to be sent to a person whom he knows to be an infant any circular, notice, advertisement, letter, telegram, or other document which invites or may reasonably be implied to invite the person receiving it to make any bet or wager, or to enter into or take any share or interest in any betting or wagering transaction, or to apply to any person, or at any place with a view to obtaining information or advice for the purpose of any bet or wager, or for information as to any race, fight, game, sport, or other contingency upon which betting or wagering is generally carried on, he shall be guilty of a misdemeanour, and shall be liable if convicted on indictment to imprisonment with or without hard labour, for a term not exceeding three months, or to a fine not exceeding one hundred pounds, or to both imprisonment and fine. . .

(2) If any such circular, notice, advertisement, letter, telegram or other document as in this section mentioned, names or refers to any one as a person to whom any payment may be made, or from whom information may be obtained for the purpose of or in relation to betting or wagering, the person so named or referred to shall be deemed to have sent or caused to be sent such document as aforesaid, unless he proves that he had not consented to be so named, and that he was not in any way a party to, and was wholly ignorant of the sending of such document.'

S. 3 provides that if any such document as is mentioned in the former sections is sent to an infant at any university, college, school, or other place of education the person sending or causing the same to be sent shall be deemed to have known that such person was an infant, unless he proves that he had reasonable ground for believing such person to be of full age.'

A bookmaker instructed his clerk not to send circulars to anyone at an university, but he sent one to an undergraduate at Cambridge addressed to him at his licensed lodging; Channell and Bray JJ. quashed the master's conviction because he could not be presumed to know whether an undergraduate lived there or not; but L. Alverstone C.J. thought that licensed lodgings were clearly within s. 3, and the infant living there, 'at' the university, and dissented: Milton v. Studd, 1910, 2 K. B. 118; 79 L. J. K. B. 638; 26 T. L. R. 392; 74 J. P. 219.

These offences are not within the Vexatious Indictments A.

Statute] This offence was originally only of ecclesiastical cognisance, but was made a felony by 1 Jac. 1, 11, rpd. by 9 G. 4, 31, 1 (and 74, 125; India).

By 24-5 V. 100, 57: 'Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England, or Ireland, or elsewhere, shall be guilty of felony, and being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding seven years'; and any such offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the offender shall be apprehended, or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place: Provided, that nothing in this section contained shall extend [1] to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of her Majesty, or [2] to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or [3] shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or [4] to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.' For the old law on the second ‘marriage,' see 1 Hale P. C. 692; East P. C. 465.

Proof The prosecution must prove: 1. The marriage and the second ceremony; 2. The identity of the parties; 3. That the first spouse is alive; and if he or she has been absent for seven years, then, 4. That defendant knew he or she was alive.

Validity of either] Very considerable difficulty occurs, in some cases, in ascertaining how far either or both marriages must be shown to be valid. With regard to the validity of the second marriage, but for the existence of the first marriage, considerable doubt used to exist, for it was thought that it was necessary to prove such a legal marriage as would, but for the first marriage, have been a binding marriage for all purposes. But it was held, that where a woman already married, and having a husband alive, marries with the widower of her deceased sister, she was guilty of bigamy, though by 5-6 W. 4, 54, 2 (rpd. in so far as the marriage is a civil contract' by 7 E. 7, 47), such a marriage is declared to be 'null and void to all intents and purposes whatsoever.' Brawn and Webb, 1 C. & K. 144, 1843, where L. Denman C.J. said: 'It is the appearing to contract a second marriage and the going through the ceremony which constitutes bigamy.' And in Allen, L. R. 1 C. C. R. 367; 41 L. J. M. C. 97; 12 Cox C. O. 193,

1872, where a man in the lifetime of his second wife married a niece of his first, it was held by sixteen judges, confirming the above decision, and disapproving of Fanning, 17 Ir. C. L. 289; 10 Cox C. C. 411, 1866, that where a person already bound by an existing marriage goes through a form of marriage known to and recognised by the law as capable of producing a valid marriage, that will be a bigamous marriage, although invalid by reason of some legal disability in the parties. If, however, the form of marriage gone through is not proved to be one recognised by the law, it is not a bigamous marriage. Burt v. Burt, 29 L. J. P. & M. 133; 2 Sw. & Tr. 88, 1860, where without formal proof of the law of Australia the Divorce Court declined to say that a marriage there was valid (though there was no reason to doubt it). This case was not doubted in Allen, where Cockburn C.J. said Burt was one of a form of marriage 'unknown to the law.'

