riage. The intestate could not take advantage of his own wrong. 1834. ALLEN v. It was for Wilde and Andrews Serjts. shewed cause. the Plaintiffs to establish their title to the rents by shewing that Mrs. Fuller had married again. That they failed to establish; and as the rents were received, not on the representation of a marriage between the parties, but by the suppression of any such fact, the intestate could not be said to take advantage of his own wrong. It was no more competent to the Plaintiffs to rely on what they called a marriage in substance and effect, than it was for a defendant, in an action for a libel, to rely on shewing that, in substance and effect, the libel was true. In Weaver v. Lloyd (a), where a libel charged the plaintiff with various acts of cruelty to a horse, and amongst others with knocking out an eye, and the defendant pleaded that the charge was true in substance and effect, the jury having found that it was true in all particulars, except that the eye was not knocked out, it was held that the justification was not proved, and that the plaintiff was entitled to a verdict on that plea. Spankie. The Plaintiffs shewed a sufficient marriage within the meaning of the condition in Fuller's will, by shewing that the intestate held out Mrs. Fuller as his wife; and he having lived as in a state of marriage, his representative cannot now set up and take advantage of his turpitude and concubinage. A party who has conveyed property to give a colourable qualification, is not permitted to say he has not conveyed: Doe v. Roberts.(b) So, in Crocker v. Fothergill (c) there was a demise by lease of certain lands, together with the mines under them, with liberty to dig for ore in other mines under (c) Ibid, 652. (a) 2 B. & C. 678. WOOD. 1834. ALLEN บ. WOOD. the surface of other lands not demised; the tenant Montefiori v. Montefiori. (a) than as a cause of action: At all events, the condition in Fuller's will applies as much to an intercourse like this as to a state of marriage; if he objected to marriage, he must have objected still more to concubinage as a status for his widow. In effect she was to enjoy the property only dum sola et casta maneret. TINDAL C. J. We may determine this question without infringing the general rule that a party shall not set up his own fraud or wrongful act as a ground of claim or defence. The Plaintiffs here seek to recover certain rents and profits under a clause in the will of Fuller, by which he provides that property bequeathed to his widow shall go over to his daughter in case his widow shall take another husband. It is a part of the Plaintiffs' case, therefore, not of the Defendant's, to shew that Mrs. Fuller's right to the rents had determined. (a) 1 W. Bl. 363. But the Plaintiffs' witnesses, after shewing that Grimmett and Mrs. Fuller had, indeed, lived together as man and wife, disclosed also, that that which was a marriage in form was no marriage in fact. It has been contended that, primâ facie, it was sufficient for the Plaintiffs to shew that Grimmett and Mrs. Fuller were living together as man and wife: but, conceding that, it would have been open to the Defendant to explain the real circumstances of the case; and if so, we could only have held, as was held in Rex v. Tibshelf, that this was no marriage. To invalidate a marriage under a false name, it is not necessary there should have been actual fraud. In all the cases cited in the note to Rex v. Billingshurst (a), the Judge took a wider view, and thought that where a false name has been inserted in the banns, though no fraud were intended, the marriage is without banns, and consequently illegal. As in Wakefield v. Wakefield (b), where Sir William Scott stated and approved of that opinion; and in another case, of Frankland v. Nicholson (c), he said, "I do not hold it to be necessary that there should be actual fraud on the individual party; it is enough if the thing leads to a probability of fraud; and this mode of conducting the matter would lead to such consequences and mischief as it is the intention of the legislature to prevent. It seems to me that courts of justice are only following up that intention in preventing such modes as are so obnoxious, and lead to fraud: certainly if this mode was permitted, a man might be married to the wife of another person without the slightest knowledge of the fact; and many instances might be put, in which a liberty of this kind would be extremely grievous." And in several other cases the same doctrine was held by that learned civilian. If, therefore, that which is ipso jure is ipso facto a void (a) 3 M. & S. 250. note (c) 3 M. & S. 259. 1834. ALLEN .v. WOOD. 1834. ALLEN v. WOOD. marriage, how can it be a marriage which devests the right of the first devisee to the rents in question? The rule for setting aside the nonsuit must be discharged. PARK J. This is an action to recover certain rents and profits bequeathed by Fuller to his widow, with a condition that in case she married again they should go over to her daughter. During her life the Plaintiffs supposed she continued a widow; and unless they shew that she married a second time, they are not entitled to the rents. In order, however, to retain the property, Mrs. Fuller did that which does not amount to a marriage; and the Plaintiffs, instead of shewing a marriage, have shewn that which is directly in the teeth of the statute and of all the decisions. The statute requires that the banns shall be published in the true names of the parties; here they were published under a fictitious name, which in effect is no publication at all; insomuch that a minister who should be privy to it would be liable to transportation. The statute goes on to enact that a marriage solemnised without publication of banns or licence shall be null and void to all intents and purposes whatever. Here the publication being in fictitious names, there was no marriage at all, and the circumstance came out in the Plaintiffs' case. The Plaintiffs, therefore, have failed to establish any title to the rents in question, and the rule must be discharged. But this decision does not in any degree trench on the cases which decide that a man renders himself liable for the debts of a woman with whom he lives in concubinage. GASELEE J. The claim fails on the Plaintiffs' own shewing. BOSANQUET J. I am of the same opinion. In order to establish this claim, it was incumbent on the Plaintiffs to shew that Mrs. Fuller had married: but, as there was no marriage, the Plaintiffs' title falls to the ground. And as to the effect of any representations on the subject, Mrs. Fuller represented herself, not as married, but as still a widow. It has been urged, that the testator's meaning was to include an intercourse, such as this, under the word marriage. But we must apply that word in the will to a marriage according to the law of England, and not to a contract which the parties may dissolve at pleasure. That would be making the condition in the will a condition dum sola et casta maneret: a condition very different from the real one. Rule discharged. 1834. ALLEN บ. WOOD. WILLIAMS v. HARRIS. THIS was a writ of intrusion, on which the demandant had entered a nolle prosequi; whereupon, May 23. The tenant in a real action is not entitled to Merewether Serjt. obtained a rule nisi to tax the costs upon a nolle prosequi. tenant's costs, against which Stephen Serjt., who shewed cause, contended that no costs are given in real actions; Pilfold's case (a), Newman v. Goodman (b), Booth on Real Actions, 74.; and that the statute of 8 Eliz. c. 2., which gives costs on a discontinuance or nonsuit, is confined to personal actions. Merewether. In Cooper v. Tiffin (c), the statute 8 Eliz. c. 2. was held to be a remedial act, and by equitable |