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Ex.]

WHITECHURCH AND OTHERS v. THE EAST LONDON RAILWAY COMPANY.

good the assessment at its original rate; and unless there was an option in the parish to assess those portions of the railway which were completed and in operation, in the ordinary way, or claim the deficiency under this provision in the Act of Parliament, would also disentitle the parish to recover the larger amount, whenever it might be a larger amount, which they would in the case of those portions of railway be entitled to. We see that the result of such a construction would be to keep up and continue a state of things which the Legislature cannot have contemplated; a state of things in which neither the railway company are assessed, nor the parish entitled to make an assessment upon the railway, according to the ordinary rules of law, that is upon the rateable value of the railway, and to substitute for those ordinary rules something intended to be only of a temporary character, and that long after the necessity for that mode of rating should have ceased. And again, this consideration occurs: supposing the railway between Wapping and Bethnal Green should never be completed at all, here is a complete railway from Wapping to Deptford, which is worked, and worked possibly at a profit, at all events it is worked with some remuneration to the company. And is the system of rating only at the difference or deficiency which exists between the original value of the land and the no-value of an incomplete railway to continue for ever? I see no end to it if so extended a construction is to be put upon the Act of Parliament. But then we have to consider undoubtedly the case decided in the Court of Queen's Bench. Now, it is impossible to deny that, when we look at some of the rationes decidendi, they apply entirely to this case; and that it is necessary, therefore, in pronouncing the opinion I am now delivering upon this case, that I should differ, as to some of the rationes decidendi, from the learned judges of the Queen's Bench. And I feel myself compelled to do so, first upon the ground that, if this deficiency is recoverable under a provision of this nature in the Act of Parliament, it would apply equally to the case of a railway from London to Carlisle or from London to Bristol, as to a small and short railway extending only from Deptford to Bethnal Green. But when we look at the case, there are two points of distinction between that case and the case now before the court which relieves me from the difficulty I should otherwise feel in differing from those learned judges; one has been pointed out by my Brother Cleasby, that in that case in the Queen's Bench the word "railways is not in the singular number, but in the plural number. That was an Act of Parliament for five or six different railways in different places, and the condition was, "until the railways should be completed." I do not know whether there was an interpretation clause there or not, but there was certainly no such interpretation clause in that case as we find in this case; and, therefore, it is enough to distinguish the one case from the other, that here the word "railway" is in the singular number, and there it was in the plural number, and it is impossible to put a literal construction upon that Act of Parliament without applying the provision to the whole of the railways conjointly. And so it was held that the deficiency was recoverable in the way pointed out in the section in question, until the whole number of the railways was completed. But

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there is another distinction between this case and the cases before the Court of Queen's Bench, and that is a material distinction which goes the whole length of the principle involved in both cases, and that is this: That there the whole line of railway to be constructed under the Act from one end to the other of the parish or parishes in question was not complete, it was a portion only of the land to be taken in the parish, and to be occupied by the railway which had been completed. Here the whole line of railway from one boundary to the other of the parish of Rotherhithe is complete. The whole of the land taken in this parish liable to assessment in the parish has been taken, and the railway through the whole of that land is complete, and further, it is complete from Deptford, which, I think, is beyond the parish of Rotherhithe, to the station or terminus at Wapping, which is also beyond the parish of Rotherhithe, and, therefore, we have here one complete line of railway in actual operation, and returning a remuneration to the company, the proprietors of the line of railway, and comprising within it the whole of the land which is rateable within this parish. That is another distinction between the case now before the court and the case in the Queen's Bench. It appears to me, therefore, that the only reasonable construction we can put upon this expression is, that it means this deficiency shall be recoverable by the parish against the railway company, so long as the railway within that parish is in such a condition that it would be difficult to determine any reasonable principle upon which it can be rated at all, in which case the parish would find that they could only recover from the company, if assessed in the ordinary way, a much smaller sum of money than they had previously derived from the property as it formerly existed, or than they were likely afterwards to derive from the line of railway or any specific workable portion of it; but the moment there is a workable portion complete and actually worked, so as to make it the subject of assessment to the poor rate, or any other of these rates, according to the law by which railways are rated to the poor rates, it appears to me that the words of the Act are satisfied. There is then, and then only, a railway said to be complete and liable to be assessed; of course the parish cannot be entitled at once to assess it, and recover a poor rate in that way, and also to recover a deficiency under this section of the Act of Parliament, when a part of the railway is complete. And when that has been assessed there is an end of the application of this section of the statute. If the railway itself be complete and liable to assessment, although not actually assessed, so in like manner it comes within the words of this provision in the Act of Parliament, and the right to recover the deficiency is at an end. Under these circumstances, and regretting that I have to differ, as to the rationes decidendi, from the learned judges of the Court of Queen's Berch, I am bound to pronounce an opinion that in this case the action is not maintainable.

