1849.

January

Term.

Kelly

V.

Scott.

solve the marriage contract, or declare it void, but simply, in such cases, to decree a separation from bed and board, and to punish by fine. And more especially, when it appears that the marriage was legal and valid at the place where it was contracted.

3. But even if the Court could, in the case of persons married out of the State, where the marriage was legal, annul the marriage, the utmost that it could do, and all that it has done in this case, is to declare the marriage dissolved; a decree of divorce, a vinculo, to operate in futuro, not retrospectively; to prevent marital rights accruing afterwards, not to divest those which had been previously acquired and become consummate.

4. The judgment in this case is wholly irregular and void, even as to the parties themselves. The Court, in relation to this subject, is one of special and limited jurisdiction; and in order that its judgment may be of any validity, it should appear on the face of the indictment, that such a case existed as authorized it to act. Now, it is an essential element of the Court's jurisdiction to enquire into the validity of a marriage in Washington, and to prosecute the same as an offence, that they should have been both residents of the State, and should have gone out of the limits of the State, for the purpose of eluding the provisions of the act. The indictment contains no such charge; and plainly, there was no offence against the laws charged. The defendants, by attorney, confessed themselves guilty of the facts charged in the indictment; and these facts constituted no offence, and gave the Court no authority to declare the nullity of the marriage, decree separation, or to inflict punishment; and the Court was bound to have arrested judgment ex officio, without anv motion to that effect, even if the plea had been put in by the parties themselves. Commonwealth v. Hearsey, 1 Mass. R. 137; Hawk. B. 2, ch. 31.

5. Either because the parties were sensible of the defect in the indictment, or because it was a part of the scheme of collusion, the Court did not pronounce a definitive sentence of separation or inflict any punishment, but stopped at the mere declaration of its opinion that the marriage was null. It failed to exercise the main and direct object of its jurisdiction, and did what was only incidental and collateral, and what was properly no part of its criminal jurisdiction. (Vid. Poynter on Mar. and Div., 13 Law Lib. 121.) Indeed we are authorized to assume, that it was known that the Commonwealth could not have proved that the parties left the State for the purpose of eluding the provisions of the law.

6. That the judgment in this case is a mere nullity by reason of the parties not having appeared in person, or been compelled to appear by process, or for aught that appears, having had any notice of the proceeding. If the proceeding is to be judged by the rules of practice in the Ecclesiastical Courts, the sentence is a nullity. (Vid. Dr. Goldingham's argument not contradicted) in Morris & Webber's Case, 2 Leon. R. 172, and Fisher v. Lane, 3 Wils. R. 297.) For the same principle, in a somewhat analogous case, vid. Bourke v. Granberry, Gilm. 16. And although the appearance of a party will excuse the want of a citation, an appearance by proctor will not do, unless his authority to appear is made out in the most solemn manner. Hall's Admiralty Practice, 14, 18, where the practice of the Ecclesiastical Courts is stated. Poynter on Mar. and Div., Law Lib. 57, (161, 162, 163.) If the rules and practice of the common law are to govern this question, then also the sentence would be a nullity. Clearly this would be so in felony. Sperry v. Commonwealth, 9 Leigh 623. And also, in cases of high misdemeanor, 3 Rob. Prac. 115. Such would be the case if an attorney (nameless too,) appeared and plead not guilty; how much more if a nameless person

1849. January Term.

Kelly

v.

Scott.

appear in the absence of the party to confess the indietment and plead guilty?

Even in civil cases a retraxit cannot be by attorney, but must be by the party in person. Beecher's Case, 8 Rep. 58 a, 6. And though this would be ground of reversal on writ of error, it is an irregularity which authorized the parties also to regard it as a nullity, according to the distinction between irregular judgments, which are not only erroneous but void, and those which are only erroneous, and therefore voidable only, by writ of error. Vid. for this distinction, Britton v. Cole, 1 Ld. Ray. R. 305; Philips v. Biron, 1 Str. 509; Perkin v. Proctor, 2 Wils. R. 385; Barker v. Braham, 3 Wils. R. 368.

