England, under a dispensation from the Pope, and a decree of nullity of marriage was pronounced; but this may well have been upon the ground that, by ecclesiastical law, the marriage was voidable because its validity was called in question by one of the parties during the lifetime of the other (Prentice (otherwise Medina) v. Medina, unreported).

A marriage is equally void or voidable, as the case may be, though one of the parties be illegitimate (R. v. Inhabitants of St. Giles, 1840, 11 Ad. & E. N. S. 173; R. v. Brighton, 1861, 1 B. & S. 447), or the consanguinity or affinity be constituted through the half-blood (Mette v. Mette, 1859, 1 Sw. & Tr. 416); but the Statute 28 Hen. VIII. c. 7, being repealed, mere cohabitation, before marriage, with a relative of the other party to the marriage will not constitute affinity; to constitute affinity there must have been an actual and valid marriage with the relative (Wing v. Taylor, 1861, 2 Sw. & Tr. 278).

The Deceased Wife's Sister Marriage Act, 1907, 7 Edw. VII. c. 47, has rendered a marriage with a man's deceased wife's sister no longer either void or voidable.

A change in the law and practice has also been effected by the Matrimonial Causes Act, 1907, 7 Edw. VII. c. 12, which came into operation on August 9, 1907, and which, shortly stated, extends the powers of the Court in relation to maintenance and alimony, and, for all practical purposes appears to place female petitioners in nullity suits upon the same footing as female petitioners in suits for dissolution of marriage or judicial separation, in regard to applications for orders or interim orders for payment of money. It is, as yet, too early to appreciate fully how the new features of the Act will work out in actual practice.

The jurisdiction of the Ecclesiastical Courts in suits of nullity of marriage was transferred to the Court for Divorce and Matrimonial Causes (now the Probate, Divorce, and Admiralty Division of the High Court of Justice in England) by the Matrimonial Causes Act, 1857, 20 & 21 Vict. c. 85, s. 6. As to the numerous decided cases on nullity, dependent on questions of domicile and jurisdiction, see DOMICIL; FOREIGN DIVORCE; MARRIAGE. It may, however, be worthy of note that, whereas the comparatively recent and most important judgment of the Privy Council in Le Mesurier v. Le Mesurier, [1895] App. Cas. 517; 64 L. J. P. C. 97; 72 L. T. 873; 11 W. R. 527, overruled practically, if not technically, the decision of the majority of the Court of Appeal in Niboyet v. Niboyet, 39 L. T. 486; 4 P. D. 1, which had established, in a case of divorce, the principle of a "matrimonial home," as distinguished from "domicile" (see Vol. VI., at p. 163), it does not, in terms, mention nullity of marriage. The passage of the judgment of the Privy Council to which we particularly desire to draw attention, is as follows:

The main reason assigned for their decision by the majority was that, before the Act of 1857 became law, the petitioner (Madame Niboyet) would have been entitled to sue her husband in the Bishop's Court, although he was not domiciled in England, and to ask either for restitution of conjugal rights, or for a divorce à mensa et thoro (equivalent to the present judicial separation), and, in either case, for proper alimony; and consequently that, after the Act of 1857 passed, jurisdiction in divorce might be exercised in the same circumstances. There appears to their Lordships to be an obvious fallacy in that reasoning. It is not doubtful that there may be residence, without domicile, sufficient to sustain a suit for restitution of conjugal

rights, for separation, or for aliment; but it does not follow that such residence must also give jurisdiction to dissolve the marriage.

It would seem, therefore, that-paraphrasing the language of the Privy Council and applying it to nullity of marriage, which finds no mention, one way or the other, in the passage quoted-it does not follow that such residence-matrimonial residence, that is, short of domicile must also give jurisdiction to annul the marriage. The passage of the judgment concludes thus: "Their Lordships cannot construe sec. 27 of the Act of 1857 as giving the English Court jurisdiction in all cases where any other matrimonial suit would previously have been entertained by the Bishop's Court." Whether the words we have italicised were intended to include nullity of marriage, or only those other suits mentioned in the passage, is an open question. The judgment of the Privy Council not being binding upon the Court of Appeal, Niboyet v. Niboyet is not technically overruled; though, for all practical purposes, it can no longer be relied upon in support of the matrimonial home" theory in suits for divorce. Since the decision in Le Mesurier's Case, ubi sup., it has been held in the Divorce Court, that matrimonial residence within the jurisdiction is sufficient to give the Court power to entertain suits for nullity of marriage (Roberts (falsely called Brennan) v. Brennan, [1902] P. 143).