Judgment for the defendants. Attorneys for the plaintiff, Hawkes, Wilmott, and Stokes, 101, High-street, Southwark, and 61, Paradise-row, Rotherhithe, E.C.

Attorneys for defendant, Wilson, Bristors, and Carpmael, 1, Copthall - buildings, E.C., and 2, Parliament-street, S.W.

Ex.]

Tuesday, May 7, 1872.

ANDREWS v. STYRAP.

SECOND DIVISION OF THE COURT. (Before MARTIN, BRAMWELL, and PIGOTT, BB.) ANDREWS v. STYRAP.

The Medical Act (21 & 22 Vict. c. 90), sect. 40 Title of "M.D."" Wilfully and falsely" taking and using the same-Conviction for by justices under the above section-Evidence of the offence -Diploma of foreign university obtained by purchase only.

A a druggist, had attended a patient in the capacity of a medical man, and sent in to him a bill for such attendances, headed, "Mr. P. to Thomas Andrews, M.D." setting out a variety of charges for attendance and medicine, &c. He subsequently wrote a letter signed, "Thomas Andrews, M.D." threatening legal proceedings unless the bill were paid, and he gave a receipt for the bill when paid, signing it in the same way. There was a coloured lamp over his shop door, on three sides of which the words and letters " Thomas Andrews, M.D." were painted. It appeared that he had obtained by the payment of a sum of money a diploma of doctor of medicine from the University of Philadelphia in the United States, but that he had never been in America, or studied, or passed any examination, for such degree, and he was not registered under the Medical Act.

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On appeal, from a conviction by justices under sect. 40 of the Medical Act (21 & 22 Vict. c. 90), for having unlawfully, wilfully, and falsely taken and used the name, title, description and addition of “M.D.,” and “thereby implying that he was then registered under the Medical Act, whereas he was not so registered," &c., it was

Held by the Court of Exchequer (Martin, Bramwell, and Pigott, BB.) that the conviction was right, and must be affirmed.

THIS was an appeal from a decision of justices, convicting the defendant, upon an information laid before them under sect. 40 of the Medical Act (21 & 22 Vict. c. 90) for falsely, &c., taking and using the name and title of a physician and doctor of medicine, and it came before the court on a case stated by the justices under the 20 & 21 Vict. c. 43. It appeared from the case that at a petty sessions in and for the borough of Shrewsbury, on the 21st Dec. 1871, an information was laid by the respondent against the appellant, a druggist in the said borough, charging him with having, on the 25th Sept. 1871, within the said borough, unlawfully, wilfully, and falsely taken and used a name, title, addition, and description-to wit, "M.D.," meaning thereby "doctor of medicine," and thereby implying that he, the said appellant, was then registered under the Medical Act, whereas he was not so registered, he, the said appellant, not being a person who was actually practising in medicine in England before the 1st Aug. 1815, contrary, &c., and upon hearing the said parties, appellant and respondent respectively, by attorney and counsel, the matter was determined by the said justices, and the appellant was duly convicted before them of the said offence, and adjudged to pay the penalty of 20%., including costs, to be levied in default of payment by distress and sale of his goods; and in default of sufficient distress he was to be imprisoned for two calendar months, unless the said penalty and costs were sooner paid.

The appellant being dissatisfied with the deter

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mination of the justices as erroneous in point of law, applied to them to state and sign the present case for the opinion of this court, from which it appeared that on the hearing it was proved and found as a fact that the appellant had attended a patient, the sister of one Thomas Parton, in the capacity of a medical man, and had, on the day named in the information, sent in to the said Thomas Parton a bill in the following terms: Mr. Parton, Shrewsbury, 25th Sept. 1871. To Thomas Andrews, M.D. To professional attendance, medicines, &c., late Miss Parton

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Settled, EDWYN ANDREWS. It was further proved that the appellant had a lamp over the door of his shop at Shrewsbury, on three sides of which the words Thos. Andrews, M.D.," were painted.

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A book purporting to be the Medical Register for 1871, marked on the outside "By authority," was produced by the registrar of the County Court, and which he said had been issued to the court by authority for their guidance, and upon searching it the name of the appellant was not found there.

