Page:The English Reports v1 1900.pdf/1469

Upon this judgment, the said John Kent and James May brought a writ of error in parliament, which, on the 30th of March 1738, was declared to be null and void, and the same was ordered to be quashed; because the record could not be removed into parliament without passing through the Court of King's Bench in England. (Jour. vol. 25. p. 204.)

A writ of error was accordingly brought, returnable in that Court; and in Michaelmas term 1738, the judgment of the Court of King's Bench in Ireland was there affirmed.

The proceedings being now regular, a new writ of error was brought in parliament; and on behalf of the plaintiffs it was said (D. Ryder, J. Strange), that by an act of parliament made in Ireland, 6 Ann. intitled, an act for the more effectual preventing the taking away and marrying children against the will of their parents or guardians; it was, inter alia, enacted,

That if any person or persons shall, at any time after the 1st day of November 1707, by any subtil means, or secret insinuations and delusions, threats or menaces, persuade or procure the son and heir apparent, or other son, of any person or persons having lands, tenements, or hereditaments, of the yearly value of £50, or personal estate of the value of £500, or shall, in manner aforesaid, persuade or procure the eldest son, or any other son, of any person deceased, to contract matrimony, without the privity or consent of the parents or guardians of such eldest or other son, and such matrimony be had as aforesaid, before such son attain the age of 21 years; every such person or persons, contracting matrimony without the privity and consent of such parent or guardian, and in case there be no parent or guardian appointed, of the Lord Chancellor, Lord Keeper, or Commissioners of the Great Seal, for the time being, shall be, and is hereby rendered incapable, and for ever disabled to sue for, recover, or demand any dower, thirds, or any other part of the real or personal estate of such son or sons, or claim or demand any jointure or other provision out of the real or personal estate of such son or sons, made to or in trust for her, by any will, deed, or settlement whatsoever.

And it was insisted, that notwithstanding the manner in which the special verdict was found, the defendant Katherine would be [491] barred of her dower by virtue of this statute, for it was a remedial law, and ought to receive such a construction as would extend the remedy and prevent the mischief; and though for form's sake in pleading, it was necessary to pursue the words of the statute, and alledge that the private marriage was procured by subtil means, etc. yet it seemed evident, that the legislature intended they should be presumed from the private marriage without the father's consent, and not otherwise to be proved; because the accessaries, who only could be supposed to have knowledge of the evil practises used to ensare, were, by the act, subject to three years' imprisonment and could not therefore be examined. That the private marriage of the heir within the age of 21, without the father's consent, and entitled to such a fortune as the law requires, being expressly found by the jury, the subtil means, etc. by which it was procured, were included and virtually found in the affirmative; and consequently, the negative part of the verdict must be rejected, as repugnant to the affirmative. That if the negative part of this verdict should prevail, it would be opening a door to elude the statute, by an accomplice only swearing, that the clandestine marriage was of the young man's own seeking and desire; on the other hand, if the negative part should be rejected, the law would be truly remedial; it would answer the end declared in its title, and parents might then hope to preserve their children from the great mischiefs which usually attend such imprudent marriages, when the temptation of dower is removed. That the word such in the act, was not relative to the means by which others brought it about, but to the persons who married infants; and if the subtilty was requisite to constitute the offence in them, it would not have run every person contracting matrimony, but so contracting, or contracting in manner aforesaid.

To this it was shortly answered (N. Fazakerly, W. Murray), that the verdict had expressly found, that the defendant Katherine did not persuade or procure the said John Kent the younger, to contract matrimony with her by subtil means or secret insinuations, delusions, threats, or menaces; and therefore it must be taken, that he married her voluntarily and freely, in which case she could not he said to have been guilty of any offence; and consequently, there was no foundation to deprive her of the provision which the law has made for her. And this act being in the nature of a penal statute, ought to be construed strictly; especially in the case of dower, which the law has always very much favoured.