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That the suit was brought by the father to annul the marriage of a party of competent age, without setting up any special interest, but averring the insanity of the son at the time; the fact being pleadable, the only question is, whether the person before the court is the proper person to plead it. It is not alleged that the son is now insane; and though under the care of his father, that may be only for weakness, as it is allowed a commission of lunacy cannot be obtained. He is then to be presumed sane, and, as such, capable of bringing suits, proprio jure no man can be plaintiff for him, he must complain; no man can be defendant for him, he must defend himself; no one can [ *201 ]pointment.(d) be *attorney or procurator for him, but by his own ap

But it seems that the legal obligation imposed by the statute 43 Eliz. c. 2, on the grandfather to maintain his grandchildren in the event of their becoming poor, lame, or impotent, is such an interest as will enable a father to sustain a suit for setting aside the marriage of his children on the ground of their insanity at the time of the marriage.(e)

The marriage of a lunatic being absolutely void, and not merely voidable, the validity of his marriage may be questioned and declared void after his death in a suit as to the right to administer. Thus administration of the effects of a wife was refused to the husband, on the ground that his marriage had been illegally contracted with a person of unsound mind.(f)

SECT. 3.-OF IMPOTENCE.

Impotence a ground for Nullity of Marriage.]—Marriage having been ordained for the procreation of children, a capacity of consummation is implied in the marriage contract; and is so far one of the essential duties for which the parties stipulate, that the incapacity of either party to satisfy that duty affords a ground for nullifying the contract.(g)

This impediment to lawful marriage is known by the general term impotence, which may arise from malconformation, or frigidity of constitution, or from any other physical defect in the [ *202 ] organs of generation. Impotence then consists in the

incapacity for copulation, or in the impossibility of accomplishing the

(d) Turner v. Meyers, 1 Hagg. Cons. R. 414, 415, n.

(c) Ray v. Sherwood, 1 Curteis, 173–235. Affirmed by judicial committee of privy council, 6th Dec. 1837. Ante, p. 179.

(f) Browning v. Reane, 2 Ph. R. 69. See Parker v. Parker, 2 Lee, 382.

(g) 2 Hagg. Cons. R. 62; Co. Litt. 236, a; 1 And. 185; 5 Rep. 98, b; 2 Leo. 170. Quia matrimonium ordinatum fuit, non solum ad evitandam fornicationem, sed etiam ad proles procreandas; si matrimonium (tale quale) fuerit, inter virum et mulierem, de facto, solemnizatum, qui omnino inhabiles

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act of procreation. The manifest causes of impotence in both sexes are divided into physical and moral. The causes of impotence in man arise from two sources, from malformation of the genitals or from want of action in them; but in females impotence can only depend on malformation, either natural or acquired.(h)

It does not however, come within the design of this work to enter into an examination of this very delicate subject; ample information may be found upon it in other writers.(i)

Duty of the court in suits for Impotence.]-Cases of impotence and malconformation are necessarily attended with serious mischiefs to parties, in the disappointment of very laudable or allowable purposes of marriage, the desire of having children, and the lawful enjoyment of each other's person. Such cases of disappointment, so originating, may not be frequent; but when any such occurs, it is a subject, which the court is bound to entertain, and to treat according to the ordinary modes of investigating the truth of the complaint, for the relief of the injured party.(k)

Courts of justice are not invested with the privilege of selecting cases on the grounds of personal feelings of delicacy, but are bound to exercise the jurisdiction which has been given them by law, and are not at liberty to decline it, merely because the cases are offensive to private delicacy. Therefore cases of impotency, though of an unpleasant nature to entertain for the purpose of judicial examination, must be dealt with when brought under judicial cognizance.(1)

The court will be cautious against collusion between the parties where it can reasonably be suspected, but it will not be presumed without some ground.(m)

*Cohabitation previous to Commencement of Suit.]-A three years' cohabitation is required by law before a [ *203 ] suit can be entertained for annulling a marriage by reason of impotence, unless it appear from evidence that the party is so absolutely and naturally incapable of performing the act of generation,(n) that the infirmity can be ascertained at once, as in the case of malconformation.(0)

A triennial cohabitation is so requisite, that if the parties have been married three years, but a great part of that time have been absent from each other, the man will be allowed the further time during which he had been absent.(p) Inspection was refused until after a triennial cohabitation.(g)

Either Party may be Complainant.]-The rights and duties of both parties being coequal, either party may promote a suit for

(h) See Dr. Ryan's Philosophy of Marriage, 300-308.

