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.

Eugene Macarthy, second indictment for bigamy – 24 July 1862

Dublin Evening Mail – Thursday 24 July 1862

ALLEGED BIGAMY AND PERJURY.

Mr. Eugene Plumber McCarthy, described as a solicitor and notary public in Ireland, has undergone a lengthened examination, on two charges of bigamy and one of perjury, at Westminster Police-office, London.

Mr. Lewis, sen., was engaged for the prosecution.

Dr. John O’Bryan, of 17, Thistle-grove, Brompton, produced a certificate from the registry of the Rev. J. G. F. Shultz, in the Consistorial Court, Dublin. The prisoner was there described as Eugene M’Carthy, and the marriage which took place on the 28th of January, 1839, was between Catherine Creagh and Eugene M’Carthy. Witness also produced certificate the marriage of Mary Anne O’Bryan, in the parish church of St. Peter’s, in the county of Cork, to Eugene M’Carthy, on the 29th of June, 1844,

The first marriage was also proved by a witness who was present the ceremony. It was here explained that the clergyman question was what is called ” a couple beggar.”

Mr. Lewis pointed out that his marriages were valid, or they would not be registered in the Consistory Court

Mr. Ingleby Thomas Miller, solicitor, George-yard, Lombard-street, produced two letters from the prisoner, which were proved to be in his handwriting, dated the 5th and 9th of September, 1860, in which, in allusion to his first marriage, the prisoner urged that he was very young at the time; that Catherine Creagh had lived with him previously; that neither of them ever considered it as a valid marriage; that she left him shortly afterwards, considering that there were no marital obligations; that after he was married in 1844, at St Peter’s, to Miss O’Bryan, repeatedly saw Catherine Creagh in the streets, and, attaching no value to her marriage, she never sought him, or required anything of him, although his marriage with Miss O’Bryan had been published in the newspapers, and must have been well known to her. The question having been tried one of the courts of law, it had been determined by the authorities that marriages like the one spoken of were valid. The writer said he had seen Catherine Creagh in Cork as late as 1855.

Prisoner said that these letters were dated from Woolwich, and he never was there.

Mr. Lewis intimated that Catherine Creagh was alive now, and had given evidence a few days ago in the Court of Chancery respecting some property transactions.

Prisoner said that a woman had been brought from Ireland certainly.

Mr. Miller, on being cross-examined by the prisoner, said that about the time the letters were received there was some treaty about the raising of some money; the object was that the settlement should be set aside. He was about to lend Miss O’Bryan some money, and he wanted to be satisfied on some points relating to the prisoner.

A passage in one of the letters purporting be written by the prisoner was pointed out as showing that he well knew his first wife to be alive at the time of his marriage with Miss O’Bryan. It stated that Catherine Creagh resided at Cork in 1844; that she continued to live there, and that he repeatedly saw her.

Miss Mary Ann O’Bryan, who described herself as single woman, said that she was married on the 29th June, 1844, to the prisoner.

This was the evidence in support of the first bigamy, and the second was not proceeded with.

Mr. Lewis proposed that the evidence of the first marriage should copied upon the depositions in this case, and called

The Rev. W. Bell Mackenzie, incumbent of St James’, Hollowav, who stated that on the 22nd of May, 1852, performed the marriage ceremony with Eugene M’Carthy and Emily Verling. They signed the register, which produced.

Dr. John O’Bryan proved that the name of M’Carthy was in prisoner’s handwriting. Miss O’Bryan said that Emily Verling, unfortunately, resided in the same house with herself and husband; prisoner and Miss Verling left the house together.

It was stated that Miss Verling, finding she had been deceived, left the prisoner and went abroad. Mr. Arnold asked what evidence there was to show that in 1852 prisoner knew his first wife was alive?

Mr. Lewis said that the letter proved that he knew she was alive after 1854.

Mr. Arnold pointed out that he might have become acquainted with that fact in 1854, but might have been ignorant of it 1852.

A certificate was now produced in the third case against the prisoner, in which he had sworn, on his application for a licence to be married to Miss Verling, on the 19th May, 1862, that he was a bachelor.

Mr. Arnold observed that the question in this case would again arise, whether in 1852 the prisoner knew that his first wife was alive.

Miss O’Bryan was again called to supply the proof required, and her brother was also put into the witness-box to give secondary evidence of the contents of a letter written by the prisoner, which had been destroyed. It was addressed to Dr. O’Bryan, and was written after his connexion with Miss Verling, and stated that he had left his (Dr. O’Bryan’s)  sister because she was not his wife; that in 1839 he was married to Catherine Creagh, who died in 1851, and was buried at a cemetery described. At first he stated that he was married to Miss Verling, as he was at that time an unmarried man.

Mr. Arnold said that this evidence was not against the prisoner, but in his favour.

Mr. Lewis applied to have the depositions copied up for prisoner’s committal on all the charges, and asked for remand for witnesses from Ireland.

Mr. Arnold remanded the prisoner for a week, but said that at present he could only commit upon the first charge, as the others were not proved.