Where in a marriage before a registrar defendant, who had been previously married, gave a false name, whether with or without the knowledge of the woman there was no evidence, it was held that this would not acquit him of the bigamy. Rea, L. R. 1 C. C. R. 365; 41 L. J. M. O. 92; 12 Cox C. C. 190, 1872. Kelly C.B. said that as the ss. regulating marriages on a registrar's certificate, viz. 6-7 W. 4, 85, 4 and 42 (latter partly rpd., 61-2 V. 58, 15), followed those by banns (see below), they must receive the same construction, and cases under them must be decided on the same principles. Therefore the knowledge of irregularity must be that of both parties; as that was not shown here, and the presumptions in favour of marriage clearly throw the burden of proof of invalidity upon the party alleging it,' the conviction was affirmed. He would not say that even if both parties knew of the misnomer there would have been no bigamy. Of. Allen, and Wroxton, below.

Valid marriage-not presumed] A marriage in fact must be proved by the prosecution; whereas 'general reputation is usually admissible to establish the fact of parties being married,' i.e. in civil cases. T. s. 578. 'An action for criminal conversation is the only civil case where it is necessary to prove an actual marriage.' L. Mansfield, Birt v. Barlow, which see; and bigamy the only criminal case: Morris v. Miller, Burr. 2057; 1 W. Bl. 632, 1767. Smith v. Huson, 1 Phill. at 313-14, 1811.

It is not sufficient to prove cohabitation and marriage by reputation. Catherwood v. Caslon, 13 M. & W. at 265, 1844. Nor by a copy of the certificate of marriage without evidence of the identity of the parties, although it can be proved that defendant cohabited with a person of the same name immediately afterwards. Simpson, 15 Cox C. Č. 323, 1883. Cf. Atkinson, 1814; Lindsay, below.

'But a marriage in fact may be sufficiently established by proving that the ceremony took place between the parties without proving the preliminary notices, licences, banns or consents or residence for the prescribed period, or that the place of solemnisation was one where the ceremony might lawfully be performed, or the celebrant a person competent to officiate': 1 Russ. Cri 982; see Cresswell, below.

Defence] If defendant sets up a valid subsisting marriage of the person supposed to be his or her 'real' spouse at the time of the bigamous marriage charged, he or she will be allowed to prove that previous marriage by evidence of cohabitation and reputation, although the prosecutor is bound to prove the true marriage he sets up strictly,

Valid Marriages in England.

431

for the prisoner is in the position of an innocent third party,' and 'a crime cannot be presumed in favour of the prosecutor or against defendant. Wilson, 3 F. & F. 119, 1862, where A. indicted for bigamy in 1858, showed in this way, that when she was married' in 1848 to B., B. was already married, and his reputed wife was alive in 1851; B.'s marriage before 1848, in Canada, was only proved by reputation; and Compton J. thought that though there might be some technical difficulty in proving it, if there was reasonable doubt there ought to be an acquittal.

Where the evidence tended rather to shew concubinage, after a' Gretna Green ceremony, an acquittal was directed, although a writer to the signet proved that it was a good marriage by the law of Scotland: Graham, 2 Lew. 97, 1834: the officiating innkeeper's certificate' was rejected. And perhaps the defence of a marriage reputedly good by foreign-or, at least, non-Christian-law, is not open; see Naguib,

below.

Valid marriage-defendant's admission] In Newton, 2 Moo. & Rob. 503, 1843, Wightman J. held that defendant's admissions, deliberately made against his own interest, of a previous marriage in a foreign country are sufficient evidence of such marriage, without proving it to have been celebrated according to the law of that country. S. C. Simmonsto, 1 C. & K. 164. But in Flaherty, 2 O. & K. 782, 1847, where a man went to a police station and stated that he had committed bigamy, and when and where the real marriage took place, and while in custody signed a statement to the same effect, Pollock C.B. thought this, though some evidence, of the marriage, was not sufficient: not guilty. And in Savage, 13 Cox C. C. 178, 1876, Lush J. declined to follow Newton; in Lindsay, 18 T. L. R. 761; 66 J. P. 505, 1902, Walton J. accepted Savage: the evidence of the good marriage was the certificate of the marrying priest, the deposition of a daughter that it referred to her parents, and an admission by defendant on arrest, that's all right, but I did not know that my former wife was alive': the certificate of the registrar for the district would have been admissible.

These decisions do not touch defendant's admissions on oath; nor is such strictness now always observed: see Birtles, below.

