The marriage settlement made by Alexander B. Scott and Mary Jane Dixon before the marriage, must be thrown out of the case. The feme was an infant at the time. It was never recorded as to her; and there is no proof of its execution by her.

It is said that the marriage was originally valid, and vested in the husband all the marital rights. It is true the marriage was authorized by the law of Maryland, which is the law of that part of the District of Columbia in which the marriage took place. But though it was valid there it was a nullity in Virginia, by our statute, which enacts that the marriage shall be declared null by the Courts; and directs that the act shall be expressly given in charge to the grand juries. 1 Rev. Code, ch. 106, § 18, p. 399.

There might have been some ground for the first ob jection under this head taken by the appellant's counsel, if the marriage had taken place before the statute was enacted. But this was not the fact. It is, therefore, a mistake in the use of terms to say that the statute divests the rights of the husband. The rights never vested

in Virginia.

Where there is a conflict between the laws of Virginia and Maryland, each will be governed by its own law in its own Courts. In all cases, it is a question of discretion whether a foreign law will be regarded, and it never is regarded when it is against the policy of the country whose Court is asked to enforce it Story on Conflict of Laws, § 18, 21, 22, 23, 25, 29, 38. These references are in regard to the general rules applicable to all cases; but the doctrine equally applies to marriages. Id. § 84. It is true Judge Story appears to think that the doctrine of the civilians has not been sustained by the English decisions on Scotch marriages. But these marriages have been sustained, not because they are valid in Scotland, but because they are not avoided by the English statute. Story on Conflict of Laws, § 124 VOL. V.-62

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Kelly

V.

Scott.

and note 4. The authorities there cited shew that Scotch marriages are not prohibited by the English statute, and that if they had been prohibited they would have been held to be void. There are other sections of this work which throw light on this question. § 113 a, 166 a in the note, 123, 180. This last section refers to a case in Louisiana, which holds that a marriage out of the State which is null within it, does not vest the property; but it will pass on the death of the wife as if there had been no marriage. The same law is referred to in 8 198. Upon these authorities I may well insist that both as to the factum of marriage and the rights of property, the law of Virginia, and not that of Maryland, gives the rule.

It is said that the statute does not profess to divest the husband's rights of property. That is true. The statute does not divest, but it prevents the vesting. The act annuls the marriage; makes the parties to it criminal; directs them to be prosecuted, and directs the Courts to declare the marriage a nullity. The office of the Court is only to declare the nullity of the marriage; the act has already annulled it.

The marriage being a nullity, no right of property can be derived from it. This is so on general principles. Wilson v. Spencer, 1 Rand. 101; Seidenbender v. Charles' adm'r, 4 Serg. & Rawle 151; Wheeler v. Russel, 17 Mass. R. 258; Chitty on Cont. 419, 422. In all these cases it was held, that if an act is forbid by the law, it can give no rights to any party. A fortiori, in marriage contracts for marriage is held to be a contract-a void marriage can give no rights to any party.

Before the Court decides a marriage to be void, it is void ipso facto. It has been so held in England as to marriages in violation of their marriage act. Poynter on Marriage and Divorce 155, 156, 13 Law Libr.; Shelford on Marriage and Divorce 480, 33 Law Libr. And no right is acquired over the feme's property where the

marriage is void. Shelford, p. 478. These authorities shew that where a marriage is declared a nullity, neither the husband or the wife have any rights in the property of the other.

It is objected, that the indictment against these parties was bad, and that they could not plead by attorney; but neither objection is tenable. The indictment charges that the parties were married in the City of Washington, and have returned and are living in the county of Fauquier, and are cohabiting as man and wife, &c., contrary to the act of the General Assembly. They could not return to if they had not gone from the State of Virginia; and the conclusion contra formam statuti strengthens this construction of the averment. Hutchin's Case, 2 Va. Cas. 331, is equally vague, and it was sustained by the General Court.

This was an indictment for a misdemeanor, and therefore the appearance and pleading by attorney was proper. 1 Chitt. Crim. Law 436.