Eugene Macarthy, third indictment for bigamy – 30 July 1862

The Times, Wednesday, July 30, 1862

Westminster Police Court-

Mr. Eugene Plumber M’Carthy, solicitor and notary public in Ireland, was charged on remand with double bigamy and perjury in making an affidavit to obtain a licence for his third alleged marriage. The evidence previously taken in support of the charges went to show that the prisoner was married on the 28th of January, 1839, to Catherine Creagh, at Cullenswood, near Dublin, by the Rev. J. G. F. Schultz; that he was again married on the 29th of June, 1844, to Miss Mary Anne O’Bryan, at St. Peter’s, in the county of Cork ; and again to Emily Reiley [sic. Actually Emily Verling]  at St. James’s, Holloway, on the 22d of May, 1852. The affidavit for the last marriage set forth that the prisoner was a bachelor.

Yesterday, upon the prisoner being again brought up, Mr. Wontner attended on his behalf, and the case was reopened, the validity of the first marriage being questioned. The proof of this marriage rested upon the testimony of Mr. Harrington, who was present when that ceremony was performed. Letters were written by the accused many years afterwards to Mr. Mellor, a solicitor, which were produced and repeatedly referred to. In one, dated the 5th of September, 1860, at 16, Eaton-street, Woolwich, he says:-” I could have wished that the recital of the marriage of 1839 should exonerate me from committing a deliberate fraud in tho marriage of 1844. It was some years subsequent to the latter date that the validity of a marriage, without bans or a licence, by a Dissenting minister, was recognized. All the circumstances attending the marriage of 1839 strengthen the conviction that it was worthless, until, to my consternation, the Courts decided otherwise. I was then a very young man. The woman lived with me previously, and a certificate was had only to save appearances. In 1839 we separated, the woman no more than myself viewed it as valid. She resided in the city of Cork. I also resided near it. She never sought me, and knew where I was residing. I was married by licence in 1844 at St. Peter’s, Cork. Frequently saw the woman in the street. Was never molested or accosted by her. Never made the least claim upon me,for she, as well as myself, attached no value to the marriage and I remained so contented until, as I have already said, the question was raised on circumstances similar, and the Courts decided their validity; hence I am fairly entitled to be absolved from any fraud in making the contract of 1844.”

A postscript adds,-” I need scarcely add, you shall find me ready to do any and every act you may deem necessary to secure Mrs. M’s rights; as recompense for an involuntary wrong it is justly due.”

The second letter is in the following terms, dated Woolwich, September 9, 1860:-

“The place of celebration of the ceremony of 1839 was in Cullenswood,a suburb of Dublin; the celebrant. the Rev.Mr. Schultz, a German Lutheran minister, at his residence. The register he keeps is in the Prerogative or Consistorial Court, Dublin, lodged or impounded there since his marriages were first questioned. I can afford no information of Creagh’s death. I did hear it occurred in 1855, but where I know not. It may have been Cork, the last place I heard of her. But persons of her class assume new names, and have aliases for every week of the year,- and it may be no easy matter to satisfactorily trace her. She was in London a considerable time after 1839, and in Dublin also as long. There can be no doubt that she was in Cork early in 1855, and no difficulty in proving it. The decision settling the validity of Schultz’s marriages is well known in Ireland, and I have no doubt many a heedless young man found himself snared by it as I did.” – The letter concludes with some remarks about the settlement deed before alluded to.

Miss Mary Anne O’Bryan, 30, Westbourne-place, Eaton. square, was cross-examined by Mr. Wontner. She said she was first acquainted by her brother, Dr. O’Bryan, with the prisoner’s first marriage in 1852. She did not then believe it. The witness was married in 1844 and continued to live with the prisoner until 1852, when he went away with Miss Railey.  [sic. Actually Emily Verling].  The witness fetched him back, but he went away again with her. She and her family sold off his goods. She could not say whether her brother took the prisoner’s position of notary at Queenstown. This was the first time she ever heard her brother was notary. She had heard Robert O’Bryan was practising there as notary, but this was mere hearsay. When married to the prisoner her property was not settled upon her; but, after being married seven or eight years, he settled it upon her in April 1852. In 1860 she was desirous of recovering the sole control of the property, and instituted a suit in the Irish Chancery Court. He wrote the two letters produced to facilitate her getting the money out of court. The witness and the prisoner were living together in 1860, when these letters were written. The witness did not read them before they were sent but posted them herself as the prisoner was lame. The witness continued to live with him after this, but left him when she found she could. It was June 12 months when she last lived with him; she had since corresponded with him in answer to his letters for money, and had seen him, but not frequently. He had lived in Belgrave and Warwick Places, and there being some arrears of rent an execution was put in, when she declared herself to be a single woman. She could not say her brothers gave him into custody on his coming to the house at that time for this bigamy.

Mr. Harrington, the only witness to the first alleged marriage, said he was present at Schultz’s when the prisoner and Catherine Creagh were there. He was present at the prisoner’s invitation. Schultz was a very notorious person; he performed marriages when persons had not time to contract them through the Church. There was a ceremony of some sort gone through, but he could not say what. Schultz read and spoke in some form, and witness believed the parties were married at that time. He saw no books used by either of the parties, and never saw such a marriage before. The prisoner said he was anxious to make Catherine Creagh reparation and marry her. He could not say whether Schultz  was in canonicals. He thought he saw the parties kneel, but could not say

An Irish policeman was called to prove that Schultz’s marriage had been acted upon as valid in the courts of law in that country.

Mr. Arnold thought that, with the letter and the evidence of Mr. Harrington of a ceremony, there was a prima facie case made out.  He committed the accused for trial upon the first charge of intermarrying with Miss O’Bryan while his former wife, Catherine (Creagh), was alive, but he offered to take one surety in £ 20,  as he thought it was not a case in which the prisoner should be locked up.