the act to settle the estate and condition of the innocent issue of such marriages, not to screen the delinquent parties."

The ecclesiastical court, after the death of either of the parties, may proceed to punish the survivor for incest.

In Harris v. Hicks, (f) where a man had married the sister of his deceased wife, and it was suggested that the second wife was dead, and a son, the issue of the second marriage, would be entitled to lands, a prohibition was issued to restrain the ecclesiastical court from proceeding to annul the marriage between the parties, after the death of one of them; but it did not prohibit them from punishing the survivor for the incest committed during cohabitation.

*As to avoiding Marriages within the prohibited De[ *179 ] grees.]-Marriages before 31st August, 1835, between parties within the prohibited degrees of consanguinity are still voidable, notwithstanding the stat. 5 & 6 Will. 4, c. 54.(g) But the ecclesiastical court cannot dissolve such marriages after the death of either of the parties, on the ground that they were incestuous.(h)

Such marriages, if not avoided during the lifetime of both the parties, confer the civil rights of marriage as the right of dower, and of administering the effects of the deceased. (i)

Either of the parties may bring a suit to have his or her marriage declared null and void, on the ground that they were within the prohibited degrees.(k) The liability of the father to support the issue of his child, under the stat. 43 Eliz. c. 2,(l) was held to give such an interest as would enable him to sustain a suit for ascertaining the validity of the marriage of a child who had attained the age of twenty-one years.(m) A mere stranger cannot institute a civil suit for the purpose, without showing a special interest, which it seems must be of a pecuniary nature.

Thus the sisters, and next of kin of their brother, who had a contingent interest under a will in the event of his dying without lawful issue, were held competent to sustain a suit for setting aside his marriage within the prohibited degrees.(n)

So persons claiming in remainder may bring suits of nullity for declaring a marriage to be void on account of consanguinity.(o) *We have already seen(p) that by stat. 5 & 6 Will. 4, [ *180 ] c. 54, marriages which had before the passing of that act been celebrated between persons within the prohibited degrees of affinity, cannot be annulled, unless in a suit which was depending at` the time of the passing of that act (August 31, 1835.)

(f) 2 Salk. 548. Sce Brownsword v. utrique partium causa divortii, a vinculo Edwards, 2 Ves, sen. 245.

(g) Ante, p. 155.

(h) Wortley v. Wilkinson, Holt, 457; Hinks v. Harris, 4 Mod. 182; 2 Salk. 548. (i) Elliott v. Gurr, 2 Phill. R. 16. See Co. Litt. 33 a; Hemming v. Price, 12 Mod. 432; Haydon v. Gould, 1 Salk. 119.

(k) Si quis contraxerit, et solemnizaverit matrimonium in gradu consanguinitatis, vel affinitatis, de jure Divino prohibito, vel de legibus hujus regni non permisso (quia hujus modi copulatio non est matrimonium, sed adulterium, seu potius incestus) competit

matrimonii, seu potius (quia, ab initio, non fuit matrimonium) causa nullitatis matrimonii. Oughton, tit. 193, s. 15.

(1) See 1 Bla.Com. 448; 2 Nolan's Poor Laws, 259-276.

(m) Ray v. Sherwood, 1 Curteis, 173235, affirmed by judicial committee of the Privy Council, 6th Dec. 1837.

In Ray v. Sherwood(p) the marriage between the parties took place in the month of June, 1835; on the 24th August in the same year a citation was taken out against both parties in the civil form, and was personally served on both parties on the same 24th of August. The citation called on the parties to appear on the third day after service, if that should be a court-day, if not, on the court-day next ensuing. The 9th September was the first court-day, and then the citation was returned. Proxies for Mr. Ray and his daughter were brought in on that day. On the 9th October a proxy for Mr. Sherwood was exhibited. On the 9th September the libel was brought in, and on the 17th November additional articles.