On the part of the appellant the above facts were not denied, except as to the words "unlawfully, wilfully, and falsely," and in support of the contention that the appellant did not "unlawfully, wilfully, and falsely," take and use the title of M.D., &c., (as charged in the information), a diploma of the American University of Philadelphia in the United States, dated 20th Feb. 1871, was put in. It was in Latin, and the following translation was handed in to the justices by the appellant.

To all to whom this present letter may reach. The President Fellows and Professors of the American University of Philadelphia, founded by the laws of the Republic of Pennsylvania, give salutation. Inasmuch as in all universities, properly and legitimately constructed, either here or elsewhere in the world, it was a praiseworthy and ancient usage that men who have not less diligently than faithfully paid attention to literature, or to ingenuous arts, or to any liberal studies whatever, meanwhile conducting themselves uprightly and honourably, should be adorned with some distinguished honour, and raised to merited dignity; and since by the laws of

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our Republic we possess the fullest power of distinguishing and decorating with academical titles, and of advancing to degrees in sacred theology, in arts, and medicine, gentlemen well deserving of them, we therefore, furnished with this authority, and not unmindful of the ancient usage, have adjudged, and at a meeting of the Council have decreed, the eminent gentleman devoted to the highest pursuits, Thomas Andrews, about whose proficiency in medical science and honorable character we have sufficiently enquired and scrutinized, to be worthy and fitting to be honoured as a learned man in the highest degree of dignity; wherefore, with one accord, we have both elected and made him Doctor of Medicine, and have given and assigned to him all rights and privileges which belong to that degree. Now, all and singular these proceedings we in good faith notify unto you by the present letter fortified with our seal and the signature of the President of the University, this 20th day of the month of February, and in the year of our Lord 1871.

A seal, purporting to be the seal of the said university, was appended to this document, as were also several signatures, purporting to be the signatures of professors or officers thereof. A witness also proved that he held a similar diploma from the said university, and that he had been in America, and he testified to the authenticity and genuineness of the seal and the signatures appended to the appellant's diploma. He also said, on cross-examination, that a diploma could be obtained by an examination before examiners in England commissioned by the University of Philadelphia for that purpose. It was not alleged that the appellant had ever been in America, nor was any proof given that he had undergone any examination in order to obtain the diploma.

Upon these facts the justices came to the conclusion that the appellant had committed the offence charged in the information, and they duly convicted him thereof as aforesaid, and the question for this court is whether, upon the above facts, the justices were justified in coming to that conclusion, and so convicting the said appellant, or whether the fact of the appellant having obtained the above-mentioned diploma exonerated him from the charge made against him?

The following sections of the Medical Act (21 & 22 Vict. c. 90), which provides for the registration of duly qualified practitioners as therein specified, were referred to in the argument, and especially sect. 40, upon which the information is founded.

Sect. 31 empowers every person registered under the Act to practise medicine, or surgery, or medicine and surgery, as the case may be, according to his qualifications, in any part of the Queen's dominions, and to recover his reasonable charges with costs of suit, in any court of law; and by sect. 32, no person, after the 1st. Jan. 1859, shall be entitled to recover any charge in any court of law for medical or surgical advice, &c., or medicine prescribed and supplied, unless upon proof that he is registered under this Act.

Sect. 36 provides that, after 1st Jan. 1857, no person, unless registered under the Act, shall hold any appointment as physician, surgeon, or other medical officer, either in the military or naval service, or in emigrant or other vessels, or in any hospital, &c., not supported wholly by voluntary contributions, or in any lunatic asylum, &c., &c.

Sect. 40 enacts that any person who shall wilfully and falsely pretend to be, or take or use the name or title of, a physician, doctor of medicine, licentiate in medicine and surgery, bachelor of medicine,

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surgeon, general practitioner or apothecary, or any name, title, addition, or description, implying that he is registered under this Act, or that he is recognised by law as a physician or surgeon, or licentiate in medicine and surgery, or a practitioner in medicine, or an apothecary, shall, upon a summary conviction for any such offence, pay a sum not exceeding 201.

Huddleston, Q. C. (with him was Bullen), for the respondent, supported the conviction, and-follow. ing the course adopted in Ellis v. Kelly (3 L. T. Rep. N. S. 331; 30 L. J. 74, Ex., and 35, M. C.; 6 H. & N. 222) and Jones v. Taylor (28 L. J. 20, M. C.)-was called on by the court to begin.-He contended that the conviction was right, and that the justices, having found all the facts and come to a decision upon them, the court would not interfere with the conclusion at which they had arrived.

