Thelwall v Yelverton

• Jurisdiction: Ireland
• Judgment Date: 05 May 1862
• Date: 05 May 1862
• Court: Court of Common Pleas (Ireland)

Common Pleas.

THELWALL

and

YELVERTON.

Dalrymple v. Dalrymple 2 Hagg. Consist. Cas. 81; App. 139.

Beamish v. BeamishIRIR 6 Ir. Com. Law Rep. 213; S. C., 11 Ir. Com. Law Rep. 530.

Earl Nelson v. Lord BridportENR 8 Beav. 527.

Bruce v. BurkeENR 2 Addams, 471.

Sussex Peerage caseENR 11 CL & Fin. 85.

M'Cormick v. Garnett 5 De G., M'N. & G. 278.

Hogan v. Craigie M'Cl. & Rob. 965.

Honeyman v. Campbell 2 Dow. & Cl. 265.

Bell v. Graham 13 Moo. P. C. Cas. 242.

Butler v. Earl of Mountgarrett 7 H. of L. Cas. 647.

Bain v. Whitehaven and Furniss Junction Railway Company 2 H. of L. Cas. 1.

Adams v. WalkerENR 1 Dow. 148.

Piers v. Piers 2 H. of L. Cas. 371.

Dowdale's caseUNK 6 Rep. 350.

Bridges v. SaerENR 4 Mod. 89.

Kirwan v. Kirwan Batt. R. 712.

Steadman v. PowellENR 2 Addams, 58.

Rex v. Hanly Cited in Supp. to Carrington's Crim. Law, 254.

Re OrgillENR 9 C. & P. 80.

Regina v. Burke 5 Ir. Law Rep. 549.

Swift v. Kelly 3 Knapp P. C. Cas. 257.

Field's Marriage-annulling Bill 2 H. of L. Cas. 48.

Meade's case Howard's Popery Cas. 154.

O'Connor v. M'Cann Milward, 204.

Gibbons v. Gibbons 7 Ir. Jur., N. S., 63.

D'Arcy's infantsIR 11 Ir. Com. Law Rep. 298.

Sir Rowland Heyward's caseENR 3 Dyer, 372, a.

Re Ward 6 N. & Man. 38.

Palmer v. GoodenENR 8 M. & W. 890.

White v. SharpENR 12 M. & W. 712.

Duke v. ForbesENR 1 Exch. 356.

Ball v. Mannin 1 D. & Cl. 880.

Scanlan v. Sceales 5 Ir. Law Rep. 158.

Power v. St. George 4 Ir. Law Rep. 110.

Rutter v. ChapmanENR 8 M. & W. 62.

Trimleston v. KemmisENR 9 Cl. & Fin. 749.

Avery v. BowdenENR 6 El. & Bl. 973-4.

Nepean v. DoeENR 2 M. & W. 894.

M'Mahon v. Lennard 6 H. of L. Cas. 993.

Wheelton v. HardistyENR 8 El. & Bl. 232.

Househill Coal and Iron Company v. NeilsonENR 9 Cl. & Fin. 788.

Davies v. Lowndes 1 Sco. N. R. 328.

Kirwan v. Kirwan Batty, 712.

O'Connor v. M'Cann Milward, 204.

Swift v. Kelly 3 Knapp P. C. Cas. 286.

Re Darcy 11 Ir. Com. Law, 298.

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

Farrell v. Tomlinson 5 Bro. Par. Ca. 442 (Tomlin's ed.).

M'Mahon v. Lennard 6 H. of L. Cas. 996.

Ireland v. Evans's Charities 5 H. of L. Cas. 405.

Davies v. Lowndes 1 Man. & Gr. 473.

Bushell's caseENR Vaughan, 150.

Evans v. CassidyUNK 11 Ir. Eq. Rep. 250.

Swan v. The Governors of Stevens's Hospital Howard's Popery Cases, 136.

Close v. Hamilton Howards's Popery Cases, 30.

O'Connor v. M'Cann Mil. Rep. 204.

Lessee Knight v. NepeanENR 2 M. & W. 894.

Mersey Dock Board v. PenhallooENR Since reported, 7 H. & N. 329.

