2

Former mar

riage.

The statute (2 R. S., 142, § 21,) provides that such bill may be filed by the parent or guardian, or by a next friend. I incline to think, however, that the act first referred to should be pursued. At any rate, it prevents any question arising, and as security would not be required in such a case to account for money, it seems advisable to follow it. See the practice stated, Vol. I., p. 54.

The chancellor, in case of a bill for a separation, has determined that the responsibility of a next friend means that he should be able to pay the costs, which being fixed at $250 where security for costs is given, a next friend ought to be worth at least that sum over and above all his debts.(1) It may therefore be suggested, whether an affidavit to that effect should not be taken upon making the appointment.

If the bill is on behalf of a feme covert, there must be a next friend, whether the suit is to annul the marriage on the ground of nonage, or any other cause.

If the marriage is sought to be annulled on the ground that a former husband or wife of one of the parties was living, it may be declared void on the application of either of the parties during the life-time of the other, or upon the application of such former husband or wife.(2)

By the 23d section, the issue of the subsequent marriage, where it was contracted with the full belief of the parties that the former husband or wife was dead, are entitled to succeed in the same manner as legitimate children. The issue so entitled must be specified in the sentence of nullity. This extends to children born or begotten before the sentence of nullity is declared.

Every marriage during the life-time of a former husband or wife, is absolutely void from its date, except where the former marriage of the party re-marrying has been dissolved or annulled for any cause, except the adultery of such party, and except where the former husband or wife has been finally sentenced to imprisonment for life.(3)

If, however, any person whose husband or wife has absented himself for five successive years, without being known to such person to be living during that time, shall marry during the life

(1) Robertson v. Robertson, 3 Paige, 388.
(2) 2 R. S., 142, § 22.

(3) 2 R. S., 139, § 5.

of such absent husband or wife, the marriage shall only be void from the time of the nullity being pronounced.(1)

If the ground for annulling the marriage is the idiocy of one of the parties, the application may be made by any relative of such idiot interested to avoid the marriage at any time during the life-time of either of the parties.(2)

So, if the ground is lunacy, any relative of the lunatic interested to avoid the marriage, may apply, during the continuance of the lunacy; or after the death of the lunatic in that state, during the life of the other party to the marriage.(3)

So, the lunatic may himself apply after his restoration to reason, but no sentence shall be pronounced, if it appear that the parties have freely cohabited after the lunatic was restored.(4)

And as to both idiots and lunatics, if no relative applies, a next friend, admitted by the court to prosecute as such, may apply to have the marriage annulled during the life-time of both parties.(5)

The children of a marriage annulled on the ground of idiocy, or lunacy, are entitled to succeed in the same manner as legitimate children, to the real and personal estate of the parent, who was of sound mind.(6)

It may be observed, upon these provisions, first, that by the general section, (the 4th,) the marriage is not void ab initio, but only from sentence pronounced. Hence, the marriage in these cases is voidable only. In England, insanity renders the marriage void from the beginning.(7)

Again, it is a settled principle, that in all cases of a merely voidable marriage, the jurisdiction of the ecclesiastical courts ceases with the life of either of the parties.(8)

The above provisions, extend this right in certain cases, for the life-time of the other party.

3

On the ground

of idiocy.

4

As to the interest which must exist, to entitle a party to ap- Who may conply, the following decisions have been made.

test the validity of a marriage.

(1) 2 R. S., 139, § 6.

(3) 2 R. S., 142, § 25.

(5) Ibid. § 26.

(2) 2 R. S., 139, § 5.

(4) Ibid. § 27.

(6) 2 R. S., 143, § 28.

(7) Turner v. Myers, 1 Hagg. Rep., 414, n.

(8) Elliott v. Gun, 2 Phillimore, 16. A case of an incestuous mar

riage, Poynter's Law of Divorce, 154, n. 6.

VOL. II.

30

5 Force or fraud.

A remainder-man may institute such a suit, heirs presumptive,(1) or any one whose interests under wills, powers of appointment, &c., may be affected by the marriage.(2)

By the ecclesiastical law, such persons may intervene at any stage of a cause, appeal against a sentence, or, if too late to appeal at the time of the intervention, may institute a new suit.(3)

This latter right is restricted, however, by the Revised Statutes, (2 R. S., 144, § 37,) by which a sentence of nullity of marriage, if pronounced during the life-time of the parties, shall be conclusive evidence of the invalidity of the marriage in all courts and proceedings, but if pronounced after the death of either of the parties to the marriage, it shall only be conclusive as against the parties to the suit, and those claiming under them.

A father of a lunatic who is of age, cannot, in England, institute such a suit, being neither committee nor guardian ad litem. He can only do so by showing an interest.(4) Under our statute of Descents, he would be, in many cases, entitled as presumptive heir.