Ladd v. Gould, 1 L. T. Rep. N. S. 325.

R. Vaughan Williams, for the appellant, contra, urged that the diploma of the University of Philadelphia, which was an institution of high standing, and fully empowered to grant degrees, was a sufficient warrant for the appellant's use of the title of "M.D.," and saved him from coming within the operation of sect. 40 of the Medical Act. [PIGOTT, B.-The American University may be all that you say it is, but unfortunately this student has never been there.] It appears that the University is constantly in the habit of ap pointing examiners in other countries, and non constat that that was not done here. The fact of the Act of Parliament granting certain privileges to some persons, and imposing certain restrictions on others, by no means makes it unlawful to prac tise or to assume the title of "M.D." The Act only imposes certain liabilities or restrictions, as, for instance, by sect. 36, no unregistered person_can hold certain medical offices there specified. If it be contended that the mere fact of practising as a "Doctor," without being registered, is an offence, the answer is in that section. The offence must be something more; a man must practise as a doctor with the object of obtaining the privilege conferred by the Act on registered individuals, or of avoiding or getting rid of the disabilities imposed upon non-registered persons. The mere fact of using the letters M.D." after his name is no evi. dence of the offence, or of doing anything coming within the two last-mentioned heads. The case of Ellis v. Kelly (ubi sup.) is an authority that the merely appending "M.D." to one's name is no offence under the Act. In the present case it was done under a supposed right by virtue of the foreign diploma, and Ellis v. Kelly as well as Ped grifft v. Chevalier (20 L. J. 225, M. C; 8 C. B., N. S., 246), show that that is no offence. The evidence in the present case is very similar to that in Ellis v. Kelly, and the remarks of the court there, and particularly those of Bramwell, B., that it is the doing the thing "wilfully and falsely" that con stitutes the offence under the Act, which doing it under a supposed, even if it be a mistaken, right cannot be held to be, are very applicable here. The appellant here had a foreign diploma. [MARTIN, B.-It is no diploma at all, it is a mere pretence. BRAMWELL, B.-The matter does not appear to me now as it appears to have appeared to me then.] It is submitted that there is no evidence here of the appellant having done anything more than incorrectly or

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mistakenly used the title of "M. D." In this case it is an American degree, in Ellis v. Kelly it was a German one. Pedgriff v. Chevallier (ubi sup.), shows that the mere fact of a man's name not being in the medical register is not sufficient to warrant a conviction, for which purpose there must be evidence of wilful falsity, of which there is here an entire absence. To hold the appellant guilty of the offence would seriously affect hundreds of Scotch practitioners who are not registered under the Act.

MARTIN, B.-I believe we are all of opinion that the justices were perfectly right and thoroughly well warranted in the conclusion at which they arrived upon the facts before them in this case, and that, therefore, this conviction must be affirmed. It is plain to my mind that this is a question of fact. There was ample evidence that this appellant wilfully (for he did it on purpose) and falsely (because he pretended thereby to be on an equal footing with any regularly bred and registered physician or M.D. in England) took, assumed, and used the title of "M.D.," under a diploma obtained by him from an American university, without any course of previous study or any examination, but simply on the payment of a sum of money, and which diploma, therefore, he must have known to be in fact utterly worthless and valueless as an indication of the possessor's merit, learning, and skill as a physician, or as giving him any of the privileges of a registered medical man. I am glad to hear from a learned gentleman now in court that the American Legislature have recently prohibited the granting of these degrees to persons on the payment of a sum of money only, and without a previous course of study and preliminary examination. The conviction must be affirmed.

BRAMWELL, B.-I entirely agree with all that has been said by my brother Martin.

PIGOTT, B.-I also concur in thinking that this conviction must be affirmed.

Judgment for the respondent, affirming the conviction, with costs.

Attorneys for the appellant, Needham, Power, and Needham, 1, New-inn, Strand, W.C., agents for H. Morris, Shrewsbury.

Attorney for the respondent, E. F. Cooke, 3, Serjeant's-inn, Chancery - lane, W.C., agent for Chandler, Shrewsbury.

CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

May 4 and 23, 1872.

(Before COCKBURN, C. J., BOVILL, C. J., KELLY, C.B., MARTIN, B., WILLES, J., BRAMWELL, B., BYLES, J., CHANNELL, B., BLACKURN, J., MELLOR, J., PIGOTT, B., LUSH, J., HANNEN, J., CLEASBY, B., GROVE, J., and QUAIN, J.)

