O’Bryen v. Giddy November 1862.

The Times, November 6, 1862

Bail Court

(Sittings at Nisi Prius [to determine the facts] before Mr Justice Crompton and a Common Jury.)

O’BRYEN V. GIDDY.

Mr. Serjeant Pigott and Mr. Mathew were counsel for the pIaintiff; and Mr. Serjeant Shee and Mr. Murphy for the defendant.

This was an interpleader issue to determine whether certain goods which had been seized by the sheriff were the goods of the plaintiff The question was whether the plaintiff was the wife of Eugene Plummer Macarty. The plaintiff was an Irish lady, and she contracted a marriage with Macarty in 1844, at Cork. They lived together for eight years, but in 1852 Macarty eloped. with Emily Verling. That caused inquiries to be made, and then it turned out that in 1839 Macarty had married Kate Creagh, near Dublin; that marriage had taken place in a private house, in the presence of a Lutheran clergyman named Schultz. Mr. Serjeant Shee interposed, stating that the question would be whether that marriage was a valid marriage. He submitted that it was not a valid marriage, as it was only performed in the presence of a Dissenting minister, whereas to make it valid it must have been in the presence of a clergyman of the Church of England or a Roman Catholic priest.

Mr. Justice Crompton said that from a decision of the House of Lords the law would be that it must be before a priest in orders It might be better to turn it into a case ; the parties might go to the Queen’s Bench, then to the Exchequer Chamber, and then to the House of Lords.

Mr. Serjeant Pigott said the 5th and 6th of Victoria, cap. 113, made the marriage good, as that provided that a marriage solemnized by a Dissenting minister would be valid.

Mr. Justice Crompton thought that would make the first marriage valid

Mr. Serjeant Shee said the marriage must be proved.

Evidence was then given, showing that Macarty married Miss O’Brien in 1844. They lived together until he eloped with Emily Verling in 1852. He then said he had been previously married to Kate Creagh. They lived together for some time, and then Miss O’Brien was persuaded that the marriage with Kate Creagh in 1839 was invalid and she took Macarty back again. He again eloped with Emily Verling, and married her, and they lived together until she ran away with some one else. The marriage of Kate Creagh was then sworn to as having taken place before Mr. Schultz in 1839. .Macarty was an attorney in Dublin. Kate Creagh in her interrogatory stated that she was the daughter of a gentleman’s servant. She was married to Macarty in 1839. Macarty left her in six months, and she was in the poor- house. She had left off her previous calling of receiving gentlemen for the last seven years, and was now living a respectable life with her brother.

The plaintiff was examined, and stated that she was married to Macarty in 1844. She now lived in Westbourne- place, Eaton-square. She was entitled to 1,500I.(£1,500) under her mother’s marriage settlement. She had, a settlement in 1852, after which Macarty left her with Emily Verling, who was a visitor in her house. He afterwards returned and lived with witness in Warwick-place, Pimlico; and afterwards in Upper Belgrave-place, of which the defendant was the landlord. She left that house in June, 1860. On the 25th of July, 1861, she had a sum of money put into her hands under a decree of the Court, and she furnished the house in Westbourne-place. That furniture was seized by the sheriff. Macarty had not lived with her in that house.

Cross-examined.-Macarty on the first occasion stayed away three weeks. She brought him back. He went away again in May, and returned in July, 1852, and went away again in 1855, but returned and remained till 1858. None of the furniture seized was in her possession in 1858. When she took the house of the defendant she represented herself to be the wife of Macarty, because she believed herself to be so until the Lord Chancellor’s decree in 1861. Macarty had dined with her twice in Westbourne-terrace. He was uninvited. He was in a wretched state of poverty, and any one would have given him a dinner out of pity. He had been prosecuted for bigamy.

A copy of a certificate of the Archbishop of Ireland was put in, authorizing Schultz to preach and administer the sacrament according to the rites of the Church of Ireland.

The learned Judge had great doubt about this document.

Mr. Isaac Butt, Q.C., had seen this document. According to the law of Ireland such a document could only be given to a priest in holy orders. In Ireland every curate received such a licence. In substance, this was the ordinary licence to a curate.

Cross-examined.-He meant holy orders by episcopal ordination, which the Established Church would recognize. A bishop would grossly violate his duty if he granted such a document to a man not in holy orders; that is, because no one could administer the sacrament in the Church of England who was not in holy orders.

Re-examined.-There was no objection to a marriage in a room before the Act of 1844. Did not consider this a German licence, but one to a curate of the Church of England.

Frederick Wisely, a policeman, and a native of Ireland recollected Schultz. Saw him perform a marriage ceremony at a private residence.

Cross-examined.-Was a witness on the occasion. It was about three years before 1847.

Serjeant Shee.-It is rather strange that he was buried in 1839.

Mr. Serjeant Pigott said that was his brother.

Cross-examined. -Did not know Schultz at the time of the marriage, but heard afterwards that a Mr. Schultz was living there. He was a dark-complexioned, old man. Took Macarty into custody in July last for bigamy, and then he heard of this marriage in 1839 by Schultz.

The learned Judge said there were great doubts about the case, but he thought it would be better to let the plaintiff have the goods without costs on either side.

Mr. Serjeant Shee said it was a hard case, but he should defer to his Lordship’s suggestion.

The Judge said, if they had proved that Schultz had officiated in any way there would have been no doubt. No action must be brought against any one.

Verdict for plaintiff without costs.

The Judge said this was the best arrangement, as parties now might have the pleasure of going from Nisi Prius to the full Court, then to the Court of Error, and then to the House of Lords, but at an enormous expense.

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