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proved in evidence that a marriage by licence did take place at that time between those parties, Martha Absalom being then a minor. The entry in the register did not state the marriage to have been had with consent of parents; but much evidence was given on the part of the lessor of the plaintiff, to shew that the father of Martha Absalom knew and must have approved of the marriage. It was contended on the part of the defendant, that positive affirmative evidence of the father's consent was absolutely necessary to support the action, and to satisfy the requisites of the statute (a); but the learned Judge told the jury that in bis opinion evidence of circumstances in the conduct of the father, importing knowledge and approbation of the marriage, was sufficient, without positive proof of a written or verbal consent. The jury, under this direction, found the fact of consent, and a verdict for the plaintiff. In last Michaelmas term, a rule nisi for a new trial was obtained upon affidavits stating various circumstances tending to negative the fact of consent, and setting out the affidavit made by John Evans for the purpose of obtaining the licence, in which he deposed that both he and Martha Absalom, were at that time, according to the best information he could procure, twenty-one years of age.
W. E. Taunton and Maule shewed cause. The balance of evidence was greatly in favour of the validity of the first marriage of Martha Absalom, that is, that it was had with the consent of her father. The defendant did not give any evidence at the trial to negative the fact of consent, which, under the circumstances of the case, it was his duty to do. He received notice long before the trial of the lessor of the plaintiff's intention to dispute the validity of the second marriage; therefore he was fully apprised of the case to be
(a) 26 Geo. 2, c. 33, s. 11, which enacts that all marriages solemnized by licence, where either of the parties, not being a widower or
widow, shall be under the age of twenty-one years, which shall be had without the consent of father, guardian, &c. shall be roid.
set up against him, and might and ought to have gone to trial perfectly prepared with evidence to meet it. He cannot support this motion on the ground of surprise, for the evidence which he now lays before the Court in his affidavits might have been produced at the trial by means of witnesses, who would then properly have been subject to cross-examination: and it would be highly dangerous for the Court to allow a defendant, after he has by one trial obtained a full knowledge of his opponent's case, to obtain a second trial by means of affidavits, supplying facts which he was bound to have known and proved at the first. Upon every principle it is clear that it was for the defendant to prove non-consent, and not for the plaintiff to prove consent. The marriage took place thirty years before the trial, and after such an interval proves itself, or at least must be presumed to have been regular and legal; for the law will presume every thing possible to be presumed in favour of the validity of a marriage and the legitimacy of children. The words of the statute 26 Gev. 2, c. 33, s. 11,
without consent,” shew that it was the intention of the legislature to cast the burthen of proof upon the party disputing the validity of the marriage; and there are cases in the books supporting that construction. In Rex v. Rogers(a) it was held necessary, in support of an indictment under the statute 42 Geo. S, c. 107, s. 1, for coursing deer in an inclosed ground“ without the consent of the owner thereof,” to call the owner of the deer to prove that he did not give his consent to the prisoner to course them. In Williams v. The East India Company (b), where a plaintiff declared that the defendants, who had chartered his ship, put on board a dangerous commodity, by which a loss happened, without due notice to the captain, or any other person employed in the navigation, it was held that it lay
(a) 2 Campb. 654.
(6) 3 East, 192; and see Monke v. Butler, 1 Rol. Rep. 83, there cited; Powell v. Milbank, 2 W. Bla.
851; Lord Halifar's case, Bull. · N. P. 298; Rer v. Combs, Comb. 57; Gilb. Ev. 132; 1 Phil. Ev. (4th ed.) 190, 220; Roscoe, Ev. 41.
upon the plaintiff to prove that negative averment. And that decision was founded upon a principle which applies expressly to the present case, namely, that where any act is required to be done by one, the omission of which would make him guilty of a criminal neglect of duty, the law presumes the affirmative, and throws the burthen of proving the negative on the party who insists on it. But even if the cobsent required by the 26 Geo. 2, e. 33, s. 11, cannot be presumed in this case, still it is submitted that the subsequent statutes, 3 Geo. 4, c. 75 (a), 4 Geo. 4, c. 17(6), and 4 Geo. 4, c. 76(c), have repealed the former act, or at least have legalized marriages which would not have been legal under the former act. These statutes are, undoubtedly, extremely obscure (d), and it is no easy matter to predicate with certainty what are their effect and operation retrospectively one upon the other; but according to the ordinary rules of construction, it does appear that the marriage
(a) The 3 Geo. 4, c. 75, s. 1, repeals the 26 Geo. 2, c. 33, s. 11, that makes void marriages of minors by licence, without the cons sent of parent or guardian, as far as the same shall relate to any marriage thereafter to be solemnized.