(i) See works on Medical Jurisprudence, 1 Chitty, 370-382; Beck, 5th ed. 1836, pp. 49-68; 1 Paris & Fonbl. 168. 197-215; Bayle's Dict. tit. Quellenec.

(k) Briggs v. Morgan, 2 Hagg. Cons. R. 329.

(l) Harris v. Ball, Deleg. 16 July, 1789, cited 2 Hagg. Cons. R. 327; Briggs v. Morgan, 2 Hagg. Cons, R. 326.

(m) Pollard v. Wybourn, 1 Hagg. Eccl. R. 726. See 2 Hagg. Cons. R. 332; 2 Phill. R. 10.

(n) Ayliffe's Parer. p. 228.-" Hæc triennalis expectatio non est necessaria, ubi statim possit constare de impotentia coeundi."Oughton, tit. 217, n. b.

(0) Briggs v. Morgan, 3 Ph. R. 329.
(p) Welde v. Welde, 2 Lee, 580.
(q) Aleson v. Aleson, 2 Lee, 576.

obtaining a sentence of nullity, but there must be such evidence as will satisfy the court that at the time the marriage took place there existed an impediment to consummation, and that it is incurable.(r) In 1807 the marriage took place; in 1809 the wife instituted a suit to annul such marriage, on the ground of the impotency of her husband. A libel was given in alleging his incapacity to consummate the marriage; and the husband admitted this fact in his answers. There was evidence also, the report of two physicians and two surgeons, who had been duly appointed and sworn to inspect the person of the husband; which stated in substance, that though the disease and imperfection of the parts was not such as to imply impotency in the execution of their functions, yet that having heard his own accurate history of his alleged impotence, they put faith in his account; and as he was in good health, they could hold out no hopes of his impotence being remedied by any medical treatment. Lord Stowell said, "I think there is enough to satisfy the court, that at the time when this marriage took place, there was incom[ *204 ] petency, on the part of the man, to perform the duties of marriage; a capacity to perform which is necessary to render it valid. The court is, upon the whole, satisfied of the existence of this fact, and that there has been no collusion between the parties. There is an air of truth and sincerity in the evidence; and the party appears willing to compensate, as far as is in his power, the injury which he states he has ignorantly done."

The court pronounced the sentence of nullity.(s)

It seems that where the defect is natural, that the presumption is, that it existed before the marriage, but a contrary presumption arises where the defect is only accidental. (t)

Suits of this kind brought by the husband against the wife, have been of rare occurrence; the suit has generally been brought by the wife; it is said that two instances only were established by proof in sixty years. Malformation is not common in either sex, and probably more uncommon in the female. Where such defects exist, parties will often be discreet enough to abstain from marriage entirely; or where a marriage has been contracted in ignorance of the defect, there may be many reasons, some good and some perhaps occasionally bad, which will prevent the parties from making an application to the court, or any other public disclosure. In point of effect upon the state of domestic life, it cannot be maintained that the injury is not as great on the side of a husband as of a wife, and that there is not the same ground of complaint to the fullest extent.(u)

The nature of the proofs required in cases of this kind is thus stated in Oughton.(x)

(r) Brown v. Brown, 1 Hagg. Eccl. R.

523.

(8) Greenstreet, falsely called Cumyns v. Cumyns, 2 Phill. R. 10; 2 Hagg. Cons. R. 332.

