

The pauper, whose baptismal and surname is Abraham Langley, and whose legal settlement is in Billingshurst, was married to his present wife in the parish of Lamberhurst , by banns, about four years ago, by the name of George Smith.  Previously to his marriage be had resided about three years at Lamberhurst, during which time, and from his first coming into that parish, and during all the time he remained there, and afterwards until and at the time of his removal, he was known by the name of George Smith only.  The wife and children have no settlement in Billingshurst, unless they have acquired one by the marriage.

Arguments submitted by counsel

Courthope and Bowen in support of the order of sessions —

The marriage was valid, and therefore the wife and children were entitled to the husband’s settlement.  The stat. 26 Geo. 2, c. 33 [the Marriage Act 1753], which directs “a notice in writing of the true Christian and surnames of the parties, to be delivered to the minister,” &c. was well satisfied in this instance by the name of George Smith, that being the name by which alone he was known at the place of his residence, and which he had gained by reputation.  It cannot be doubted that both by the ecclesiastical and common law a name which a man has acquired by reputation may stand in the place of his true name.  In Frankland v Nicholson (3 M. & S. 259) Sir Wm. Scott  expressly “states that there may be cases where names acquired by general use and habit may be taken by repute as the true Christian and surname of the parties;” and afterwards addressing himself more particularly to the point now in question, “If,” says he, “a person has acquired a name by repute, in fact the use of the true name in the banns would be an act of concealment that would not satisfy the public purposes of the statute; therefore I do say that names so acquired by use and habit might supersede the use of the true name.”  That was a case indeed where the assumption by the wife of a false name being considered as a fraud upon the husband, the marriage was held invalid: and so in a subsequent case of Pougett v Tomkyns (3 M. & S. 262), where the publication by a false name was a fraud upon the parental rights of the father, the same conclusion was come to.  But several other cases in the same Court have decided that the want of a strict adherence to the real name, if there be no fraud, and especially if the party has acquired a name by reputation, will not vitiate the marriage (3 M. & S. 265).  Considering also the question as it stands at the common law, it will be found that the Marriage Act is only confirmatory of the ancient law, as it stood upon the 25 H. 8 and the canons.  The Marriage Act confines the publication of banns to three Sundays, which before that might have been on three holidays (Canons, 1603; Can. 62; see Gibs. 511), the object of which was to secure notoriety.  Now that object has been attained in this instance in the best manner possible by the publication of the acquired name, for in the words of Sir W. Scott, the use of the true name would have been an act of concealment, the acquired name having superseded the use of the true name.  Somewhat analogous to this is the plea of misnomer of the defendant, in which it is usual for the defendant to plead not only that he was baptized by the name, but that he hath always been known by it, and to negative that he was ever known by the name of suit, and the plaintiff may reply that he is known by the one name or the other.  And according to Holt C.J.  in Holman v Walden (Salk. 6), to say that he was baptized, without saying, and known by such a name, is not sufficient; “One may have,” said he, “a nomen and cognomen, who was never baptized.”  Also he thought it could not be a sufficient answer for the defendant to say he was baptized by the name of A., without averring also that he was ever called and known by that name.  So Co. Lit. 3 showeth that a grant may be good, though it be not by the name of baptism or surname, if it be by a known name.  Again, 2 Roll. Abr., “Graunt” B, “If a man be baptized by the name of J. and is known by another name, if be grant by that name by which he is known, it is good.”  Here the statute does not make the banns void, except in one instance, viz where the parents or guardians forbid them (s. 3); and though it enacts that all marriages solemnized without publication of banns shall be void (s. 8), that may mean, as in the case of the Statute of Apprentices (5 Eliz. c. 4, s. 41; see Rex v St Nicholas, Burr. S.C. 91), voidable by the parties themselves, but not void for collateral purposes, such as a settlement, where the parties themselves do not complain.

D’Oyly and Long contrà, after observing that doubts were entertained at the Commons upon the validity of this marriage —

The marriage was void, by reason that the banns were not published in the true Christian and surnames, but more especially in the true Christian name, of the party.  And first as to the argument that the Marriage Act had for its object to insure notoriety to the marriage, and that if that was attained the purposes of the Act would be satisfied — if that were so, then it would be enough if publication were made by any description by which the party is generally known, without naming him, such as his name of office, or as parson or lord of such a manor or parish.  But the statute is precise that it shall be in the true Christian and surnames.  Perhaps a different consideration may be due to each of these, for, according to Co. Lit. 3, “a man may have divers names (i.e. surnames) at divers times, but not divers Christian names.”  And the reason of this seems to be, that the surname probably originated in some accidental circumstance of property, person, or occupation, peculiar to the individual, which therefore might vary with circumstances.  But the Christian name being imposed at his baptism, by a solemn act, inseparably connected with his religion, could not be changed except at his confirmation, in which case, as was resolved by all the Judges in Sir F. Gawdy’s  case, he shall afterwards use his name of confirmation (Co. Litt. 3; 2 Roll. Ab. 135).  So in Com. Dig.  “Abatement”, E, 18 (see also Bac. Ab. , “Misnomer”, B), it is laid down, “that the defendant shall plead misnomer of the plaintiff if his Christian name be mistaken, though he be known by the name by which he sues, for we can have but one name of baptism, and ought to sue by his true name.”  But it is otherwise with respect to his surname, ibid E, 19.  And this may be set against the supposed dictum  of Lord Holt  in Holman v Walden, and is in concurrence with the authorities above quoted.  Whatever may have been the ancient law before the Marriage Act, it will be found that since that time the rule of the Ecclesiastical Court has been to enforce a rigid observance of the forms prescribed by the Act, insomuch that in one case the Court felt itself compelled, though there was no ground to suspect fraud, to hold the marriage void, because the banns were published on Christmas Day instead of Sunday [the name of this case was not mentioned].  And in Pougett v Tomkyns, though much certainly turned upon the fraud, it is difficult to conceive that it was the only ground of decision, because if it were, it was allowing one of the parties to avail himself of his own fraud to avoid the marriage.  Frankland v Nicholson was a mixed case, not altogether resting on the fraud, but partly also on a general view of what the statute intended by the rules which it prescribed; and Sir W. Scott , said, “that he did not hold it to be necessary that there should be actual fraud on the individual party; it was enough if the thing led to a probability of fraud.”  Accordingly Mather v Ney (3 M. & S. 265) is an express decision that, in the absence of any circumstance of fraud, if from mere levity, as it was there said, the publication of banns be in a wrong name, the marriage is void ab initio .  Here the publication of banns, admitting a surname by repute to be well enough, was for the reasons above alleged in a wrong Christian name, and it is an inference of law that that was for the purpose of concealment; or if it be necessary to show fraud in fact, here, it may be said, if the publication had been in the real name of this pauper, it must have awakened suspicion, and led to inquiries how it happened that a man who was known by one name should have the banns published in another.  As to the argument that this marriage is not void but only voidable by the parties, it is sufficient to answer that the statute has expressly enacted that all marriages without publication of banns shall be null and void, and a publication of banns in a wrong name is as if there were no publication.  And though the statute relating to apprentices has been held to mean that the indentures shall be voidable only, that was because the statute made them void for the benefit of the parties, which benefit they may waive if they please, but this Act is made against both parties (per Lord Mansfield, in Chilham v Preston, Burr. S.C. 486; 1 Bl. Rep. 192).