One question was, what the legislature meant by " a suit depending at the time of the passing of the act." It was contended for Mr. Sherwood that there could be no lis pendens without a litis contestatio, which clearly had not taken place in this cause on the 31st August, 1835. That the words in question were words of art, and having been used in reference to proceedings in the ecclesiastical courts, the legislature must be supposed to have used them in the sense applied to them by these courts. From various authorities, foreign and domestic, it was contended, that by "suit depending in the ecclesiastical court" was intended lis pendens, and that there is no lis pendens, and can be none, until there has been a contestatio litis; and, as a necessary consequence, that as there had not been any contestatio litis in that case, there could have been no lis pendens, and, consequently, no suit depending in the ecclesiastical court. Dr. Lushington thought that the rule was "That the lis pendens should be considered to commence from the time of taking out the formal proceedings, from whatever court they may originate, and serving notice of these proceedings, [ *181 ] or attempting to serve it, on the defendant, provided the instrument initiating or commencing the process shall, with sufficient clearness and certainty, state the object of the suit; for this appears to be the principle which has governed from the time of Justinian to the present day. Now the citation in this case does clearly show the parties to the suit, the jurisdiction, and the objects sought to be obtained by the suit. He was therefore strongly inclined to come to the conclusion, that parliament has used these words in a general sense, and could discern no adequate reason for imposing a more restrictive meaning. He'conceived that the legislature intended that the relief proposed to be given should not be extended to cases, save where persons having an interest had already asserted that interest by the commencement of legal proceedings. He could not conceive any just or adequate cause for a different intention, and for depriving them of their right to prosecute a suit which, in this case, was as much commenced bona fide by the party, by the service of the citation, as if a litis contestatio had taken place.(g)

(p) 1 Curteis, 173, ante, p. 171.

(q) 1 Curteis, 183. The learned judge said that he found extreme difficulty in say. ing that the lis pendens entirely depends on there being a contestatio litis. In the first place a litis contestatio exists only in plenary suits, and it is exceedingly difficult to say what is equivalent to litis contestatio in sum

mary and other proceedings. This point was very much considered in the case of Byerly v. Windus, 5 B. & C. 23; 7 D. & R. 596, where Bayley, J. is reported to have said, " According to the usage and course of proceeding in the Court Christian, neither the personal answer nor the plea ever put in issue any of the facts in a libel, they are put

On appeal to the Arches Court of Canterbury, Sir H. Jenner was of opinion, that no technical meaning was intended to be applied by the legislature to the words in question; and secondly, that if those words were to receive an interpretation according to the technical rules of practice of the court, they would not take away the jurisdiction of the court; he therefore entirely agreed in opinion with the judge of the court below on this point, that the jurisdiction of the court was not taken away by the act of parliament, on the ground that

there was no suit depending touching the validity of the [*182 ] marriage at the passing of the act, which was requisite in order to bring it within the terms of the exception of the act, which requires that the sentence of nullity should be pronounced in "a suit depending at the time of the passing of the act."(r)

Suits for nullity of marriage, by reason of incest, are usually promoted at the instance of a party by virtue of the office of the judge, upon the party promovent entering into a bond to pay such costs and charges as the judge or his surrogate should allot in case of failure. A decree in this case is personally served, charging the defendant with being guilty of the foul crime of incest; upon the return of this decree, and an appearance being given, or in event of non-appearance, a further decree, calling upon the defendant to see proceedings, is served, and if no notice be taken the suit proceeds, and articles are exhibited and admitted, pleading the marriage and cohabitation of the father and mother of A. B. and C. D., and annexes the certificate of such marriage, the birth and consanguinity or affinity of A. B. and C. D., when and where they were baptized, annexes a copy of the certificate of such baptism, and further pleads the identity of the parties, the marriage of the defendant with A. B. living and cohabiting as man and wife, and a copy of the certificate of marriage and identity, the death of A. B., and subsequently marrying C. D., the marriage *certificate, identity of parties, the committing of incest, [ *183 ] jurisdiction of the court, and prays that the judge do pronounce the marriage null and void, and that the defendant should be corrected.(s)

in issue or admitted by a previous step-a negative or affirmative issue; a negative issue denying what the libel states; an affirmative issue admitting it." Dr. Lushington referred to the case of Pigott v. Now. er, 3 Swanst. 535, where Lord Nottingham laid down what he considered to be lis pendens, and which was held to be entitled to great weight.

(r) Ray v. Sherwood, 1 Curteis, 206-222. The learned judge referred to certain forms in the practice of the court, all of which stated "a cause depending;" notwithstand ing that, in an appeal from a grievance on account of the rejection of the libel, there could have been no contestatio litis. From certain passages in Oughton, tit. 198, 201, 31, which were cited, it was thought that he considered that there was a lis pendens after the issuing of the decree or service of the JULY, 1841.-0

citation. The learned judge said, "So it appears with reference to the customary form of the instruments in proceedings in the ccclesiastical courts, and also to the authcrity of Oughton, that the contestatio litis is not necessary to constitute a lis pendens ; that there may be a suit depending in the ecclesiastical court before contestatio litis, and that the lis pendens, according to this authority, commences with the extracting and service of the citation; and if not, by analogy with other courts, on the return of the citation, whenever it may be." 1 Curteis, 215–222.

In chancery, a subpoena served is not a sufficient lis pendens; unless a bill be filed; but when the bill is filed the lis pendens begins from the service of the subpoena. Anon. Vern. 318.

