commission of lunacy has issued, and the party is before the Court, to direct an issue to try whether the party was of sound mind at the time of the contract of marriage, and if he was, it is of no consequence in what state he might have been, either before or after (k). Where a young lady had been insane, and, with her father's consent, was married during a lucid interval, Lord Chancellor Eldon afterwards examined her, and found that she was affected with a certain degree of morbid feeling; and it appeared in evidence, that, without any apparent foundation for the notion, she always believed that somebody had poisoned her. As she was a ward of the Court, and no commission of lunacy existed, an issue was directed, to try whether she was of sound mind at the time of the marriage; and it was found that she was of sound mind (). By the present marriage act (m), it is provided, that, where the father is non compos mentis, or where the guardian or mother, whose consent is requisite, is non compos mentis, or beyond the seas, or unreasonably refuses to consent, the Court of Chancery may authorize the marriage. Where it is sufficiently proved in the Ecclesiastical Court that a party was deranged at the time of marriage, it will be pronounced void. And in that Court, a party who was insane at the time of contracting a marriage, may himself, on recovering his senses, institute a suit to set aside his marriage, on the ground of his own incapacity at the time. The learned Judge laid it down, as perfectly clear in law, that a party may come forward to maintain his own past incapacity, and that a defect of capacity invalidates the contract of marriage, as well as any other contract (n). But the degree of proof must be stronger than ordinary, when a person brings a suit or allegation of his own incapacity, by exposing to view the changes of his mind (o). The committee of one (k) See Ex parte Ferne, 5 Ves. lar provision. 832. (1) 1 Dow P. C. 178. (m) 4 Geo. 4, c. 76, s. 17. The 26 Geo, 2, c. 33, contained a simi (n) Twiner v. Meyers, 1 Hagg. Cons. R. 414. (0) S. C. 418. non compos may also institute a suit for nullity of marriage, on account of the alleged incapacity of the party, at the time of contracting it (p). But the finding of the jury under a commission of lunacy is only a circumstance, and a part of the evidence in support of the unsoundness of mind at the time of the marriage, as the Ecclesiastical Court requires to be satisfied by its own evidence, that grounds of nullity existed (q). References have been sometimes made to the Master to inquire whether it is proper that any steps should be taken for avoiding the marriages of persons who have been found lunatics by inquisition, and their committees have been ordered to institute a suit in the Ecclesiastical Court for that purpose. Where a party had been found a lunatic from a period antecedent to his marriage, and a petition of his committees stated that he was insane, and had not a lucid interval at the time of the celebration of the marriage, and was wholly unfit to sanction the same, and that the person he had married was a loose character, and the Master had certified that it would be proper to try the question of the insanity of the lunatic at the time of marriage in the Ecclesiastical Court-it was ordered that the committees should be at liberty to institute and prosecute such proceedings in the Ecclesiastical Court as they should be advised, for the purpose of having the marriage declared void (r). In another case, it was referred to the Master to inquire and certify whether any and what proceedings were necessary to be taken by the committee of the estate of the lunatic with respect to his marriage, and as to the validity of certain deeds (s). An order founded on the Master's report, was afterwards made, that the committee of the person and estate of the lunatic should be at liberty, in his name and on his behalf, to commence and prosecute such proceedings in (p) 2 Phill. 160; Fust v. Bowerman, cited in 2 Hagg. Cons. R. 171; The Earl of Portsmouth v. The Countess of Portsmouth, 3 Add. 63. Phill. 90; see ante, p. 64. (r) In re Smith, 6 November, 1818. (s) In re The Earl of Portsmouth, (2) 1 Hagg. Eccl. Rep. 356; 2 5 Aug. 1823. GG the proper Ecclesiastical Court as he might be advised, for declaring such marriage to be void (v). In all suits of nullity of marriage brought by or on the part of the husband, the wife de facto is regularly entitled, as well to alimony pending the suit, as to payment of all such costs as she incurs in her defence. And the Ecclesiastical Court will refuse to proceed in a suit by the committee of the husband for setting aside a marriage, even although fraud is imputed to the wife in procuring it, until funds have been provided by such committee to enable the wife to conduct her defence (w). Where a marriage de facto was solemnized 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), it was pronounced null and void; and the pretended wife condemned in costs. Thus, in a suit of nullity of marriage, instituted by the Earl of Portsmouth, acting by his committee, against Mary Ann Hanson, falsely calling herself countess of Portsmouth, to have a marriage in fact solemnized between them declared to be null and void in law. 