To render a marriage legal, according to English law, whether solemnised in England or in any other part of the world, it is necessary that it should be entered into by single persons (which, of course, includes widowers, widows, and legally divorced persons-excepting from consideration, for the present purpose, any question as to the validity of divorces or the remarriage of divorcees in the eye of ecclesiastical law), not being within the prohibited degrees of consanguinity or affinity, both of whom are of consenting and sound mind (as to insanity in relation to marriage, see article LUNACY, Vol. VIII., at p. 446), and able to perform the duties of matrimony (Browne and Powles on Divorce, 1905, 7th ed., 91; and see also Dicey on Domicile, 1879 ed., p. 15). Consent being, therefore, one of the necessary ingredients to the contracting of a valid marriage, on the principle that, according to the laws of this country, consensus non concubitus facit matrimonium, instances occur, now and again, of petitions for nullity on the ground of want of consent, or duress: Miss Turner's Case, H. L. Jour., 1827, 308; Wakefield's Case, 69 Ann. Register, 316; Scott v. Sebright, 1886, 12 P. D. 21; 57 L. T. 421; 56 L. J. 11 P. & M.; Crane (otherwise Cooper) v. Crane, [1891] P. 369; 61 L. J. 35 P. & M.; 40 W. R. 127; Clark (falsely called Stier) v. Stier, [1896] P. 1; 73 L. T. 632; 65 L. J. 13 P. & M.; 11 R. 668; Bartlett (falsely called Rice) v. Rice, [1895] 72 L. T. 122; or on the ground of fraud: Portsmouth v. Portsmouth, 1828, 1 Hag. Ec. 355; Moss v. Moss (otherwise Archer), [1897] P. 263; 66 L. J. 154 P. & M.; 77 L. T. 220. The judgment of the president (Sir F. H. Jeune) in this lastmentioned case contains an elaborate review of the law on this subject.

Decrees of nullity on the ground of undue publication of banns are extremely rare; and for the law on this branch of the subject, as well as for a detailed exposition of the law and practice in regard to nullity of marriage, the reader is referred to the standard text-books, amongst the foremost of which we may mention Browne and Powles' Law of Divorce, 7th ed. (1905); Bishop on the Law of Marriage and Divorce; and Eversley, Law of Domestic Relations, 3rd ed. (1906).

