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Chancery.

tor-general in case of the vacancy of the office of attorneygeneral) by information in the nature of an English bill in the Court of Chancery at the relation of a Suit by inparent or guardian of the minor, whose consent has not formation in been given to such marriage, and who shall be responsible for any costs incurred in such suit, such parent or guardian previously making oath as is hereinafter required, to sue for a forfeiture of all estate, right, title and interest in any property which hath accrued or shall accrue to the party

so offending by force of such marriage; and such court Order of court shall have power in such suit to declare such forfeiture, thereon. and thereupon to order and direct that all such estate, right, title and interest in any property that shall then have accrued or shall thereafter accrue to such offending party by force of such marriage shall be secured under the direction of such court for the benefit of the innocent party or of the issue of the marriage, or of any of them, in such manner as the said court shall think fit for the purpose of preventing the offending party from deriving any interest in real or personal estate or pecuniary benefits from such marriage; and if both the parties so contracting marriage shall in the judgment of the court be guilty of any such offence as aforesaid, it shall be lawful for the said court to settle and secure such property, or any part thereof, immediately for the benefit of the issue of the marriage, subject to such provisions for the offending parties, by way of maintenance or otherwise, as the said court, under the particular circumstances of the case, shall think reasonable, regard being had to the benefit of the issue of the marriage during the lives of their parents, and of the issue of the parties respectively by any future marriage, or of the parties themselves, in case either of them shall survive the other: provided also, that no such infor- Before inmation as aforesaid shall be filed unless it shall be made formation filed, out to the satisfaction of the attorney or solicitor-general the case to be before he file the same, by oath or oaths that the valid marriage to be complained of in such infor- general or mation hath been solemnized in such manner and under such circumstances as in the judgment of the said attorney oath. or solicitor-general are sufficient to authorize the filing the information under the provisions of this act, and that such marriage has been solemnized without the consent of the party or parties at whose relation such information is proposed to be filed, or of any other parent or guardian of the minor married to the knowledge or belief of the relator or relators so making oath; and that such relator or relators had not known or discovered that such mar

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solicitorgeneral on

In case of fraudulent

marriages, the guilty party to forfeit all property accruing from the mar riage.

Marriages under false pretences. Physical capacity.

Madness.

riage had been solemnized more than three months previous to his or their application to the attorney or solicitor-general.”

Sect. 24 makes all previous agreements and settlements inconsistent with that which the court may direct under the previous section void.

By sect. 25 the information must be filed within one year.

By 19 & 20 Vict. c. 119, s. 19, "If any valid marriage shall be had, under the provisions of any of the said recited acts or this act, by means of any wilfully false declaration, notice, or certificate made or obtained by either party to such marriage as to any matter in which a solemn declaration, notice, or certificate is required, it shall be lawful for her Majesty's attorney-general or solicitor-general to sue for a forfeiture of all the estate and interest in any property accruing to the offending party by such marriage, and the proceedings thereupon and the consequences thereof shall be the same as are provided in the like case with regard to marriages solemnized by licence between parties under age according to the rites of the church of England in the statute 4 Geo. 4, c. 76.".

The following are important cases which have been decided on the construction of these enactments :

Attorney-General v. Mullay (z).
Attorney-General v. Lucas (a).
Attorney-General v. Clements (b).
Attorney-General v. Read (c).

No deceit practised as to the status, moral, civil or religious, of either party to the contract, invalidates it.

Secondly, the parties to the contract must be of an age competent to the procreation of children, which is one of the principal ends of matrimony.

The impossibility of fulfilling this end is the reason why the incurably impotent person is incapax matrimonii, though after a certain lapse of time, or in the case of a marriage contracted between persons of advanced age, the ecclesiastical and the civil law may justly pronounce habeat tanquam soror vel frater.

Idiotcy and insanity incapacitates the person so afflicted from marrying. Mr. Justice Blackstone, speaking of the maxim once adopted by the common law, that the marriage of an idiot was valid, observes, that it was "a strange de

(z) 4 Russ. 329.

(a) 2 Phillips, 753.

(b) 12 L. R., Eq. 32.
(c) Ibid. 38.

termination, since consent is absolutely necessary to matrimony, and neither idiots nor lunatics are capable of consenting to anything; and therefore the civil law judged much more sensibly when it made such deprivations of reason a previous impediment though not a cause of divorce if they happened after marriage. Modern resolutions have adhered to the reason of the civil law, by determining that the marriage of a lunatic not being in a lucid interval was absolutely void" (d). The leading case upon this subject is, The Earl of Portsmouth, by his Committee, v. The Countess of Portsmouth, where a marriage, solemnized de facto under circumstances of clandestinity, inferring fraud and circumvention, between a person of weak and deranged mind and the daughter of his trustee and solicitor (who had great influence over him and by whom he was clearly considered as of unsound mind), was pronounced null and void, and the pretended wife condemned in costs. Sir John Nicholl said, "The law of the case admits of no controversy, and none has been attempted to be raised upon it. When a fact of marriage has been regularly solemnized, the presumption is in its favour; but then it must be solemnized between parties competent to contract, capable of entering into that most important engagement, the very essence of which is consent, and without soundness of mind there can be no legal consent, none binding in law, insanity vitiates all acts; nor am I prepared to doubt that considerable weakness of mind, circumvented by proportionate fraud, will vitiate the fact of marriage"(e). In Turner v. Meyers, the husband, after his recovery, successfully instituted a suit for nullity of marriage contracted while he was insane. Lord Stowell said (f)," This is a suit brought by a man to set aside his marriage on the ground of his own incapacity at the time alleged, though, at other times, he is pleaded to have been capable. The suit was first brought by the father, but the son being of age, and there being no means of making the father guardian, or curator ad litem, the court was of opinion, that the suit could not proceed in that form.-It has therefore since assumed its present shape.