Judgment

Lord Ellenborough C.J. —

All that the law requires on this subject is, that marriages shall be solemnized either by licence, or publication of banns, otherwise the stat. 26 Geo. 2, c. 33 [the Marriage Act 1753], s. 8, declares that they shall be void.  The statute does not specify what shall be necessary to be observed in the publication of banns; or that the banns shall be published in the true names; but certainly it must be understood as the clear intention of the Legislature that the banns shall be published in the true names, because it requires that notice in writing shall be delivered to the minister of the true Christian and surnames of the parties seven days before the publication; and unless such notice be given he is not obliged to publish the banns.  The question then is, has there been in this case, that which is required, a due notification by the minister, on a Sunday in time of divine service, of one of the persons intending to contract marriage.  Now it appears that such notification has been made by the name of George Smith, by which name alone the party was known in the place where he resided, and which he had borne for three years prior to the celebration of the marriage, in that place, and that he was not known there by any other name.  It would lead to perilous consequences if in every case an inquiry were to be instituted, at the hazard of endangering the marriage of a woman, who had every reason to think she was acquiring a legitimate husband, whether the name by which the husband was notified in the banns were strictly his baptismal name, or whether at the period of his baptism he may not have received some other name.  What the consequences might be of encouraging such inquiries, as to the avoiding of marriages, and bastardizing the issue of them, it is not very difficult to imagine.  The object of the statute in the publication of banns was to secure notoriety, to apprize all persons of the intention of the parties to contract marriage; and how can that object be better attained, than by a publication in the name by which the party is known?  If the publication here had been in the name of Abraham Langley, it would not of itself have drawn any attention to the party, because he was unknown by that name, and its being coupled with the name of the woman who probably was known, would perhaps have led those who knew her, and knew that she was about to be married to a person of another name, to suppose either that these were not the same parties, or that there was some mistake.  Therefore the publication in the real name, instead of being notice to all persons, would have operated as a deception; and it is strictly correct to say, that the original name in this case would not have been the true name within the meaning of the statute.  On these grounds I think that the Act only meant to require that the parties should be published by their known and acknowledged names, and to hold a different construction would make a marriage by banns a snare, and in many instances a ruin upon innocent parties.  The Court therefore cannot lend itself to a construction which would be pregnant with such consequences.

Le Blanc J. —

This question comes before the Court under circumstances which strip it of any thing like fraud.  The pauper who was known in the parish by the name of George Smith only, is notified to the minister by that name, and the banns are regularly published in that name in the parish church.  And the objection is, that the marriage is null and void, because the name of George is not the true name by which he was baptized, and because Smith is not his true surname; wherefore it is argued that this was a marriage without publication of banns.  It is material to look to the Marriage Act in order to see in what way it directs the banns to be published.  The only clause which directs the true Christian and surnames to be used is the second, and that has reference to the notice to be given to the minister; it requires that a notice in writing shall be delivered of the true Christian and surnames of the persons to be married.  A subsequent clause (s. 8) forbids any person to solemnize marriage without publication of banns, unless by licence, under the pain of being adjudged guilty of felony, and provides for the punishment of persons who shall so do; and then it concludes “that all marriages solemnized without publication of banns or licence shall be null and void to all intents and purposes.”  To be sure the argument here must necessarily be, that a marriage by banns which are published not in the true Christian and surnames of the parties, is a marriage without publication of banns.  But I cannot accede to that argument, recollecting what was the object of this provision in the Marriage Act.  The object of it was to insure notoriety to the transaction, and I think, the Court recollecting that, cannot say that a marriage by banns, published in the names by which alone the party was known, is a marriage without publication of banns.  The argument is, that a marriage by publication of banns means by publication of banns in the real names of the parties only; but the statute has said no such thing.  If the banns be published in the names of the party by which alone he is known, and there is no fraud, whether that be the true Christian or surname of the party or not, I think the marriage is good within the meaning of the statute.  Therefore I am of opinion that upon the present occasion every thing was done that was sufficient to give that notification of the marriage which it was the object of the Marriage Act to insure.

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Orders of the court

Per Curiam [Dampier J. was absent].  Order of sessions confirmed.