REG. v. ALLEN. Bigamy-Validity of second marriage-24 & 25 Vict. c. 100, s. 57.

A., while his second wife was alive, married a niece of his former deceased wife-the second marriage being within the prohibited degrees of affinity and void: (5 & 6 Will. 4, c. 54, s. 2.) Held, that A. was guilty of bigamy.

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CASE reserved for the opinion of this Court by Martin, B.

The prisoner was indicted for bigamy.

On the 24th Feb. 1853, he married one Sarah Cunningham.

She died in Aug. 1866, leaving a niece named Harriet Crouch.

On the 30th Nov. 1867 he married one Ann Pearson Gutteridge, and on the 2nd Dec. 1871, and in the lifetime of Ann Pearson Gutteridge, he married the above named Harriet Crouch.

It was objected by the learned counsel for the prisoner that the marriage with Harriet Crouch, his first wife's niece, was void, and that the crime of bigamy was not committed. It was stated that the Court of Criminal Appeal in Ireland had so decided, and in deference to that decision, at the request of the prisoner's counsel, I state this case. The question is, whether the prisoner was guilty of bigamy. SAMUEL MARTIN.

Bullen, for the prisoner. The offence of bigamy was not committed in this case. The marriage with Harriet Crouch was absolutely null and void to all intents and purposes, being a marriage between persons within the prohibited degrees of affinity: (5 & 6 Will. 4, c. 54, s. 2.) No doubt the case of R. v. Brawn (1 Car. & K. 144) is a decision to the contrary, where Lord Denman said, "The validity or invalidity of the second marriage does not affect the question. It is the appearing to contract a second marriage and the going through the ceremony which constitutes the crime of bigamy, otherwise it could never exist in the ordinary cases, as a previous marriage always renders null and void a marriage that is celebrated afterwards by either of the parties during the lifetime of the other." Since that case, however, a case has occurred in Ireland, where seven to four of the judges held that the crime of bigamy was not committed where the second marriage was a void one: (Reg. v. Fanning, 10 Cox Crim. Cas. 411.) In that case the facts were, that F., a Protestant, was legally married, and while his wife was living he was married by a Roman Catholic clergyman to a Roman Catholic woman, representing himself at the time as a Roman Catholic, but it transpired that he was a professed Protestant within twelve months prior to the time of the second marriage. The second marriage was ipso facto void by the 19 Geo. 2, c. 13, s. 1, which enacts that " every marriage between a Papist and any person who hath been or hath professed himself or herself to be a Protestant at any time within twelve months before such celebrating marriage or between two Protestants, if celebrated by a Popish priest, shall be null and void." It was therefore held by the majority of the judges in Reg. v. Fanning, that the second marriage, not being a marriage in the eye of the law, the offence of bigamy was not committed. So in Burt v. Burt (29 L. J. 133, Prob. & Div.), it is stated in the judgment of the court, which consisted of Cresswell, J. O., Martin, B., and Willes, J., that in order to establish bigamy you must prove such a marriage as but for the former marriage would have been in itself valid. Again, in Reg. v. Millis (10 Cl. & Fin. 689), Tindal, C. J., said, that the second marriage, to constitute bigamy, must mean a marriage of the same kind and obligation as the first.

Warry, for the prosecution.-Upon the true construction of the 24 & 25 Vict. c. 100, s. 57, "whosoever being married shall marry any other person

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REG. v. ALLEN.

