superintendent registrar as aforesaid, in like manner as by the said act is provided for the payment of the registrar, on production of his accounts to the superintendent regis

trar.

certificates

By 6 & 7 Will. 4, c. 86, s. 35, "Every rector, vicar, or Searches may curate, and every registrar, registering officer, and secre- be made, and tary, who shall have the keeping for the time being of any given by the register book of births, deaths, or marriages, shall at all persons keepreasonable times allow searches to be made of any register ing the regisbook in his keeping, and shall give a copy certified under ters. his hand of any entry or entries in the same on payment of the fee hereinafter mentioned; (that is to say,) for every search extending over a period not more than one year the sum of one shilling, and sixpence additional for every additional year, and the sum of two shillings and sixpence for every single certificate."

pro

And, with respect to the cost of such books, 1 Vict. c. 22, enacts, by section 25, that "Whereas by the said Cost of paroact for registering births, deaths and marriages, it is chial marriage vided that the cost of all marriage register books, and and forms, register books forms for certified copies thereof, furnished to the rector, how to be devicar, or curate of every church and chapel in England, frayed. wherein marriages may lawfully be solemnized, shall be paid by the churchwardens and overseers of the parish or chapelry, out of the monies in their hands as such churchwardens or overseers, and that the cost of register books of births, and of register books of deaths, and of forms for certified copies thereof, shall be paid by the guardians or by the churchwardens and overseers (as the case may be) out of the monies coming to their hands or control as such guardians, or churchwardens and overseers;' be it enacted, for removing doubt as to the fund chargeable therewith, that the cost of all such books and forms shall be borne by the union, parish or place in and for which the superintendent registrar is appointed, who superintends the registrar for whose use such books were provided, or to whom such rector, vicar, or curate is by the said act directed to deliver one copy of such register; and such cost shall be paid to the said superintendent registrar by the guardians, or by the churchwardens and overseers, as the case shall be, out of the monies coming into their hands as such guardians, or such churchwardens and overseers, for the relief of the poor."

And in order to enable the clergyman to make correct entries, 6 & 7 Will. 4, c. 86, enacts

Sect. 40. "That it shall be lawful for every clergyman Power to make

inquiries for correct entry.

Penalty for not

duly register ing births, death, and

marriages, or for losing or injuring the registers.

Accidental

corrected.

of the Church of England who shall solemnize any marriage in England. . . . to ask of the parties married the several particulars herein required to be registered touching such marriage."

Sect. 41. "That every person who shall wilfully make or cause to be made, for the purpose of being inserted in any register of birth, death, or marriage, any false statement touching any of the particulars herein required to be known and registered, shall be subject to the same pains and penalties as if he were guilty of perjury.

Sect. 42. "Every person who shall refuse or without reasonable cause omit to register any marriage solemnized by him, or which he ought to register, and every registrar who shall refuse or without reasonable cause omit to register any birth or death of which he shall have had due notice as aforesaid, and every person having the custody of any register book, or certified copy thereof or of any part thereof, who shall carelessly lose or injure the same, or carelessly allow the same to be injured whilst in his keeping, shall forfeit a sum not exceeding fifty pounds for every such offence."

The provisions of the law making forgery of the register books felony have been already mentioned (o).

By 6 & 7 Will. 4, c. 86, s. 44, however, "No person errors may be charged with the duty of registering any birth, death, or marriage, who shall discover any error to have been committed in the form or substance of any such entry, shall be therefore liable to any of the penalties aforesaid if within one calendar month next after the discovery of such error, in the presence of the parents of the child whose birth may have been so registered, or of the parties married, or of two persons attending upon any person in his or her last illness whose death may have been so registered, or in case of the death or absence of the respective parties aforesaid, then in the presence of the superintendent registrar and of two other credible witnesses who shall respectively attest the same, he shall correct the erroneous entry, according to the truth of the case, by entry in the margin, without any alteration of the original entry, and shall sign the marginal entry, and add thereunto the day of the month and year when such correction shall be made: provided also, that in the case of a marriage register he shall make the like marginal entry, attested in like manner, in the duplicate marriage register book to be made by him

(0) Vide supra, p. 654.

as aforesaid, and in every case shall make the like alteration in the certified copy of the register book to be made by him as aforesaid, or in case such certified copy shall have been already made, provided he shall make and deliver in like manner a separate certified copy of the original erroneous entry, and of the marginal correction therein. made."

And it is provided by 1 Vict. c. 22, s. 28, that the Neglect to penalty for neglecting to transmit certified copies of re- transmit gister books to the superintendent registrar shall be 101.

Sections 45, 46, 47 of 6 & 7 Will. 4, c. 86, relate to the recovery of penalties, the forms of conviction and appeal.

copies, &c.