"It is, I conceive, perfectly clear in law, that a party may come forward to maintain his own past incapacity, and also that a defect of incapacity invalidates the contract of marriage, as well as any other contract. It is

(d) 1 Black. Comm. 438. (e) Portsmouth v. Portsmouth, 1 Hagg. 359; see also Browning P. VOL. I.

v. Redne, 2 Phill. 71; Parker va Parker, 2 Lee, 382.

(f) 1 Consist. Rep. 414.

3 A

Madness.

true, that there are some obscure dicta, in the earlier commentators on the law (g), that a marriage of an insane person could not be invalidated on that account, founded, I presume, on some notion, that prevailed in the dark ages, of the mysterious nature of the contract of marriage, in which its spiritual nature almost entirely obliterated its civil character. In more modern times, it has been considered in its proper light, as a civil contract, as well as a religious vow, and, like all civil contracts, will be invalidated by want of consent of capable persons. This has been fully determined in a case before the Delegates (h), when the effect of all these dicta were brought before the court, and it has been since acted upon in various cases (i) in this court, which it is unnecessary to review. I take it to be as clear a principle of law therefore, at this day, as any can be, and as incapable of being affected by any general dicta, which may be found in writers of earlier periods, as any fundamental maxim, on which the courts are in the habit of proceeding.

"When a commission of lunacy has been taken out, the conclusion against the marriage will be founded on that statute (k); where there has been no such commission, the matter is to be established on evidence. The statute has made provisions against such marriages, even in lucid intervals, till the commission has been superseded. In other cases, the court will require it to be shown by strong evidence, that the marriage was clearly had in a lucid interval, if it is first found that the person was generally

insane.

"Madness is a state of mind not easily reducible to correct definition, since it is the disorder of that faculty with which we are little acquainted; for all the study of mankind has made but a very moderate progress in investigating the texture of the mind, even in a sound state. In disease, where it has pleased the Almighty to envelope the subject matter in the darkness of disease, it will probably always continue so; but the effects of this disordered state are pretty well known. We learn from experience and observation all that we can know, and we see that madness may subsist in various degrees, sometimes slight, as partaking rather of disposition or humour, which will not incapacitate a man from managing his own affairs, or making a valid contract. It must be some

(g) Sanchez, lib. 1, disp. 8, num. 15, et seq.

(h) Morison v. Stewart, falsely called Morison, Delegates. 1745.

(i) Cloudesley v. Evans, Prerog. 1763; Parker v. Parker, 1757. (k) 15 Geo. 2, c. 30.

thing more than this, something which, if there be any test, is held, by the common judgment of mankind, to affect his general fitness to be trusted with the management of himself and his own concerns. The degree of proof must be still stronger, when a person brings a suit on allegation of his own incapacity, by exposing to view the changes of his mind."

They which be dumb, and cannot speak, may contract Deaf and matrimony by signs; which marriage is lawful and avail- dumb persons. able to all intents (7).

By the ancient law of England, if any Christian man Jews. did marry with a woman that was a Jew, or a Christian woman did marry with a Jew, it was felony, and the party so offending should be burnt alive (m).

The author of Fleta says that such offender should be buried alive (n).

But where both parties are Jews, they were allowed to marry; and are expressly exempted from the operation of the Marriage Acts (o).

SECT. 3.- Conditions Precedent-Incapacity to contract

within prohibited Degrees.

Persons within the prohibited degrees are incapable of Incapacity to contracting marriage.

contract.

degrees.

By 25 Hen. 8, c. 22 (which Dr. Gibson says is repealed Levitical and by 28 Hen. 8, c. 7, s. 3, and by 1 Mar. sess. 2, c. Î, and prohibited which is treated as repealed in "The Statutes Revised"), 25 Hen. 8, c. 22. it was enacted as follows: sects. 3, 4, "Since many inconveniences have fallen by reason of marrying within the degrees of marriage prohibited by God's laws, that is to say, the son to marry the mother or the stepmother, the brother the sister, the father the son's daughter or his daughter's daughter, or the son to marry the daughter of his father procreate and born by his stepmother, or the son to marry his aunt being his father's or mother's sister, or to marry his uncle's wife, or the father to marry his son's wife, or the brother to marry his brother's wife, or any man to marry his wife's daughter, or his wife's son's daughter, or his wife's daughter's daughter, or his wife's sister; which marriages, albeit they be prohibited by the laws of God, yet nevertheless at some time they have pro

(1) Swinb. Matr. Con. s. 15; Decret. Greg. 1. iv. t. i. c. 23; vide supra, p. 712.

(m) 8 Inst. 89.

(n) Fleta, 54.

(0) 4 Geo. 4, c. 76, s. 31; 6 & 7 Will. 4, c. 85, s. 2.

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