during the life of the former husband or wife shall be guilty of felony," the offence in this case was committed, though the second marriage was a void one. In Reg. v. Fanning, O'Hagan, J., in his judgment, said, "What meaning are we to ascribe to the words of the stat, 24 & 25 Vict. c. 100, s. 57? Are we at liberty to give to the same words in the two parts of the section different meanings? The first words, 'being married,' must mean a real legal marriage. Must the second words, shall marry,' be so likewise, and mean the same thing? It is impossible, for the second marriage was always null and void to all intents. I think the construction derived from the inherent invalidity of the second marriage is right. But I do not see why we should be bound in every case to attach to words the meaning which they first have, with the manifest result of giving impunity to a crime. The word marry,' in the second part of the section, must, in ordinary cases, be held to import not a real but a pretended marriage. Why should it not be held also in other cases to apply to a ceremony having all the outward marks of validity, but void from some other reason than the existence of the first marriage?" And Keogh, J., at p. 440, says, "There cannot be clearer or more coercive language than that used by Lord Denman in Brawn's case. That decision was made in 1843, and has never since been questioned. I think it proceeds on a true reading of the whole of these statutes, and I think that the mistake of those whose opinion leans to the other side arises from the idea that the word 'marry,' in relation to the second marriage, used in the statutes against bigamy, involves that the second marriage must be identical with the first, whereas that is an impossibility. The second must always be null if the first is good; and then we must conclude that what was in the mind of the Legislature was that the party should be guilty of felony who went through the form or ceremony, so far as he was concerned, constituting a marriage, but which differed from the first marriage in this-that while it was a real marriage, the second was a sham." [BLACKBURN, J.-Christian, J., at p. 437, says, In Brawn's case the ceremony was perfect; in this case there is no ceremony at all; and I can quite understand the distinction taken, though I do not say it is so, that in Brawn's case a complete legal ceremony had been performed; that a state of marrying in that case within the definition of bigamy in the Act of Parliament, had been completed, and the offence so constituted, even although, by reason of some disability personal to the party, a valid marriage did not follow. But whenever any of the legal essentials to the ceremony itself are wanting, then the state of marrying within the meaning of the Act of Parliament has not been perfected. If there be that distinction Brawn's case would be strictly right-and the very language of Lord Denman, who says that it is the ceremony which constitutes the crime of bigamy, would be strictly right, and so also the case put during the argument, by which I confess I was more embarrassed than by any other; the case suggested by Hughes B., of a double bigamy. If it were shown that at the time of the second marriage both parties were already married, could the man defend himself from the prosecution of bigamy on the ground that the second marriage was void, by reason of the previous marriage of his wife? Can

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he defend himself by pleading that his wife was as guilty as himself, or, in other words, is neither of them to be held guilty because both are guilty? I confess I see no way out of it, unless there is the distinction I have been taking, on an apparent distinction taken by some members of the court, and which might be thought sufficient to sustain the conviction in the present case. I merely say that probably if the ceremony be complete as a ceremony, the act of marrying may be taken as complete, although it fails in its legitimate effect, by reason of some personal disability of the party. Upon that however I express no opinion."] In Reg. v. Brawn (1 Car. & K. 144), where the woman, in the lifetime of her first husband, married a widower who had been her sister's husband, which would have been a void marriage under the 5 & 6 Will. 4, c. 54 s. 2, it was held that the validity of the second marriage did not affect the question of bigamy. So it seems that the assumption of a fictitious name upon the second marriage will not prevent the offence from being complete. Bullen in reply.

Cur, adv. vult.

May 23.-COCKBURN, C.J., now delivered the judgment of the Court. This case came before us on a point reserved by Martin, B., at the last assizes for the county of Hants. The prisoner was indicted for having married one Harriet Crouch, he having a wife still living. The indictment was framed upon the statute, 24 & 25 Vict. c. 100, s. 57, which enacts that whosoever, being married, shall marry any other person during the life of the former husband or wife, shall be guilty of felony. The facts of the case were clear, the prisoner had first married one Sarah Cunningham; and she having died, he had married his present wife, Ann Parson Gutteridge. The second wife being still living, he, on the 2nd of Dec. 1871, married one Harriet Crouch. So far the case would appear to be clearly one of bigamy within the statute; but it appearing that Harriet Crouch was a niece of the prisoner's first wife, it was objected on his behalf that since the passing of 5 & 6 Will. 4, c. 54, s. 2, such a marriage was in itself void, and that to constitute an offence within the 24 & 25 Vict. c. 100, s. 57, the second marriage must be one which, independently of its bigamous character, would be valid, and consequently that the indictment could not be sustained. For the proposition that to support an indictment for bigamy, the second marriage must be one which would have been otherwise valid, the case of Reg. v. Fanning (Cox C. C. p. 411) decided in the Court of Criminal Appeal in Ireland, was cited, and in deference to the authority of the majority of the Judges in that court, Baron Martin has stated this case for our decision. It is clear but for the statutory inability of the parties to marry one another if free, the marriage of the prisoner with Harriet Crouch would have been within the 57th section of the Act. The question is whether that circumstance alters the effect of the prisoner's conduct in going through the ceremony of marriage with Harriet Crouch, while his former wife was still living. The same question arose in the case of Reg. v. Brawn (1 C. & K. 144), which was tried before Lord Denman on the earlier statute of 9 Geo. 4, c. 31, s. 22, the language of which was precisely the same as that of the present. In that case the prisoner, a married woman, had, during her husband's lifetime, married a man who had been the husband of her deceased

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