Impotence-as distinct from mere sterility-is one of the grounds upon which a de facto marriage may be annulled. A man is not allowed, however, to plead his own natural impotence as a ground for asking that his de facto marriage may be annulled (Norton v. Seton, 1819, 3 Phillim. 147). Moreover, the suit must be brought in the lifetime of both parties, and the validity of a marriage cannot be impeached, on the ground of impotence, after the death of one of them (4. v. B. and Another, 1868, L. R. 1 P. & D. 559). In that case, Sir J. P. Wilde held that the next-of-kin of a married woman were not at liberty to question her husband's right to administer her estate, on the alleged ground that the marriage was a nullity by reason of the impotence of the husband. Similarly, it is not open to third persons to institute such a suit, though both the parties be still alive. The old rule which prevailed in the Ecclesiastical Courts, requiring triennial cohabitation prior to the institution of a suit for nullity on the ground of impotence, need no longer be considered, for, so far as it was at any time recognised and acted upon in the Ecclesiastical Courts of this country, it was abrogated in 1871, when Lord Penzance decided that a decree should be pronounced in a case where the parties to a de facto marriage had cohabited for a period slightly short of three years, the man's capacity and desire to consummate the marriage being unquestioned, and the bona fides of the suit, and the practical impossibility of consummating the marriage in consequence of the condition of the woman, although there was no structural defect, being proved to the satisfaction of the Court (G. v. G., 1871, L. R. 2 P. & D. 287). The first matter the Court looks to is as to the bona fides of the case: once satisfied as to that, no special period of cohabitation is now required. In order to raise the question of insincerity in a suit for nullity, it is necessary that the answer should specifically allege it. Adultery may be alleged, and, if established, is material matter for consideration on the question of the petitioner's insincerity. The petitioner is, however, not bound to answer questions tending to establish adultery: so held, by Bargrave Deane, J., in S. (otherwise G.) v. G., [1907] P. 224. [But see M. v. D., 1885, 10 P. D. 175, which the judge declined to follow.] The ground for the interference of the Court, in cases of impotence, is the practical impossibility of consummating the marriage. Whether the theory of impotence quoad hanc-impotence, that is, on the part of a particular man in regard to a particular womanis founded on physiological fact, we have not here space to discuss; but we believe that, in regard to certain animals, physiologists are said to have noted instances of this nature. Conversely, in the case of a woman, though well-formed and capable of sexual intercourse, there are authorities which show such repugnance to intercourse with a particular man as to amount to a practical impossibility of consummation. Perhaps the strongest instance, and one of the most recent, is to be found in the case of F. v. P. (falsely called F), 1896, 75 L. T. 192. In that case, the petitioner was, at the time of the marriage in question, a widower with children, and the respondent was a widow, but without children. Upon medical inspection the petitioner was found virile, and the respondent exhibited no structural impediment nor signs of virginity. The period of cohabitation was less than six months, during which time the petitioner used every means, short of brute force, to consummate the marriage while sleeping with the respondent, but she habitually wrapped her night-clothes and the bedding around her, and absolutely refused to allow sexual intercourse. The president (Sir Francis Jeune),

being satisfied that intercourse had not taken place, drew the inference from the facts, that the respondent's refusal to allow the marriage to be consummated arose from some latent incapacity on her part, and pronounced a decree of nullity. [See also W. v. S. (otherwise W.), 1905, P. 231.] The principle laid down by the Court in F. v. P., ubi sup., in the case of a female respondent, has since been followed in and extended to the case of a male respondent (B. (otherwise H.) v. B., [1901] P. 39).

Restrictions upon, and prohibitions against, marriage are adjudicated upon according to the lex loci contractus. No nation is entitled to call upon another nation, within whose territory a marriage has been celebrated, to surrender its own laws in order that effect may be given to a foreign decree annulling such marriage, and based upon restrictions and prohibitions unknown to the lex loci contractus (see head-note to the report of Ogden v. Ogden (otherwise Philip), [1907] P. 107). The decision of Bargrave Deane, J., in that case was affirmed on appeal ([1908] P. 46). The case arose out of a marriage in England, between an Englishwoman and a Frenchman, but space does not permit of a discussion of the complicated facts and law, which, moreover, may yet be destined to reach the House of Lords.

Other cases and points will be found mentioned in Browne and Powles on Divorce, 7th ed. (1905); and Eversley's Law of Domestic Relations, 3rd ed. (1906); and see MEDICAL JURISPRUDENCE, ante, p. 159.

Nullius filius.-See BASTARD.

Nullum tempus aut locus occurrit regi.-If the King, says Lord Coke, hath a villein who purchases land and alien it before the King enter, yet the King may enter into whose hands soever the land shall come; or if the villein buyeth goods and sell them before that the King seizeth them, yet the King may seize these goods in whose hands soever they be; because no time or place affects the King (see Co. Litt. 119a; 2 Inst. 273). The rule is based upon the principle that the Sovereign can do no wrong, and therefore laches or negligence cannot be pleaded against him. Wherefore, prima facie, civil claims by the Crown receive no prejudice by lapse of time, and criminal prosecutions for felonies and misdemeanors, which are always instituted in the Sovereign's name, can be commenced at any time after the offence. Thus, if a bill of exchange has been seized under an extent before it has become due, and the Crown's officer have neglected to duly present it or notify its dishonour, nevertheless the drawer or indorsers will not be discharged.