(8) 2 Chitty's Pr. of the Law, 489, 490.

It is competent to the court to pronounce a sentence annulling a marriage between a man and the sister of his former wife, upon a citation calling upon the parties to answer merely to a suit for incest, although nothing was said therein of annulling the marriage of the parties.(t)

SECT. 2.-OF MENTAL INCAPACITY.

Incapacity of Idiots and Lunatics.]-The consent of a free and rational agent being an essential ingredient to the validity of the marriage contract, it necessarily follows that neither lunatics nor idiots are capable of entering into that contract.

The general rule upon this subject is thus stated by Blackstone.(a) "A fourth incapacity is want of reason, without a competent share of which, as no other, so neither can the matrimonial contract be valid. It was formerly adjudged(b) that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination, since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to any thing. 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. And 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.

This doctrine is fully confirmed by modern authorities. In Turner v. Myers, (c) Lord Stowell observed, "A defect of capacity invalidates the contract of marriage as well as any *other con[ *184 ] tract. It is true, that there are some obscure dicta in the earlier commentators(d) on the law 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, (e) when the effect of all these dicta was brought before the court; and it has been since acted upon in various cases (f) in this court, which it is unnecessary to review."

Sir J. Nicholl, after quoting the above passage from Blackstone, 'said, "Here then the law and the good sense of the law are clearly laid down; want of reason must, of course, invalidate a contract, and the most important contract of life, the very essence of which is consent. It is not material whether the want of consent arises from

1) Chick v. Ramsdale, 1 Curteis, 34; Blackmore v. Brider, 2 Phill. 359; Cleaver v. Woodridge, ibid. 362 n.

(a) Com. 438, 439.

(b) See Roll's Abr. 357; Shepp. Abr. tit. Idiot; 1 Sid. 112; Harg. Co. Litt. 80, a, n. (1).

(c) 1 Hagg. Cons. R. 416, 417.

(d) Sanchez, lib. 1, disp. 8, num. 15, et seq. is quoted in the report, An qui ratione destituti sunt ut insani et mente capti possint contrahere sponsalia, &c.

(e) Morison v. Stewart, Deleg. 1745. (f) Cloudesley v. Evans, Prerog. 1763 Parker v. Parker, 1757.

idiotcy or lunacy, or from both combined; nor does it seem necessary, in this case, to enter into any disquisition of what is idiotcy, and what is lunacy; complete idiotcy, total fatuity from the birth, rarely occurs; a much more common case is mental weakness and imbecility, increased as a person grows up and advances in age, from various supervening causes, so as to produce unsoundness of mind. Objects of this sort have occurred to the observation of most people. If the incapacity be such, arising from either or both causes, that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, to take care of his or her own person and property, such an individual cannot dispose of her person and property by the matrimonial contract, any more than by any other contract. The exact line of separation between reason and incapacity may be difficult to be found and marked out in the abstract; though it may not be difficult, in most cases to decide upon the result of the circumstances."(g) Weakness circumvented by Fraud.]-Considerable weakness of mind, circumvented by proportionate fraud, is sufficient to invalidate the fact of marriage. A marriage 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 and treated as of unsound mind, was pronounced null and void, and the pretended wife condemned in costs. This was decided in a suit of nullity of marriage, instituted by the Earl of Portsmouth, acting by his committee, against Mary Ann Hanson, falsely calling herself the Countess of Portsmouth, to have a marriage in fact solemnized between them declared to be null and void in law.

[ *185 ]

The proceedings originated in the following circumstances:-In January, 1823, a commission issued to inquire into the alleged lunacy of Lord Portsmouth. The inquisition was executed. Very long proceedings took place. The matter was strenously contested. A great number of witnesses was examined, and the finding of the jury was," that Lord Portsmouth is of unsound mind, so that he is not sufficient for the government of himself and his property, and has been in the same state of unsound mind from the 1st of January, 1809.” In consequence of this finding, a distant relation was appointed committee; and by an order made in the Court of Chancery, the committee was directed to institute proceedings in the ecclesiastical court, "for the purpose of annulling and declaring such marriage void." A long libel was given in, setting forth in detail the mental condition and unsound conduct of Lord Portsmouth, and the measures pursued to effect the marriage; his birth in December, 1767; the death of his father in 1797; the great weakness of his mind from the earliest period; his first marriage in 1799; the settlement on that marriage, and the names of the trustees, Mr. Hanson, the solicitor of the family, being one of these trustees. The libel *went on to state, that, after that marriage, his mental weakness increased, [ *186 ] until at length he became of unsound mind; that he so continued and still continues of unsound mind; averring, therefore, that he was

(g) Browning v. Reane, 2 Phill, R.70, 71.