Sect, 2. declares, that all such marriages, which were solemnized before the passing of the act, shall be valid, where the parties have lived together until the death of one of them, or until the passing of the act.
(b) The 4 Geo. 4, c. 17, s. 1, repeals several of the clauses of the 3 Geo. 4, c. 75, and then enacts, “ that all marriages which have been or shall be solemnized under licences granted, or bans published, conformably to the provisions of the said recited act, (3 Geo. 4, c. 75,) shall be good and valid; provided always, that no marriage solemnized under any
licence granted in the form and manner prescribed by either of the said recited acts,( 26 Geo. 2, c. 33, and 3 Geo. 4, c. 75,2 shall be deemed invalid on account of the want of consent of any parent or guardian."
(c) The 4 Geo. 4, C. 76, repeals, after the 1st Nov, then next, the acts of 26 Geo. 2, c. 53, and 4 Geo. 4, c. 17,“ save and except as to any acts, matters, or things done under the provisions of the said recited' acts, or either of them, be. fore the said 1st Nov., as to which the said recited acts shall respectively be of the same force and effect, as if this act had not been made, save also and except so far as the said recited acts, or either of them, repeal any former act, or any clause, matter, or thing therein contained."
(d) Vide Rer v. Birmingham, post, vol. ï.
in this case, even supposing that consent cannot be presumed, or had been disproved, is rendered valid by the last act of parliament.
Ludlow and Russell, Serjts., contra. The recent marriage acts have no sort of bearing upon the present case. The 3 Geo. 4, was indeed both retrospective and prospective; but that was repealed by the subsequent acts, which are prospective only. At any rate, those acts could only have applied in the event of the parties having lived together down to the death of John. Evans: to give them the effect contended for on the other side would be to disinherit the issue of the second marriage. The ground on. which the defendant rests his application for a new trial is, not that of surprise, but that the lessor of the plaintiff, as the party claiming under the first marriage, was bound ac, cording to the law of evidence to prove affirmatively that it was had with consent of parents. The doctrine of presumption is decidedly in favour of the defendant, because the law in this case cannot presume the first marriage to have been legal, without also presuming the commission of the crime of bigamy. Now it is clearly settled by the cases of Rex v. James (a), Rer v. Morton (6), and Rex v. Butler (c), that such a presumption cannot be raised, and that in an indictment for bigamy, the burthen of proving a legal marriage, conformably to the provisions of the statute, lies upon the prosecutor. So in Rer v. Twyning (d), upon a question of settlement, where a woman, twelve months after her first husband was last heard of, married a second
(a) R. & R. C. C. 17.
(c) R. & R. C. C. 61. In this latter case it is, however, to be observed, that one of the grounds of the decision of the Judges is reported to have been, “ that there were no circumstances from which consent could be presumed;" and
the Reporters have added,in a note, that“ it seems that any subsequent countenance from parents or guardians, or other circumstances of a similar kind, might afford ground for presuming the necessary consent."
(d) 2 B. & A. 386.
husband, and had children by him, it was held, on appeal, that the sessions did right in presuming primâ facie that the first husband was dead at the time of the second marriage; and that it was incumbent on the party objecting to the second marriage, to give some proof that the first husband was then alive: and that decision proceeded upon the very principle relied on by the other side, namely, that the law always presumes against the commission of crime.
BAYLEY, J., (after consulting with the other Judges).We think that we should be working great injustice if we were to grant a new trial in this case, because we should be giving encouragement to parties to go to trial without duly preparing themselves with evidence even on points which they knew beforehand would be made matters of dispute. It cannot be permitted that either party'shall produce just so much evidence as he thinks proper, and then stop short, and ultimately obtain a new trial, on the ground that he did not on the first trial give all the evidence which he then might and has since found he ought to have given. In this case the defendant had a perfect knowledge of all the facts of the case; he was fully apprised, by the notice served upon him, of the nature of the question which he would have to discuss; and it was his bounden duty to have procured every description of evidence that was calculated to negative the fact of the first marriage having been solemnized with the consent of parents. He did furnish himself with evidence upon that point to a certain extent, but to a certain extent only. He must have known, that in order to obtain the marriage licence, an affidavit would be necessary; and he ought to have obtained a sight of that affidavit, and have ascertained whether its contents would assist him. That ought to have been done before the trial; and the subsequent production of the affidavit ought not to hold out to the Court any inducement to grant a new trial. Indeed, it is one of the duties of the Court to guard themselves strictly agaiust falling into the practice, or entertain