It

The act requires the Court to declare the marriage a nullity, but it requires no more. The Court may do more, but the act does not imperatively require it. is in the discretion of the Court to impose a fine upon the parties, or to require a bond from them with condition to separate. 1 Rev. Code, ch. 106, § 18, p. 399. In fact the judgment of nullity is a definite sentence of separation as man and wife.

We have already seen that the parties might appear by attorney, the prosecution being for a misdemeanor. As to the practice in the English Ecclesiastical Courts, it has no application. The statute directs the prosecution according to the usual course in cases of indictments or informations. 1 Rev. Code, ch. 106, § 18. The suggestion, that the parties were not informed of the proceedings, is without foundation. But these are objections which cannot be taken in this mode. The

1849. January Term.

Kelly

V.

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1849.

January

Term.

Kelly

V.

Scott.

judgment could only have been reversed by writ of error. The Court had jurisdiction of the cause, and its judgment is therefore conclusive until reversed upon appeal. 1 Chitt. Crim. Law 747. And the writ of error could only be by the parties themselves, or their personal or real representatives. 2 Stark. Evi. 436.

It is said the judgment against these parties was collusive and fraudulent. A collusive judgment is a judg ment founded on the assumption of facts as true which were not true. Here there is no doubt the facts were true; and either party might have given the information without being guilty of collusion or fraud. In point of fact, however, there is no proof that this proceeding was at their suggestion, or that they desired the prosecution. A witness was sent to the grand jury, and on his testimony the indictment was found. The judgment was such as the facts required; and that judgment is conclusive until reversed. And such is the general effect of judgments in cases of marriage, whether in the Common Law or Ecclesiastical Courts. Story's Conf. of Laws, § 587, and following; 3 Philips' Evi. 851-853, Cow. & Hill's edi.; Barber v. Root, 10 Mass. R. 260; Shelford on Mar. & Div. 471.

If the counsel for the appellant means that the subsequent cohabitation reversed the judgment of the Court, still it is insisted that the judgment is conclusive of the nullity of the marriage. The marriage and the judg ment were previous to the act of 1827; and it is unnecessary therefore to enquire into the effect of that act upon cases coming within its operation. If it be said that there might have been a second prosecution, and sentence based upon proof of cohabitation, still it will scarcely be contended that this is evidence to entitle the appellant to claim property. To punish the parties, this species of evidence is allowed; but to entitle the appellant to claim the property, a marriage must be proved.

Patton, for the appellant.

This is an effort by a creditor of a husband to subject the property of the wife, with whom he intermarried in 1821. Two of these plaintiffs were born after the judgment declaring the marriage a nullity. The parties lived together throughout their joint lives as husband and wife; had children as husband and wife; and he held and managed the property.

By the marriage settlement, which was at least good against the husband, the property was Mrs. Scott's for her life. His creditors, therefore, could not proceed against it until her death in 1833; and Kelly could not do so until 1835, the date of the judgment.

What was the purpose and object of the legislation on this subject? Was it not to protect the community from the scandal of such relations? Was it intended that every thing should go on after the judgment declaring the marriage null, as before, except that the property of the wife should be protected from the creditors of the husband? Was it the purpose to allow all the immorality between the parties, and only to injure third persons not parties to the proceedings?

The mariage between Alexander B. Scott and Miss Dixon, in the District of Columbia, was valid there; of that there is no question: Then was it competent for the Legislature to annul a marriage which was valid where it was contracted? Story, in his Conflict of Laws, § 223 a, after giving the authorities pro and con, sums up and says, it is settled in England and America that the marriage is valid; and this upon principles of public policy. It is said in Putnam v. Putnam, 8 Pick. R. 433, that this doctrine is established in England on the ground that Scotch marriages are excepted. out of the marriage act. But Story discusses this question, and shews that this is not the ground on which the doctrine is rested; but that the rule is the same as to marriages in other places in fraud of the English statute; and this too on grounds of public policy.