Ilderton against Ilderton
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1793 |
| Date | 19 June 1793 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 476
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER
Referred to, Jackson v. Spittall, 1870, L. R. 5 C. P. 549.
ilderton against ildkrton. Wednesday, June 19th, 1793. [Referred to, Jackson v. Spittall, 1870, L. R. 5 C. P. 549.] A marriage celebrated in Scotland (but not between persons who go thither for the purpose of evading the laws of England) will intitle the woman to dower in England. The lawfulness of such a marriage may be tried by a jury; a replication therefore to a plea of " ne unques accouple " in a writ of dower, alleging a marriage in Scotland, may conclude to the country : and in such replication, it is not necessary to state that the marriage was had in any place in England, by way of venue (a). This was a writ of dower unde nihil habet, and the pleadings were as follows, Northumberland to wit, Mary, otherwise Maria Ilderton, widow, who was the wife of Thomas Ilderton, Esquire, deceased, by Townley Ward, her attorney, demands against Robert Ilderton, the third part of ten messuages, ten barns, ten stables, four gardens, four orchards, one water corn-mill, 2000 acres of land, 2000 acres of meadow, 2000 acres of pasture, 2000 acres of moor, and 200 acres of woodland, with the appurtenances, in the parish of Ilderton in the county of Northumberland, as the dower of the said Mary, otherwise Maria, of the endowment of the said Thomas Ildertou, heretofore her husband, whereof she has nothing, &g. Plea. And the said Robert Ilderton by Henry Barney Mayhaw his attorney comes and says, that the said Mary, otherwise Maria, ought not to have her dower in this behalf, as having been the wife of the said Thomas ilderton deceased, because he says, that the said Mary, otherwise Maria, never was accoupled to the said Thomas (a) [Vide 1 Saund. 8 a. (n) 5th Edit.] ZH. SLI48. ILPERTON V. ITDERTON 477 Ilderfcon, deceased, in lawful matrimony. And this the said Robert Ilderton is ready to [146] verify, therefore he prays judgment if the said Mary, otherwise Maria, ought to have her dower of the messuages and tenements aforesaid, with the appurtenances. Replication. And the said Mary, otherwise Maria, by the said Townley Ward her attorney aforesaid, says, that she ought not by any thing in the plea of the said Robert above alleged, to be barred from having her dower aforesaid, in this behalf, because she says, that she the said Mary otherwise Maria, on the 6th day of September, in the year of our Lord 1774, was accoupled to the said Thomas Ilderton deceased, in lawful matrimony, at Edinburgh, in that part of Great Britain called Scotland, and this she prays may be enquired of by the country, &o. Demurrer. And the said Robert saitb, that the said plea of the said Mary, otherwise Maria, in manner and form aforesaid above pleaded, by way of reply to the said plea of the said Robert by him above pleaded, and the matters therein contained, are not sufficient in law for the said Mary, otherwise Maria, to have or maintain her said action thereof against him, and that he the said Robert is not bound or obliged by the law of the land to make answer thereto, and this he is ready to verify, wherefore, for want of a sufficient replication in this behalf, the said Robert, as before, prays judgment, atid that the said Mary, otherwise Maria, may be barred from having her dower aforesaid, in this behalf, and for causes of demurrer in law in this behalf, the said Robert, according to the form of the statute in such case made and provided, specially sets down and shews to the Court here, the causes following, (that is to say) that the said supposed marriage in the replication mentioned, and therein alleged to have been celebrated in that part of Great Britain called Scotland, is riot a marriage whereby, or by reason whereof, the said Mary, otherwise Maria, can by law claim or intitle herself to any dower of the tenements above mentioned. "And also for that the said Mary, otherwise Maria, hath not laid any place by way of venue, where the said supposed marriage was had." And also for that the said replication is ill concluded, by being concluded to the country ; and for that the said Mary, otherwise Maria, hath by her said replication and the conclusion thereof, attempted to put in issue, and draw to a trial of the country, a matter which is not by law triable by a jury of the country, "but which is of ecclesiastical cognizance, and which ought to be tried by the certificate of the bishop, to whom the right of certifying whether the said Mary, otherwise Maria, and [147] Thomas Ilderton deceased, were or were not accoupled in lawful matrimony, belongs. And also for that it does not appear to the court here, to what bishop, or other spiritual judge or person, any writ can or ought to be directed or sent, to inquire and certify whether the said Mary, otherwise Maria, was accoupled to the said Thomas Ilderton deceased, in lawful matrimony, or not," and also for that the said replication ia in other respects defective and informal. Joinder in Demurrer. This cause was first argued in Michaelmas term 1791, by Le Blanc, Serjt., for the .demandant, and Cockell, Serjt., for the tenant, and a second time in Hilary term 1792 by Lawrence, Serjt., for the demandant, and Bond, Serjt., for the tenant: after which, and before any