The Queen v John Burke

• Jurisdiction: Ireland
• Judgment Date: 09 June 1843
• Date: 09 June 1843
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

THE QUEEN

and

JOHN BURKE.

Regina v. OrgillENR 9 C. & P. 80.

Ray v. Sherwood and Ray 1 Curtis' Ecel. R. 188.

CASES AT LAW. 549 tion of the lease, which is said to be a negative pregnant, importing that the lessee had title, but that the title had expired. But reading the whole of the breach, the meaning seems to be, that neither the lessee nor the defendants had such title as enabled the executors to renew at the expiration of the time ; to which I add, that the defendants' plea is a plain admission that they had title, and would have renewed. Upon all these grounds, I am of opinion that the demurrers must be allowed, and judgment must be given on these demurrers for the plaintiff. PERRIN, J. I concur in the judgment which has been pronounced. The fourth plea is bad as to the third count being pleaded generally to all, and is therefore bad with respect to the declaration. It is not necessary to give an opinion whether the declaration would have been bad if it had been demurred to, and the defects had not been cured by pleading over. Judgment for the demurrer. THE QUEEN v. JOHN BURKE. June 9. BIG/um-In this case the prisoner had been indicted for bigamy at A marriage the Spring Assizes of 1843 for the county of Cork, and the follow- withontthe - grees de of conÂÂing special verdict had been found :-That the prisoner John Burke sanguinity for bidden by the was married to Margaret Fitzgerald on the 27th of January 1839, 33rd Hen. 8, by the Rev. Thomas Murray, by the celebration of the ceremony c. 6, celebra ted between of marriage, under the circumstances hereinafter mentioned, and that Roman CathoÂÂthe said John Burke afterwards, and during the lifetime of the said lies by a Ro man Catholic Margaret Fitzgerald, on the 3rd of December 1840, was married to Priest, is a valid - Honora Cadogan by the Rev. William Toomey. There was a fur- naeand g, mar ther finding, that John Burke and Margaret Fitzgerald were, at the sufficient to make a second time of the said marriage between them, Roman Catholics, and of the marriage a congregation of the said Thomas Murray ; and that Thomas Murray was the within e Statute of Bigamy. Sem. ble- A. declaration made by parties, in order to the celebration of a marriage, and to the person who was to celebrate it, and by which he was induced to celebrate it, that they were competent to contract a alid marriage would, on an indictment for bigamy against the party making such a representation, conclude that person from denying the truth of the representation so made, in order thereby to invalidate the marriage. Semble- A. voidable marriage is sufficient to constitute a second marriage bigamy, until annulled by a Court of competent jurisdiction. Stubble- A special verdict need not be as technical as an indictment; it need not nega tive every possible fact. 4 c 550 CASES AT LAW. at the time the marriage was solemnized by him, a Roman Catholic Priest in holy orders ; and that Honora Cadogan and John Burke were at the time of the marriage between them, Roman Catholics; and that the Rev. William Toomey was at the time the marriage was so solemnized by him, a Roman Catholic Priest in holy orders ; and that Honora Cadogan and John Burke were members of his congregation. It was further found that John Burke and Margaret Fitzgerald were related to each other by blood, being great grandchildren of the same great grandÂÂfather and great grandmother, and that by the discipline and rules of the Church of Rome, persons so related to each other were prohibited to intermarry without a dispensation from a bishop of that Church ; and that there was no dispensation from a bishop of that Church to remove the prohibition against the said marriage of John Burke and Margaret FitzÂÂgerald, and that for want of such dispensation by the discipline and rules of said Church, the marriage so had between them was, in consideration of that Church, null and void. It further found, that the Rev. Thomas Murray was not, at the time of said marriage between John Burke and Margaret Fitzgerald, cognizant of the fact of their being related to each other in the third degree of consanguinity as aforesaid ; and that the said John Burke and Margaret Fitzgerald having represented themselves to be related by blood, as being one a great grandchild, and the other a great great grandchild, of the same ancestors, a dispensation was had from the vicar-general of a bishop of the Church of Rome, and shown by the parties to the Rev. Thomas Murray at the time of the said marriage, such vicar-general not being, by the rules and discipline of that Church, comÂÂpetent to grant dispensations removing the said prohibition when the parties were related, as the said parties were, in the third degree of conÂÂsanguinity ; but who was competent by the said rules and discipline to grant a dispensation when the parties were, one in the third, and one in the fourth, degree of consanguinity ; in which degrees the said parties at the time of said marriage represented themselves to be related. It was further found, that by the discipline and rules of said Church, the said dispensation granted by the vicar-general was, in the consideration of the said Church, null and void, and that the said first marriage was, notwithÂÂstanding the said dispensation, and notwithstanding the fact of the said Thomas Murray being at the time thereof ignorant of the degree of relationship in which the parties really stood, null and void by the rules and discipline of said Church in the consideration thereof. It was further found, that the said ceremony of marriage so solemnized by the said Thomas Murray, was partly in the Latin...