The objection to any judgment declaring the nullity of or dissolving a marriage, on the confession of an attorney, is strengthened by the known policy of the law, which prohibits the Courts decreeing divorces upon the confession of the parties, of any fact essential to the deSupp. R. C. 222.

cree.

7. That if the parties were cognizant of the prosecution against them, it is clear that the whole proceeding was not only irregular, but collusive and fraudulent. They had been permitted to live openly, cohabiting as man and wife for nearly three years in the county. The Court, although it declared the marriage null and void, made no sentence of separation; exacted no security against cohabitation; and impanneled no jury to impose a fine; and the parties were permitted ever after, until the death of the wife, for nine years, to live together as man and wife; to have children, known and called by the name of the parents; the wife known, called and treated as his wife in his house; and this cohabitation and recognition of the relation existing at the passage of the act of 1827, and continuing for five years afterwards. It is impossible to wink so hard as not to see that the prosecution was got up by the procurement

and consent of the defendants for no other purpose, as in truth it had no other effect, (if this fraudulent scheme can be sustained,) but to protect her property from his marital rights. However regular and effectual the judgment might otherwise be, if all the other objections stated to it were insufficient, this must invalidate it. Rex v. Duchess of Kingston, 20 St. Tri. 355; Harg. L. Tracts 449, 486; D. Philli. note to Walton v. Rider, 5 Eccl. R. 289.

III. Even if a marriage, such as this contracted in Washington, could be nullified by the judgment of a Court in this State, and if the judgment were regular, and in a case in which the Court had jurisdiction, yet as there was no sentence of separation, as the parties lived together until the death of one of them, and after the act of 1827, the marriage at the most was only roidable and not void, and continued cohabitation as man and wife, without judgment of separation, until the act of 1827, and the death of the party, renders it impossible now to impeach the marriage; and consequently, they must be taken to be, and to have been at the death of the wife, for all civil purposes, lawfully man and wife. The law Rev. Code, supra, makes cohabitation as man and wife conclusive proof of marriage. They did so cohabit after the judgment aforesaid, and until 1827. It is decided by the General Court, (Com. v. Leftwich, 5 Rand. 657,) that after the passage of the act of 1827, there could be no decree or judgment of separation, and that all marriages within the inhibited degrees prior to that act, were legalized, or at least they could be neither vacated nor punished. Now, that a marriage impeachable only by reason of affinity is merely voidable and not void, is clearly settled. Poynter on Mar. and Div. 84, 154; Comb. 200; 1 Black. Com. 434, 5, 440; Harris v. Hicks, 2 Salk. R. 548; Co. Litt. 33-6; I Lom. Dig. 64; 2 Philli. 16; 1 Lom. Dig. 75, 76.

1849. January Term.

Kelly

V.

Scott.

1849. January Term.

Kelly

V.

Scott.

Notwithstanding the judgment on the indictment, declaring the former marriage null, as they still cohabited as man and wife, they still were liable to be prosecuted again, as for a marriage within the State, and their cohabitation would have been proof of the marriage, and a sentence of separation might have been had. Surely the same proof which would have been sufficient to justify a decree of separation and divorce, is sufficient to prove a marriage against them, and their children claiming under them; and now that one of the parties is dead, without a sentence of separation, and when no such sentence can now be pronounced, must be sufficient to preclude them, and those claiming under them, from denying the marriage, or its validity.

Morson, for the appellees.

This is an effort to obtain payment of a debt out of property to which Alexander B. Scott only had claim by a marriage declared null and void eleven years before the execution was levied; property which, during all that time till her death, had been in the possession of Mrs. Scott, which, two years before the suit of the appellant against Scott had been brought, Mrs. Scott had bequeathed by her will, and which had been since held by the testamentary guardian of her children.

As to the first question made by the counsel for the appellant, how can it be said that the property in these slaves is in the personal representative of Mrs. Scott, when they have been in the possession of her legatees for near five years since her death? The personal representative of Mrs. Scott sets up no claim to the slaves; and it must be taken at this day that he has assented to the legacy, and therefore that the legatees had the legal title to them at the time the execution was levied. But if they did not have the legal title, none but Mrs. Scott's adın'r or her creditors can object, and there being no claim by them, the title of the legatees is impregnable."