188 COMMON LAW REPORTS. E. T. 1862. Common Pleas THELWALL v. YELVERTON. (Common Pleas.) May 1, 2, 3, 5. • In an action THIS was an action to recover the sum of £259. 17s. 3d, for board, for necessaries provided by lodging, medical attendance, and necessaries supplied to defendant's the plaintiff for the defendant's wife by the plaintiff. The defence traversed the several causes of wife, the sub stantial ques- action. The action was tried at the Sittings after Hilary Term tion was as to the fact of a 1860, before MONAHAN, C. J. The substantial question at issue marriage having taken place between the defendant and his alleged wife. The plaintiff gave evidence for the purpose of showing that, according to the law of Scotland, a valid, though irregular marriage had been celebrated. Professional witnesses called at either side gave conflicting evidence respecting the state of the marriage law of Scotland as bearing upon the facts of the case. Held, that the Judge was right in leaving it entirely to the jury, as a question of fact, to say whether the alleged Scotch marriage was a valid contract in accordance with the law of that country, and that he was not bound to have directed them as to what was the state of the law of Scotland with reference to the facts in evidence. Evidence was further given of a marriage having been subsequently celebrated in Ireland between the parties, by a Roman Catholic priest in holy orders, according to the rites of that Church. It was proved on the part of the plaintiff that the defendant had, within twelve months, occasionally attended Roman Catholic worÂship, that he had expressed himself in private conversations in approval of the doctrines of the Church of Rome, and that he had declared himself to be of that persuasion to the officiating clergyman. It was on the other hand proved, on the part of the defendant, that he had been born and educated in the doctrines of the Church of England ; that he had never publicly renounced that profession, and that he had attended the Episcopal Service frequently during the twelve months next before the ceremony. Held, per MONAHAN, C. J., and BALL, J., that there was evidence from which a jury might infer that the defendant had been a Roman Catholic throughout the entire period of twelve months before the marriage, so as to take the case out of the operation of the 19 G. 2, c 13 (Ir.); the latter statute having reference to actual religious belief, and not merely nominal profession. Held contra, per KEOGH and CHRISTIAN, JJ., that notwithstanding the evidence relied on by the plaintiff, the learned Judge was bound to tell the jury that the defendant had not ceased during the period in question to profess the Protestant religion within the meaning of the statute,* and that the marriage was void in law. Quire, as to the practice of inserting in the bill of exceptions the findings of the jury upon collateral questions left to them by the Judge. * 19 G. 2, c. 13, s. 1 (Ir.), enacts that.-" Every marriage that shall be cele . brated after the 1st clay of May 1746, between a Papist and any person who hath been or hath professed him or herself to be a Protestant at any time within twelve months before such celebration of marriage, or between two Protestants, if celeÂbrated by a Popish priest, shall be and is hereby declared absolutely null and void to all intents and purposes, without any process, judgment or sentence of law whatever." COMMON LAW REPORTS. 189 was, whether the party for whom the plaintiff had provided the E. T. 1862. necessaries was the defendant's wife? The plaintiff relied upon the Common Pleas fact of the performance of two ceremonies of marriage between the THELWALL defendant and Maria Theresa Longworth, one of which took place YELVEITON. in Scotland, and which the plaintiff contended to be binding by the law of Scotland ; the other performed in Ireland, by a Roman Catholic clergyman. The defendant insisted that no such contract was entered into as by the law of Scotland would suffice to constiÂtute a legal marriage ; and, secondly, that as regarded the Irish marriage, even though such might have been valid by the Common Law of the country prior to the passing of the 19 G. 2, c. 13 (Ir.), that it was invalid, on the ground that Major Yelverton at the time of the marriage, or rather twelve months next before same, was or had professed himself to,be a Protestant. A great mass of evidence was given at the trial, the material portion of which is referred to in the judgments of the learned Judges. The LORD CHIEF JUSTICE having, in his charge, recapitulated the evidence relating to the two alleged marriages, and stated the law bearing on same, left to the jury the following questions : first, was such a contract entered into in Scotland? secondly, was it a binding marriage according to the Scotch law? And he informed the jury that if they should find in favor of the alleged Scotch marriage, they need not consider the validity of. the Irish one ; but in case they should find against the Scotch marriage, they should then consider as to whether a valid Irish marriage had been celebrated between the parties ; which depended altogether on the matters he had already explained to them : and if they should find in favor of either marriage, they should find for the plaintiff on the issues joined on the record. Counsel for defendant took the following exceptions :- First-That upon the contradictory evidence given at the trial, the Judge should have determined the Scotch law himself, and should have told the jury that, under the circumstances of the ceremony, no person having been present, and it not having been evidenced by any writing, or performed with the intention of fully and completely perfecting thee relation of husband wife, such a ceremony did not constitute a valid marriage. VOL. 14. 25 L 190 COMMON LAW REPORTS. Secondly-That the Judge should have told the jury that, as it appeared by the evidence of Theresa Yelverton herself, that at the time of and after the alleged mutual acknowledgement said Theresa Yelverton considered herself his wife, by the law of ScotÂland, but not in fact, as she hid, scruples of a religious nature, he insisting on the rights of a husband, which she would not allow until a further ceremony by a Roman Catholic clergyman, such alleged mutual acknowledgement did not constitute a valid marriage. Thirdly-Because the defendant required the Judge to tell the jury that, to constitute a ceremony of marriage, celebrated in IreÂland by a Roman Catholic priest, it was necessary that both parties, for twelve months previous to such ceremony, should have uniÂformly, uninterruptedly, and publicly professed the Roman Catholic religion ; and as there was no evidence of such profession by the defendant, the ceremony, alleged to be performed by the Rev. Mr. Mooney between the parties did not constitute a marriage : which he refused to do, and left the case to the jury. Fourthly-Because the defendant required the Judge to tell the jury that, if they believed that, within twelve months previous to the ceremony performed by the Rev. Mr. Mooney, the defendant attended Divine worship in the Protestant Episcopal Church of Scotland, and in the Established Church of England and Ireland, in Ireland., and that he did so as a professing Protestant, then such ceremony did not constitute a valid marriage : which he refused...