(t) Sanchez, lib. 7; Disp. 103, n. 4; Godol. Rep. Canon. 494.

(u) Briggs v. Morgan, 2 Hagg. Cons. R. 326; 3 Phill. R. 327.

(x) "Ad probandum defectus judex petitionem partis allegantis impedimenta (si talia sint, quæ ex corporis inspectione judicari. possunt) compellere potest virum ad exhibendum presentiam suam et ad ostendendum (in loco aliquo secreto, per judicém assignando) pudenda sua, seu illos corporis defectus quos mulier objicit (si ex inspectione corporis apparere possint) medicis et chirurgis peritis,

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*In one case the marriage took place in April, 1815, the man being of the age of forty-one, the woman seventeen. The parties had cohabited together, at intervals, as man ahd wife till the spring of 1823, when, under medical advice, they ceased. to occupy the same bed, in consequence of her health having suffered; but they lived under the same roof until 1826. A medical certificate fully proved that the marriage had never been consummated, and that the woman, though virga intacta, was apta viro, Dr. Lushington thought that there were the very strongest reasons to presume the impotency of the man. If the parties lay together in one bed for so many years, of such ages, and the woman is certified to remain virga intacta, there cannot be a stronger presumption that impotency existed, and that it was incurable. Such a lapse of time satisfies the court that in all human probability the husband was incapable of consummating the de facto marriage; but the case did [ *206 ] not depend upon inference *from these facts only, for the impotence of the man was strongly confirmed by two acknowledgments to surgeons long before the institution of the suit. The sentence of nullity was decreed. (y)

It is said that the competency of the woman ought to be tried by the careful inspection of grave and honest matrons of her parish, and to be well attested by them on oath, viz. that she can never be a mother or proper wife, because she is nimis arcta and unfit for generation.(2)

Medical Certificate.]-It seems that the report of medical men, who have inspected the man, is not alone sufficient evidence of

prius judicialiter, in præsentiâ partis adverse, de diligenter inspiciendo virum et de referendo in scriptis eorum judicium, juratis. Et si medicorum et chirurgorum judicium sit, et quod morbus vel defectus viri fuerit insanabilis et incurabilis (tamen tenentur, in relatione eorum judicii, ipsum morbum scu defectum specificare, ne circumveniatur ecclesia,) et quod (in eorum scientia doctrinâ et experientia) morbus aut defectus hujusmodi nulla re aut arte medicâ curari possit, mulier obtinebit in causâ.

"Hoc addito et allegato, ex parte mulieris, quod ipsa sit juvenis et ad procreationem apta, et quod, per tres annos insimul pernoctâ runt et quod quamvis a marito cognosci cupiebat ab eo tamen cognita non fuit, nec cognosci potuit. Et si defectus, prædicto viro (ut præfertur) objecti, non possunt directe, per medicos et chirurgos juratos, judicari, aut decerni; vel forsan dubia sit eorum relatio, allegetur (ex parte mulieris) non solum, quæ ultimo recitata sunt, sed etiam, hoc addito; quod sit virgo intacta, nec a quoquam cog. nita. Et ad hoc probandum, judicialiter (precedente petitione, ex parte mulieris) jurandæ sunt obstetrices et mulieres vetulæ, et in his casibus expertæ, et peritissimæ, ad inspiciendam mulierem, an vera sint hæc allegata.

"(Hic nota; quod si defectus objiciantur

contra mulierem, probandi sunt, isto modo,
per inspectionem, et relationem, harum mu-
lierum juratarum.) Et si judicio hujusmodi
obstetricum et mulierum reperta fuerit virgo,
saltem fœmina intacta, nec a quoquam cogni-
ta; et si vir non possit aliquos defectus obji-
cere contra uxorem, ob quos cognosci non
possit; hæc dictarum mulierum relatio, cum
judicio medicorum et chirurgorum, quamvis
dubio, unà cum cæteris prædictis indiciis
(videlicet, in eo quod mulier si juvenis, ct
quod concubuit cum viro, per triennium, ac
quod, ex aspectu, apta et idonea videatur, ad
procreationem) sufficiunt ad divortium; scu
potius ad pronunciandum, nullum ab initio,
matrimonium fuisse inter hujusmodi person-
as; easque ab invicem, et ab omni vinculo,
et fœdere conjugali, liberas, et immunes
fuisse, et esse."-Oughton, tit. 217.

