she understood it to be the marriage service of the church of England; they also gave her a certificate of the marriage, but she had lost it: the court held the marriage to be valid; the British troops being in possession of the place, the English law then prevailed there; and this marriage being per verba de præsenti, and performed by a person who must be presumed to have been a clergyman (whether of the English or Roman catholic faith was immaterial) was a valid marriage there by the law of England, independently of the marriage Act, which does not extend to colonies. R. v. Brampton, 10 East, 282. Also, for relieving doubts as to the validity of marriages in the chapel house of a British ambassador or minister, or in the chapel belonging to a British factory abroad, or in the house of any British subject residing in such factory, or solemnized within the British lines by any chaplain or officer or other person officiating under the orders of the commanding officer, it is enacted that all such marriages shall be deemed valid in law, as if they had been duly solemnized within Her Majesty's dominions. 4 G. 4, c. 91, s. 1. Also, a marriage before a British consul abroad, solemnized in the manner directed by stat. 12 & 13 Vict. c. 68, between persons both or one of whom is a British subject, shall be deemed and held to be as valid in law as if the same had been solemnized within Her Majesty's dominions, with a due observance of all forms required by law. 12 & 13 Vict, c. 68, 88. 1, 9.

R.

The actual marriage must be proved; no evidence of reputation merely, or of the parties having lived together as husband and wife, will be sufficient. See Morris v. Miller, 4 Burr. 2057, W. Bl. 632. This may be proved by any person who was actually present at it, and saw the ceremony performed, and can identify the parties; and this will be deemed sufficient, without proof of the registration of the marriage, or of any licence, or publication of banns, &c. v. Allison, alias Wilkinson, R. & Ry. 109. And the second wife is a competent person to prove the marriage; the first, not. The admission of the first marriage by the prisoner, is not of itself sufficient evidence; R. v. Flaherty, 2 Car, & K. 782; at least, not unless the admission comprise all the facts necessary to constitute a legal marriage. R. v. Simonsto, Car. & M. 164. If there be any variance between the indictment and proof in the names of the parties, the indictment may be amended. 14 § 15 Vict. c. 100, s. 1; ante, p. 100.

It is immaterial where the first marriage was solemnized; but if the second marriage were contracted out of England, it must be proved that the defendant was then a British subject. See 9 G. 4, c. 31, 8. 22. If either marriage were in a foreign country, proof that it was solemnized in the manner usual in that country, will be good presumptive proof that it was a

valid marriage. Lacon v. Higgins, 3 Stark. 178. If it be necessary however to prove the law of the foreign country in this respect, it must be proved by some person, who from his profession or office has a competent knowledge of the subject; and he may refer to foreign law books to refresh his memory or confirm his opinion, but the law itself must be taken from his evidence. Sussex Peerage case, 11 Cl. & Fin. 85, 134; and see 1 Car. & K. 751. In this country it must be in a church or chapel, unless it have been by special licence, or that both the parties are Quakers or Jews; and if the church have been built in a new district, or the chapel erected, since the passing of stat. 6 G. 4, e. 92, we have seen (ante, p. 611) that it must also be proved that the bishop of the diocese had authorized the publication of banns and the celebration of marriages in it.

2. It must be proved that the first wife or husband was alive, at the time of the second marriage. And a letter received from abroad in her or his handwriting, is evidence of the party being alive at the time the letter appears to have been written. Reed v. Norman, 8 Car. § P. 65.

But the statute (9 G. 4, c. 31, s. 22) excepts from its operation-" 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;" (see R. v. Thomas Jones, Car. & M. 614) ;—also, any person, who at the time of such second marriage, shall have been divorced from the bond of the first marriage; "also " any person whose former marriage shall have been de→ clared void by the sentence of any court of competent jurisdiction." As to this last exception, however, it has been holden that where the first marriage was in England, a Scotch divorce, à vinculo, for adultery, was no defence to an indictment for bigamy in afterwards marrying a second time; be'cause no sentence or act of any foreign country or state can dissolve an English marriage à vinculo matrimonii, for a ground on which it is not liable to be dissolved in England. R. v. Lolley, R. & Ry. 237. ·

But it is no defence that the second marriage was void. And therefore where a married woman married the widower of her deceased sister, and, being indicted for bigamy, it was objected that the marriage was void by stat. 5 & 6 W. 4, c. 54, s. 2, Ld. Denman, C. J., held it to be no defence; for if it were so, there could be no conviction for bigamy, inasmuch as the second marriage is in all cases void; and the man in that case being indicted also, as accessory before the fact, his Lordship held that if he knew that the

woman was married, and her husband alive, and that he incited or advised her to marry, he was guilty; they were both convicted. R. v. Brawn and Webb, 1 Car. § K. 144.

CHAPTER IV.

Conspiracy.

Indictment.

The jurors for our Lady the Queen, upon their to wit. oath present, that A. B., E. F., G. H., and J. K., wickedly devising and intending to defraud one C. D., on the

day of, in the year of our Lord, did amongst themselves unlawfully conspire, combine, confederate, and agree together, falsely and fraudulently to [cheat and defraud the said C. D. of a certain large sum of money, to wit, the sum of £- under the false and fraudulent pretence that the said A. B., in consideration of such sum of money, would secure and had the means of securing unto the said C. D., his executors, administrators, and assigns, a certain annuity, to wit, an annuity of £, to be payable during the natural life of the said A. B.]: And the jurors aforesaid, upon their oath aforesaid do further present, that in pursuance of and according to the said conspiracy, combination, confederacy, and agreement amongst themselves, so had as aforesaid, the said E. F. afterwards, to wit, on -, [here state the overt acts by each of the conspirators, or by two or more of them jointly, or by one of them "in the presence and hearing and with the knowledge and consent" of the others; commencing the statement of each overt act thus: "And the jurors aforesaid, upon their oath aforesaid do further present, that in further pursuance of," &c., ut supra; and concluding the count thus]: To the great damage of the said C. D., and against the peace of our Lady the Queen, her crown and dignity. [See the precedent, 4 Went. 8. And 6 Went. Index, tit. "Conspiracy." Add a general count, the same as the above, but omitting the overt acts. Also, if necessary, you may add other counts with overt acts, varying the statement of the conspiracy, with corresponding general counts without overt acts.