A doubt has been made, in what manner a marriage Register of celebrated by virtue of a special licence from the Arch- special licence. bishop of Canterbury shall be registered, especially where the marriage is solemnized in a private house, and by a clergyman not being the incumbent of the parish, and the incumbent refuses to permit the same to be entered in the parish register. But the doubt seems to be solved by the words of the act itself:-The register book of marriages is of the goods of the parish, and consequently the churchwardens (and not the minister) ought to have the keeping thereof; and the act says, all marriages celebrated in any church or chapel or within any such parish or chapelry, shall be entered in such register; and therefore if the churchwardens shall refuse to produce the register book for that purpose, they may be compelled thereunto by legal process; for where a thing by any act of parliament is required to be done, that also is required without which the thing itself cannot be.

Another doubt has been made, by what name the wife Wife's signashall subscribe the register, whether by the name which ture. she had before marriage, or by the newly-acquired name of her husband. In Scotland, the wife retains the name which she had before marriage, but in England the case is otherwise; for by the marriage she loses her former name, and legally receives the name of her husband. As appears from a pretty strong case, that of Bon v. Smith, in 38 Eliz. A man had issue a son and a daughter, and devised his land to his son in tail, and if he died without issue, that it should remain to the next of his name,―and died. The son died without issue; the daughter being then married, the question was, whether she should have this land. And it was held by the court, that she should not. For she had lost her name by her marriage. But it should go to the next heir male of the name. But if

Trial of marriage.

Presumption in favour of.

she had not been married at the time of her brother's death, she should have had it, for she was the next of the name (p).

SECT. 9.-Marriages when Void-Divorce.

Till the passing of the 20 & 21 Vict. c. 85, the ecclesiastical courts had jurisdiction in all cases of marriage. Now, however, by that act the jurisdiction in all matters matrimonial is taken from them, and vested in the new Court for Divorce and Matrimonial Causes. By the Legitimacy Declaration Act, 1858 (21 & 22 Vict. c. 93), power is given to this court to declare, on a petition filed for that purpose, that any person is legitimate, or that any marriage is or was valid.

The ecclesiastical courts used to have also jurisdiction in cases of general bastardy which was to be tried by the bishop's certificate. It seems, however, most probable that this would be holden to be one of the "matters matrimonial" over which the ecclesiastical courts have now no jurisdiction (q).

The law always presumes in favour of the validity of a marriage.

In Piers v. Piers (r) the House of Lords said, that the question of the validity of a marriage cannot be tried like any other question of fact which is independent of presumption, for the law will presume in favour of marriage.

There is a strong legal presumption in favour of marriage, particularly after the lapse of a great length of time, and this presumption must be met by strong, distinct, and satisfactory disproof.

Where, therefore, two persons had shown a distinct intention to marry, and a marriage had been, in form, celebrated between them, by a regularly ordained clergyman, in a private house, as if by special licence, and the parties, by their acts at the time, showed that they believed such marriage to be a real and valid marriage, the rule of presumption was applied in favour of its validity, though no licence could be found nor any entry of the granting of it, or of the marriage itself, could be discovered; and though the bishop of the diocese (during

(p) Cro. Eliz. 532.

(4) See Stephen's Commentaries (ed. 1858), vol. iii. p. 586. (r) 2 H. L. Cases, 331. See

also judgment of Lord Ellenborough and the King's Bench in Rex v. Brampton, 10 East, 282.

whose episcopacy the matter occurred), when examined many years afterwards on the subject, deposed to his belief that he had never granted any licence for such marriage.

With respect to marriages illegally solemnized without fraud in a church not licensed for the celebration of marriage, 14 & 15 Vict. c. 97, enacts as follows::

marriages,

good.

Sect. 25. "Where by error, and without any fraud, Marriages banns of matrimony have been published or marriages before June 19, solemnized in the church of any parish or district in which 1851, in church banns could not legally be published nor marriages chapels not legally solemnized, the banns of matrimony already pub- licensed for lished and marriages already solemnized in such church as aforesaid shall not, except where any action, suit, or other proceeding in relation to the validity of any such marriage was pending on the nineteenth day of June, one thousand eight hundred and fifty-one, be questioned on account of the said banns having been published or the said marriages solemnized in any such church as aforesaid, and the minister or ministers who solemnized the same shall not be liable to any ecclesiastical censure or to any other proceedings or penalties whatsoever by reason thereof; and the registers of all marriages so solemnized as aforesaid, except as aforesaid, or copies of such registers, shall be received in all courts of law and equity as evidence of such marriages respectively."

24 Vict. c. 16.

And 24 Vict. c. 16, by sect. 4, "Whereas by error The like probanns have been published and marriages have been vision in solemnized in churches and chapels duly consecrated, but in which churches or chapels banns cannot be legally published nor marriages by law be solemnized, and it is expedient to remove all doubt arising from the circumstances aforesaid touching the publications of such banns and the validity of such marriages: be it therefore enacted, that all banns already published and all marriages already solemnized in such churches and chapels as aforesaid shall not hereafter be questioned on account of the said banns having been published or the said marriages solemnized in a church or chapel not legally authorized for the publication of banns and solemnization of marriages, and the minister or ministers who solemnized the same shall not be liable to any ecclesiastical censures or to any proceedings or penalties by reason thereof, provided he or they be rightly ordained; and the registers of all marriages so solemnized as aforesaid, or copies of such registers, shall be received in all courts of law and equity as evidence of such marriages respectively: provided always, that