Spouse-witness] By 4-5 G. 5, 58, 28 (3): The wife or husband of a person charged with bigamy may be called as a witness either for the prosecution or defence, and without the consent of the person charged'; the last words are discussed under this title.

6

Valid marriage in England] It is clear that unless there has been a valid marriage, bigamy cannot be committed. When the marriage takes place in England, otherwise than by special licence, it may be celebrated either in (i.) any place licensed by the bishop for divine service (4 G. 4, 76, 13; 5 G. 4, 32), or a church or chapel in which marriages may be solemnised according to the rites of the Church of England' (6-7 W. 4, 85, 39); or (ii.) 'a separate building certified according to law as a place of religious worship' when 'registered for solemnising marriages therein' (ib. s. 18); or (iii.) a registry office (ib. s. 21); or (iv.) any place which is according to the usages' of Quakers and Jews (ib. s. 2, amended 23-4 V. 18, 1).

Evidence-register] In all these cases it is sufficient to call a person who was present at the ceremony, and it will be presumed to have been

in all respects duly performed; or, without calling any person who was present at the marriage, it will be sufficient, coupled with evidence of the identity of the parties to produce either the register (if any) or an examined copy of the register, or a certified copy of the register from the general registry office, which is made evidence by 6-7 W. 4, 86, 38; and see now 14-15 V. 99, 14. See for non-parochial registers, 3-4 V. 92, 17; 21-2 V. 25, 3. Hence, in bigamy, the original must be produced from Somerset House, to prove a marriage: 1 Russ. Cri. 993; for licensing by a bishop, 6-7 W. 4, 85, 26.

The other requisites of a valid marriage must be sought in the Marriage Acts: see (Index and) Geary on Marriage (1892), or Eversley and Craies, The Marriage Laws of the British Empire (1910). The effect of 49-50 V. 14 (except on the marriage usages of Quakers and Jews), is that it is still felony to solemnise a marriage except between 8 a.m. and 3 p.m. without a special licence from the Archbishop of Canterbury. Chitty's Statutes, 5th ed., by Lely, 'Marriage,' p. 62 x. See Clergymen. The certificate, under s. 38, above, was held to be sufficient primâ facie evidence of the marriage having been duly performed in Hawes, 1 Den. C. C. 270; 2 Cox C. C. 432, 1847; though the proof of a person present at the marriage was sufficient primâ facie evidence without it; but it has nevertheless been the general practice in respect of class ii. above, under s. 18, to adduce some evidence both of the presence of the registrar, for which, by 61-2 V. 58, 4, a 'duly authorised person' is substituted, and that the chapel was duly registered. In Manwaring, D. & B. C. C. 132; 7 Cox C. Č. 192, 1856, however, at least four judges out of five were of opinion that oral proof that the marriage was celebrated in a chapel, in presence of the registrar, being aided by the presumption omnia rite esse acta was sufficient without proving that the chapel was registered; and this was followed by Willes J., after consulting Pollock C.B. in Cradock, 3 F. & F. 837, 1863.

Validity presumed] While the parish church was under repair, divine service had been several times performed by a clerk in holy orders in a chamber at a private hall, and the marriage of defendant was solemnised there. Though there was no evidence that the chamber was licensed for the performance of divine service or for marriages, it was presumed in favour of the marriage. L. Coleridge C.J. said: 'We are of opinion that the marriage service having been performed in a place where divine service was several times performed, the rule 'omnia presumuntur rite esse acta' applies, and that we must assume that the place was properly licensed, and that the clergyman performing the service was not guilty of the grave offence of marrying persons in an unlicensed place. Cresswell, 13 Cox C. C. 127; 1 Q. B. D. 446; 45 L. J. M. C. 77, 1876: C. C. R.

In

The validity of the ceremony is presumed on the production of the certificate of the registrar, under 6-7 W. 4, 86, 35, 37. See Hawes, above, and Geary on Marriage, p. 125 (ch. 3, s. 1c); but cf. Nokes v. Milward, 2 Add. at 390, 1824, for 'irregular' marriages. Edwards, 1814, the second ceremony was proved by defendant's signature of the register and his written note for the publication of the banns, but it was also proved that he had acknowledged the 'marriage.'

Valid marriage in Scotland] is subject to the same general considerations as marriages abroad. Cf. Dicey, below, at 78 n.1 But by 19-20 V. 96, 1: After the 31st day of December, 1856, no irregular