In France, about the middle of the sixteenth century, a species of proof, called Le Congres (coitus coram testibus) was introduced in that kingdom, but was abolished by an arrêt of the 18th February, 1677.-Dictionnaire des Sciences Medicales, art. Congres, by Marc-Mahon, 1 vol. p. 70. See Poynter on Marriage and Divorce, 135—137, 2d ed.

(y) Pollard v. Wybourn, 1 Hagg. Eccl. R. 725.

(z) Ayl. Parer. 228.

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impotence; such proof, even as collateral, is always received with caution. (a)

In a suit of nullity by reason of the man's impotency, the court always requires a certificate of medical persons as to the state and condition of the woman. The invariable practice is not to give reasons in the certificate; it is sufficient if the certificate state that the marriage had never been consummated, and that the woman was virgo intacta, yet she was apta viro. In the first place it is a received maxim, cuilibet in arte suâ credendum est." Secondly, if the grounds were given, how could the court comprehend the reasons, and decide between conflicting opinions? Besides, the introduction of the grounds would lead the court into minute inquiries about matters, the discussion of which the court would be most anxious to avoid, unless it were imperatively called upon to pursue the investigation.(b)

It is not necessary that the party's answers should be given in, or that he should submit to medical inspection. If such a rule provailed, the man would only have to withdraw out of the reach of the process of the court, and thus defeat the ends of justice, and defraud the woman of her remedy; therefore in a case where the court was satisfied that there was no collusion, and the man having been personally served with a monition at Cassel in France, to sub[ *207 ] mit himself to *medical inspection, but had not obeyed the process, the court relieved the lady, on evidence of the husband's impotency.(c)

Effect of the Sentence of Separation.]-By the canon law, the marriage is not absolutely dissolved; the parties are separated; and if the church is deceived, the former marriage is to be renewed; and if a second marriage is contracted, it becomes null and void. Sir J. Nicholl said, "What a state to place the parties in. This is something in the text law which I cannot readily assent to belong to the law of this country."(d)

It is said a man may be habilis and inhabilis at different times where the inability is ex maleficio; but if a man has a perpetual and natural impotency, it is impossible for him to be habilis at any time.(e)

There is an early case, although on account of the circumstances with which it is attended, it may not be entitled to much weight, in which it was held, that the impotence of a man with respect to a particular woman, was a sufficient ground for divorce.

Lady Essex had, on her petition to King James the First, obtained a commission under the great seal, directed to the Archbishop of Canterbury and five other bishops, &c. to proceed in a cause of

(a) Norton v. Seton, 3 Phill. R. p. 160. (b) Pollard v. Wybourn, 1 Hagg. Eccl. R. 725.

(c) Pollard v. Wybourn, 1 Hagg. Eccl. R. 725. 66 Quamvis utroque conjuge fatente impedimentum ac triennio lapso, sanum consilium sit facere conjuges inspici; at id non est necessarium."-Sanchez, lib. 7, Disp. 108, No. 6.

(d) 3 Phill. R. 162.164.

divorce for frigidity, and afterwards the hus-
band married another woman by whom he
had issue; and it was adjudged that the sec-
ond marriage was void; and the civilians gave
the rule-qui aptus est ad unam aptus est ad
aliam, et quando potentia reducitur ad actum
debet redire ad primas nuptias.

Stafford v. Mongy, Dyer, 179, n.
Vin. Abr. 221, 222.

See 4

(e) Ayliffe's Parer. 228; Bury's Case, 5

In a case of bastardy, the wife sued a Rep. 98, b.

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