A marriage may be annulled, on the ground that the consent of one of the parties was obtained by force or fraud during the life-time of the parties, or one of them, on the application of the party whose consent was so obtained, or of the parent or guardian of such party, or of some relative interested, to contest the validity of the marriage.(5)

If, however, it shall appear, that at any time before the commencement of the suit, there was a voluntary cohabitation of the parties as husband and wife, the marriage cannot be annulled on this ground.(6)

If there is any issue of such a marriage, the court shall decree the custody of the children to the innocent parent, and

(1) See Poynter's Law of Divorce, p. 161, and notes.

(2) Faremouth v. Watson, 1 Phill., 355. The sister of the husband in an incestuous marriage, had an interest under the will of the mother, contingent upon the brother dying without lawful issue. The nullity was pronounced on her application. The court said that a slight interest was sufficient to enable a party to bring such a suit.

(3) Poynter on Marriage and Divorce, 261.

(4) Turner v. Myers, 1 Haggard, 414, n.
(5) 2 R. S., 143, § 30.

(6) Ibid. § 31.

may also decree a provision for their education and maintenance out of the estate and property of the guilty party.(1)

6

A suit to annul a marriage on the ground of physical inca- Physical incapacity. pacity, can only be maintained by the injured party against the party whose incapacity is alleged, and shall in all cases be brought within two years from the solemnization of the marriage.(2)

The rule in the ecclesiastical courts of England is, that there must be three years cohabitation before a suit can be sustained, excepting in cases of a plain and irremediable imperfection. There is a marked contrast between our statutory provision, and this rule of the English courts. If our legislature judges most practically, viewing the matter as a mere question of evidence, the canon law seems to have the advantage, upon the point of delicacy.

Puffendorf makes a question, whether we can properly call it matrimony, when an ancient couple are linked together, without any prospect of a blessing from the bed.(3) The rule of law, and the maxims of propriety, seem well expressed in a passage from the Rituals of Boulogne, Soissons, &c., quoted by Mr. Poynter.(4) It must be established that the incompetency existed at the time of the marriage, and that it still remains without remedy.(5)

There was a case in England, in which the husband sought to have the marriage annulled on the ground of his own impotency. The libel was dismissed. Norton v. Seton, called Norton, 1820.(6)

It appears from the authorities cited by Mr. Poynter, especially that from Sanchez, that such a suit may be promoted, if

(1) 2 R. S., 143, § 32.

(2) Ibid. § 33.

(3) Puffendorf, Book 6, cap. 1, 25. He says, however, that in most commonwealths these matches are tolerated, inasmuch as the other end of matrimony, mutual assistance and comfort, will hold as strongly here as in any other case.

(4) A l'êgard des vielliards qui quoique d'un age trés avancé, sont néanmoins en état, de donner un consentement libre et volontaire au marriage, un curé nest point en droit de les en exclure; mais il doit communement tacher de les en detourner, sourtout lorsqúils veulent espouser de jeunes personnes; l'experience faissant connoitre que ces sortes des marriages sont souvent la source d'une infinite de désordres.

(5) Poynter, p. 125.

(6) 3 Phillimore, 147.

the husband was ignorant of his defect at the time of marriage. The case of Norton v. Norton, may be put upon the ground of knowledge, but the language of our statute seems wholly to exclude such a question.

See also on this subject, Briggs v. Morgan, 3 Phill., 327, and Tollard v. Wyboame, 1 Haggard, 728.

In the case of Valleau v. Valleau, 6 Paige, 211, it was held that the true construction of the 3d subdivision of the 42d section of the article was, that if the complainant knows that his wife has contracted a second marriage, and continues openly to cohabit with such second husband, or that she is living in open and continued adultery with another person, even without the usual form of a marriage, the right to file a bill for a divorce for such adultery will be barred after the expiration of five years, although such cohabitation or adulterous intercourse is continued down to the time of the commencement of the suit.

If the wife, after the husband has abandoned her, and been absent more than five years, marries a second husband, the first husband cannot obtain a divorce on the ground of adultery with the second husband subsequent to such marriage, unless he can establish the fact, that at the time of the second marriage, the wife knew that her first husband was living within five years then next preceding.(1)

To authorize a sentence of nullity on the ground of impotence, it is necessary for the complainant to establish the fact of the existence of the alleged incapacity at the time of the marriage, and that such incapacity still continues, and is incurable. This is the construction of our statutory provision, as well as the law of England.(2)

For the form of an order in a case of alleged impotence, see Appendix, No. 313.

In Devanbagh v. Devanbagh, 6 Paige, 176, the suit was to annul the marriage on the ground of impotency of the defendant. An order of reference had been made to a master, to take proof of the allegations, and to examine the defendant on oath. Upon the coming in of the report, the chancellor held,

(1) Valleau v. Valleau, 6 Paige, 207.

(2) Devenbagh v. Devenbagh, 5 Paige, 557.