Ewing, falsely called Wheatley v Wheatley
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 1814 |
| Date | 06 May 1814 |
| Court | Consistory Court |
English Reports Citation: 161 E.R. 706
IN THE CONSISTORY COURT
Referred to, Moss v. Moss, [1897] P. 269.
EW1N&, FALSELY CALLED WHEATLEY V. WHEATLEY. 6th May, 1814. - Nullity of marriage, by reason of fraud and alteration of licence, not sustained. _ [Referred to,. Moss v. Moss, [1897] P. 269.] _ Daltoa-le-Dale, Durham, by a second licence obtained by the husband in whieh he akme was represented as being of age, Mr. Days consenting on the part of his daughter aa a minor. From the circumstances in evidence, however, it appeared that Mr. Jarvi* was not of age, as represented, at the time of the solemnization of either of the marriages, being little more than nineteen ; that his father had died in December, 1795, awl, as stated incidentally by his widow, Mrs. Jarvis, in her evidence, without a will; that she had on the 26th of Augmst, 1797, intermarried again with Joseph Turner, Esq., and was thereby deprived by law of the right of consent to her son's marriage; that no guardian of his person with such right of consent had been Appointed by the Court of Chancery, as appeared by due search in the records of that Court. 2 HAfl. C0N. 176. EWING V. WHEATLEY 707 This was a suit of nullity of marriage, brought by the wife against Francis WheafcLey, of the parish of Saint Mary-le-bone, by reason of fraud and alteration of licence, as described in the citation. The libel was opposed by Dr Swabey, who contended that the citation, which described the cause of nullity to be founded on fraud, was not supported by the facts pleaded in the libel.* That [176] the libel pleaded the marriage act, and that the marriage was had without licence duly had and obtained; but these were words not to be found in the act of parliament, and had not any definite sense in law that would support the conclusion of nullity, for which the Court was prayed to pronounce. It further stated that, in order fraudulently to procure a licence, the husband took an oath that the wife was of the pariah of St George, Hanover-Square, when, in reality, she resided in [177] St. Mary-le-bone. The only restriction, on the description of residence, was that under the 104th canon, which applied only to persons in widowhood and was not enforced at any time as a ground of nullity. The canon itself explains what is intended by the words " that every suit, licence, or dispensation shall be held void, to all effects and purposes, as if there had never been any such granted :" by the clause immediately following, "and the parties marrying by virtue thereof shall be subject to the punishments which are appointed for clandestine marriages." The consequence of nullity did not attend clandestine marriages previous to the marriage act; and that statute expressly declares that the residence of the party ahall not be enquired into for the purpose of setting aside the marriage after it has been celebrated. It cannot therefore be considered, on any ground, as a material part of the description; and no variance of that kind can be fatal to the validity of the marriage. It is further pleaded that the licence was granted in the name of Martha Ewen, and afterwards altered by the husband, to the name of Ewing this objection afco was immaterial, as the variation was very slight, and not proceeding from fraud or design; and it had been decided, in the cases of Cockburn v. Garnault (Commissary of Hurry, 4th May, 1792. Arches, 4th Dec., 1793) and Cope v. Burt (vol i. p. 434) that the mere variation of name would not vitiate a licence, where there was no doubt as to the identity, and no fraud practised in obtaining the licence in those terms. That the circumstances which were pleaded, respecting the motives and objects of 178] the husband, were altogether irrelevant, as the parties were both of age, and were both privy to all the acts that were now set up as causes of nullity, that the marriage, therefore, could not be affected on any such ground. In support of the libel, Dr Stoddart and Dr. Lushington contended that the * The third article of the libel set forth, " That, in order...
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