Of necessity, however, various exceptions to the rule have been recognised both at common law and by statute. And, first, a good title may be made by a subject to TREASURE TROVE, WAIFS, ESTRAYS, and other things which may be seized without matter of record by prescription even against the King. Secondly, if the subject's right has determined before the Sovereign claims, the latter must fail for want of exertion in due time, as, for example, where land belonging to a tenant for life has been forfeited, but he dies before the forfeiture is enforced; a result which must also happen when the subject's right is limited in point of time, as, for example, when the Sovereign succeeds to the right to a next presentation, but does not exercise it, and the patron's clerk dies

incumbent, or is canonically deprived, the Crown will not be allowed to claim a second or other subsequent one in lieu thereof. Thirdly, the right of the Crown must sometimes be established by legal proceedings before it can be fully exercised, as, for example, under the 13 Rich. II. st. 1, c. 1. And, fourthly, by various statutes the title of the Crown will be defeated unless exerted within a specified number of years. Thus the 21 James I. c. 2 (repealed S. L. R., 1863) allowed sixty years' possession prior to February 19, 1623, the beginning of the then session of Parliament, of manors, etc., to disable the Sovereign from claiming them, an Act which was followed by the 9 Geo. III. c. 16, which fixed a like period prior to the commencement of the suit for recovery of the estate, this last Act being in turn amended by the 24 & 25 Vict. c. 62 (see A.-G. for British Honduras v. Bristowe, 1880, L. R. 6 App. Cas. 143). But the acts relied on as showing adverse possession must be acts of ownership and not of trespass not acquiesced in by the Crown (Doe d. William ÏV. v. Roberts, 1844, 13 Mee. & W. 520; 67 R. R. 714), though, if the Crown have dedicated a road to the public, it will be bound by long acquiescence in the public user of it (R. v. East Mark, 1848, 11 Q. B. 877, 882; 75 R. R. 653). Other statutes in this connection are:

(i.) The 31 Eliz. c. 5, which enacts that indictments or informations upon any statute penal whereby the forfeiture is limited to the Sovereign must, unless such statute otherwise provides, be brought within two years, and that the same, when the forfeiture is limited to the Sovereign and prosecutor, must be brought within one year (but see 11 & 12 Vict. c. 43, s. 36).

(ii.) The 21 James I. c. 14, which contains special directions as to informations of intrusion when the Crown has been out of possession for twenty years. Occupation against the Crown for any period less than the sixty years required by the Nullum Tempus Act is of no avail against the title and legal possession of the Crown, and still less against its grantee in actual possession. The Act 21 Jac. I. c. 14, only regulates procedure, and its effect is that if an information of intrusion is filed, and the Crown has been out of possession for twenty years, the defendant is allowed to retain possession till the Crown has established its title. Where no information has been filed, there is nothing to prevent the Crown or its grantee from making a peaceable entry and then holding possession by virtue of title (Emmerson v. Maddison, [1906] A. C. 569).

(iii.) The 7 & 8 Will. III. c. 3, sec. 5 of which enacts that indictments for treason (other than attempts to assassinate the Sovereign) must be prosecuted within three years of the act of treason being committed.

(iv.) The 32 Geo. III. c. 58 (repealed S. L. R., 1887), which barred the Crown in informations for usurping corporate offices or franchises after a lapse of six years.

(v.) The 60 Geo. III. and 1 Geo. IV. c. 1, sec. 7 of which requires prosecutions for training to arms and illegal drilling to be instituted within six months.

(vi.) The 9 Geo. IV. c. 69, sec. 4 of which compels night poaching offences to be prosecuted within twelve months.

(vii.) The 7 Will. Iv. and 1 Vict. c. 78 (repealed by 45 & 46 Vict. c. 50. s. 5), sec. 23 of which enacted that applications for quo warranto under the Act had to be made within one year from the election or disqualification of the official.

VOL. X.

7