judgment was given, the tenant died. In consequence of this a fresh writ was brought, and the pleadings being altered by the additional assignment of the causes of demurrer, marked with inverted commas (" "), a third argument came on in the present term, when Le Blanc, Serjt., argued for the demandant, and Adair, Serjt., for the tenant. It was admitted, on these arguments, at the Bar, arid assented to by the Bench, that the first cause of demurrer could not be maintained, it being taken as an undoubted proposition, that a marriage celebrated in Scotland was such a marriage as would irititle the woman to dower in England (a). The points, therefore, which were made on the part of the tenant, were two : 1. That the lawfulness of marriage was exclusively the subject of ecclesiastical cognizance, and therefore not to be tried by a jury of the (a) But this proposition is quite clear of the question, whether marriages celebrated in Scotland, between persons who go thither in order to evade the laws of England, be valid in England. See the case of Comptm v. Bearcroft before the delegates, shortly stated Bull. N. P. 113, 8vo. See also the observations on this subject, contained in a Dote Co. Litt. by Hargr. & Butl. p. 79 b. & 80 b. [See also Dalrymple v. Dalryrnple, 2 Haggard, 54. Scrimshire v. Scrimshire, Id. 395. Ruding v. Smith, Id. 376 (),] 478 ILDERTON V. ILDKBTON 2 H. BL. M& country. 2. That some place within the kingdom of England ought to have been laid aa a venue in the replication, where the marriage should have been alleged to have been celebrated. 1. Although the fact of marriage may be tried by the country, yet the lawfulness of it being a matter solely of ecclesiastical jurisdiction can be decided by no other mode than the certificate of the bishop, which is indispensable in the cases of dower and appeal. This principle, which arose from the circumstance of marriage being a sacrament of the Church of [148] Rome, is to be found in the earliest authorities in the law. Bracton lays it down "cum autem talia proponatur exceptio, quod dotem tabere non debeat, eo quod non fuit tali viro (per quern petit) matrimonialiter desponsata, vel legitimo matrimonio copulata, hujusmodi inquisitio fieri non potest nee debet in foro seculari, cum sit spirituale ; et ideo demandetur inquisitio faeieuda ordinario loci, sicut arehiepiscopo, episcopo, vel aliis privilegiatis, quibus papa hujus modi concesserit cognitionem," then follows the form of the writ to the archbishop or bishop, in which it is expressly said, quoniam hujusmodi causie cognitio ad forum speotat eccleiiasticum, &c.'' Bracton de Actione Dotis, 302 a. Thus also Fleta, lib. 5, c. 28, "Super conteiitionem autem desponsationis, et divortii celobrationem, non poterit justiciarius procedere in foro seculari; indeoque demandetur inquisitio facienda arehiepiscopo vel episcopo loci, quia hujusmodi causarutn eognitio spectat ad forum ecclesiasticum, quod convocatis convocandis, veritatem diligenter inquirant, et inde certiflcent jusliciariis per literas suaa patentes." So likewise Britton, cap. 107, 108, pp. 252, 255, Exceptiones de concubinage &c. is to the same effect. Thus too G-lanville says, "Si quis versus aliquem htereditatem aliquam tanquam bseres petal, et alius ei objiciat quod baeres inde esse non potest eo quod ex legitimo matrimonio non sit natus, tune quidem placitum illud in curia Domini Regis remanebit, et mandabitur archie- piscopo vel episcopo loci, quod de matrimonio ipso cognoscat; et quod inde judicaverit, id Domino Regi, vel ejus justiciariia scire facial," lib. 7, cap. 13, and then follows the writ to the bishop. And this principle is recognized by Lord Coke, Co. Litt. 33 a. 134 a. 4 Co. 29 a. Bunting v.Lepingwel,Moore, 169. 2 Roil. Abr. 584, 585, tit. Trial. Style, 10. Betswwth v. Betsworth, Bro. Abr. tit. Trial, pi. 16. 2 Wils. 122, 127, Robins v. Orutchley. It being clear therefore that the lawfulness of marriage can only be tried by the certificate of an Ecclesiastical Judge, though episcopacy has been abolished in Scotland, aod...
To continue reading
Request your trial
-
S v Van As
...word dan tot 'n fiksie omskep. Stuart, 1966 S.A.L.J., bl. 421, 424 - 425; R. v. Mathenjwa, aangehaal deur Van Niekerk, 1971 S.A.L.J., bl. 145. Dit is dwingend om B in gedagte te hou dat voorsienbaarheid nie die enigste nalatigheidsvereiste is nie. In eerste instansie moet die gevolg redelik......
-
The Sussex Peerage
...tha; it was impossible that there could be a valid marriage at Rome between Protestants by a Protestant clergy- - (a) 2 Hag. Con. 443. (b) 2 H. Bl. 145.man, such as the Roman law would recognise. As the evidence stands at your Lordships bar it would appear, however, that the Roman law would......
-
Sefuthi v Minister van Justisie en 'n Ander
...v Davis, 13 E.D.L. 171; (c) waar be-edigde verklarings gemaak is en waarop dan gearresteer is. Sien Moreno v Miller. 1 E.D.C. 145 te bl. 145; Carne v Howe, 15 S.C. 232 te bl. 235; Fyne v The African Realty Trust Ltd., 1906 E.D.L. 268; Stuart v Nkalumo, 1919 NPD 55; C Banburry v Watson, 1911......
-
Western Bank Bpk v Trust Bank van Afrika Bpk en Andere NNO
...Hotel and Theatre Co. Ltd. (in Liquidation), 1907 O.R.C. 42 op bl. 46-48; Victoria Falls Power Co. v. Colonial Treasurer, 1909 T.S. 140 op bl. 145-146; Deputy Sheriff of Pretoria v. Heymann, 1909 T.S. 280 op bl. 284; MacDonald Ltd. v. Radin, N.O., and Potchef-© Juta and Company (Pty) Ltd WE......