As to the general counts above recommended:-In strictness it is not necessary to insert overt acts at all, in an indictment for a conspiracy; the conspiring to effect an unlawful purpose, or a lawful purpose by unlawful means, is the offence in law, and the overt acts or means used by the

parties to effect it, are merely matter of evidence to prove the charge, and not the crime itself. See R. v. Eccles, 1 Leach, 274. Where the indictment charged that the de fendants "did conspire and combine together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from P. D and G. D. divers large sums of the said P. D. and G. D., and to cheat and defraud them respectively thereof," without adding overt acts: the court held the indictment to be sufficient; it was possible to conceive that the parties might meet together, and determine by some trick or device to cheat and defraud another, without at that time fixing or settling what the particular means or devices should be; and yet such a meeting would constitute an offence. R. v. Gill and Henry, 2 B. & Ald. 204. Where the conspiracy was laid, to cheat and defraud "Jonas Donkersley and others," it was holden that this meant Donkersley and his partners only, and that the prosecutor could not give evidence of a conspiracy to defraud any persons unconnected with Donkersley. R. v. Steel, Car. & M. 337 Where the conspiracy laid, was to cheat and defraud the just and lawful creditors" of one of the defendants, and there were no overt acts laid, Ld. Tenterden, C. J., seemed to think the charge too general, as the indictment did not state what was intended to be done, or who were to be defrauded; but he said he would not stop the trial upon that point; the defendants however were afterwards acquitted. R. v. Fowle and Elliott, 4 Car. & P. 592. So, where the defendants were charged with having conspired, &c., "by divers false, artful, and subtle stratagems and contrivances, as much as in them lay, to injure, oppress, aggrieve, and impoverish E. W. and T. W., and to cheat and defraud them of their monies,”—the defendants being convicted, the court of King's Bench held the indictment to be too general, and arrested the judgment. R. v. Biers et al., 1 Ad. & El. 327. And an indictment for conspiring to obtain, and obtaining, goods by fraud, must state whose goods they were. R. v. Parker, 11 Law J. 102 m, and MS. But where the indictment charged the defendants with conspiring to propagate false reports that Bonaparte was killed, and that peace would soon be made between England and France, and by such reports to cause a rise in the prices of the government funds and securities, with a wicked intention to injure “all the subjects of the King" who should on that day purchase such funds or securities: it was objected that this was bad for uncertainty, in not stating the individuals by name who were intended to be injured; but the court held that there was nothing in the objection, Ld. Ellenborough saying that the defendants, at the time of the conspiracy, could not, except by a spirit of prophecy, divine

who would be purchasers of such stock on a subsequent day. R. v. De Berenger et al., 3 M. & S. 67.

The conspiracy laid, must be, either to do an unlawful act, or a lawful act by unlawful means. And therefore, where an indictment, after stating that a commission of bankrupt had issued against Jones, one of the defendants, charged that he and others, intending to cheat the creditors of Jones, did conspire to conceal and embezzle certain of his personal property: this was holden to be insufficient; for if he had not committed an act of bankruptcy, or were not a trader, or there were no petitioning creditors debt, (and the indictment stated nothing upon these subjects,) Jones would have a right to remove the goods, and no indictment for a conspiracy could in that case be maintained against the defendants. R. v. Jones et al., 4 B. & Ad. 345. So, where the indictment charged a conspiracy, to cause a female pauper, who was chargeable to a particular parish, to be married to a pauper of another parish, the court held that this was not in itself unlawful; and that to render the conspiracy indictable, the indictment should have charged that the defendants had conspired to effect that purpose by unlawful means, which should be specified. R. v. Seward et al., 1 Ad. & El., 706. But where the conspiracy laid, was, by false reports of the death of Bonaparte, to raise the price of the public funds, and it was objected that as there was nothing unlawful in raising the price of the public funds, conspiring to do it could not be an indictable offence: the court however held that there was no ground for the objection; a public mischief was stated as the object of the conspiracy; the purpose to be effected was mischievous, it struck at the price of a vendible commodity in the market, and if it gave it a fictitious price in the market, by means of false rumours, it was a fraud levelled against all the public; a conspiracy to effect that fraud, was an indictable offence, and would have been complete, even if it had not been pursued to its consequences, or the parties had not been able to carry it into effect. R. v. De Berenger et al., 3 M. & S. 67. Where a woman, living in the service of a master, conspired with another man that he should personate her master, and in his name marry her, in order that after her master's death she might make title to a portion of his property: for this the woman and man were indicted and convicted. R. v. Robinson and Taylor, 1 Leach, 44. 2 East, P. C. 1010. Where two justices of the peace and two others were indicted for conspiring falsely to certify a road to be in repair, for the nonrepair of which parties had before been indicted: the justices, &c., being convicted, it was moved in arrest of judgment that this was no offence; but the court held clearly that it was; that the certificate being an instrument which might be given in mitigation of punishment, when the defendants in the road in