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 strenuously contested. A great number of witnesses were 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 ) In re The Earl of Portsmouth, of Portsmouth, 3 Addams, 63; Smith untess of Portsmouth v. Earl cited ibid. 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, the solicitor of his family being one of the trustees named in such settlement. The libel went on to state, that, after that marriage, his mental weakness increased, until at length he became of unsound mind; that he so continued and still continues of unsound mind-averring, therefore, that he was from his birth, and before his first marriage, not of "unsound," but only of "weak" mind, which afterwards became unsound. The libel then proceeded to allege a variety of facts from that marriage till the death of his first wife, as indicating unsoundness of mind, and proving that he was treated as a person incapable of managing his own property, and was always kept under a certain degree of superintendence and restraint. It further recounted Lord Portsmouth's conduct on the death of his first wife, in November, 1813, and the circumstances attending his second marriage, on the 7th of March following, to shew that such marriage was not the act of a person of sound mind, but was effected by fraud and circumvention. It then detailed the subsequent conduct of Lord Portsmouth, and the treatment he experienced, in continuation and confirmation of his former unsoundness. It mentioned the birth of a female child at Edinburgh, in July, 1822; his removal from thence just before that event by some of his family, and the subsequent proceedings under the inquisition already mentioned. This being the general substance of the libel, it prayed "that the marriage may be declared null, by reason of the Earl being at the time of unsound mind, and incapable of forming such a contract; and also by reason of the fraud and circumvention practised on him upon that occasion; and that Mary Ann Hanson may be condemned in the costs of suit." On the part of Lady Portsmouth, an allegation in reply was given in, setting forth that Lord Portsmouth was possessed of a capacity and understanding fully equal to the ordinary transactions of life; was so considered and treated by all persons, till removed from Edinburgh on the 2nd of July, 1822; corresponded with his friends; mixed in society like other noblemen and gentlemen; in 1790, on coming of age, suffered recoveries with his father, and made a new settlement of his family property. It explained the arrangements on his first marriage, and detailed his observations upon it. It alleged that he settled accounts with his agents, attended public meetings and committees, prosecuted an offender, and was examined as a witness in 1802; was much affected at the death of his wife; that the second marriage was freely entered into, was his own act, and the result of no fraud; that his family wrote letters of congratulation on that marriage; that, in 1814, his brother applied for a commission of lunacy, which was refused; that, subsequently, in 1815, Lord Portsmouth executed a will and codicil, exercised his functions as a peer, and cohabited with Lady Portsmouth till removed by force from Edinburgh; and it exhibited many of his letters. This allegation consisted of above thirty articles, and fifty-seven witnesses were examined in support of it. The allegation on the other side consisted of nearly fifty articles supported by sixty witnesses and upwards. Sir John Nicholl observed, in giving judgment—" The law of the case admits of no controversy, and none has been attempted to be raised upon it. When a fact of marriage has been regularly solemnized, the presumption is in its favour; but then it must be solemnized between parties competent to contract, capable of entering into that most important engagement, the very essence of which is consent; and without soundness of mind there can be no legal consent-none binding in law: insanity vitiates all acts. That considerable weakness of mind, circumvented by proportionate fraud, will vitiate the fact of marriage, whether the fraud is practised on his ward by a party who stands in the relation of guardian, as in the case of Harford against |