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but the son being of age, and there being no means of making the father guardian, or curator ad litem, the Court was of opinion, that the suit could not proceed in that form.-It has therefore since assumed its present shape.

It is, I conceive, perfectly clear in law, that a party may come forward to maintain his own past incapacity, and also that a defect of incapacity_invalidates the contract of marriage, as well as any other contract. It is true, that there are some obscure dicta, in the earlier commentators on the law, [1st Phillimore's Rep. p. 90. 1 Eng. Eccl. Rep. 47.] 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, Morison v. Stewart, falsely called Morison, 1745, when the effect of all these dicta was brought before the Court, and it has been since acted upon in various cases (Cloudesley v. Evans, Prerog. 1763. Parker v. Parker, 1757,) in this Court; which it is unnecessary to review. I take it to be as clear a principle of law therefore, at this day, as any can be, and as incapable of being affected by any general dicta, which may be found

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 be attorney or procurator for him, but by his own appointment.

On what ground, then, is the interference of the father to be supported? An analogy to other cases has been relied on, where a concursus actionum is allowed. In cases of minority there is a concurrent right, the law gives the father a right of consent, and to the minor a right of protection under his father's judgment. Cases of consanguinity have been also mentioned; but in those the public has an interest-to abate a scandal. The criminal suit is open to every one, the civil suit to every one showing an interest; but, in that respect, the father is by no means privileged; as he must show a specific interest as well as any other person-in that case there is a reason for the interference of others, as the marriage can only be affected inter vivos; for if the death of either of the contracted parties takes place, the marriage cannot be set aside-here there will be no such consequence, as the remedy may be pursued at any time, only with a little less convenience perhaps than when the whole matter is recent.-To this asserted convenience of the parties, many considerations of inconvenience might be opposed.

It may indeed be questioned what degree of evidence, that could be now produced, would satisfy the Court that the act was the act of an insane moment, when the man, who as I have before observed, is not alleged to be insane, and who must therefore be presumed to be himself, has taken no step to annul the act, but rather adheres to it. In cases of most inveterate malady, there are lucid intervals, on which legal acts may be founded. The case of Cartwright v. Cartwright, Sanchez, lib. 1. disp. 8. num. 15. et seq., was a strong case of this kind, in which the will was made in one of these lucid intervals, and was established.-There, indeed, the sanity of the moment was, in a great measure, to be inferred from the internal character of the wisdom of the act itself. This act undoubtedly has no such character of wisdom, being the act of a man connecting himself, in marriage, with a common prostitute, without any rational prospect of happiness. But it will not be conclusive, certainly, against the sanity of the act, that it was an unwise act. The man, in the best exercise of his reason, might not be a wise man; and the question here is as to the sanity of the act, not the wisdom of the party; and I am of opinion, that no evidence would be sufficient to induce the Court to pronounce against the sanity of an act, to which the man himself, not disqualified by proof of insanity, adheres, and from which he does not himself pray to be relieved. On the whole, therefore, I think the father has not a persona standi before the Court, and that his suit must be dismissed.

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in writers of earlier periods, as any fundamental maxim, on which the Courts are in the habit of proceeding.

When a commission of lunacy has been taken out, the conclusion against the marriage will be founded on that statute, 15 G. 2. c. 30; where there has been no such commission, the matter is to be established on evidence. The statute has made provisions against such marriages, even in lucid intervals, till the commission has been superseded. In other cases, the Court will require it to be shown by strong evidence, that the marriage was clearly had in a lucid interval, if it is first found that the person was generally insane.

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Madness is a state of mind not easily reducible to correct definition, since it is the disorder of that faculty with which we are little acquainted; for all the study of mankind has made but a very moderate progress in investigating the texture of the mind, even in a sound state. disease, where it has pleased the Almighty to envelope the subject matter in the darkness of disease, it will probably always continue so; but the effects of this disordered state are pretty well known. We learn from experience and observation all that we can know, and we see that madness may subsist in various degrees, sometimes slight, as partaking rather of disposition or humour, which will not incapacitate a man from managing his own affairs, or making a valid contract. It must be something more than this, something which, if there be any test, is held, by the common judgment of mankind, to affect his general fitness to be trusted with the management of himself and his own concerns. The degree of proof must be still stronger, when a person brings a suit on allegation of his own incapacity, by exposing to view the changes of his mind. -Under these observations, I shall proceed to examine the evidence, which, in substance, I think I may now say, is sufficient to establish that this gentleman was a person liable to accesses of lunacy.

He appears to have lived with his father, who was a grazier in Lincolnshire, and, about thirteen or fourteen years ago, to have been visited with insanity, which became more frequent in its visitations, more especially in the spring and autumn; which is not unusual. The general fact is fully established by the witnesses, particularly those of his own. family, his father, his two sisters, and a brother, who was a medical person, and attended him in that capacity at different times. His father did not trust him with any business; he was at liberty, but entirely unfit to be employed. His peculiar humour of madness was, that of passion for a military life, for which he had no disposition at other times; but, at the periodical returns of his malady, he exhibited such flights of heroism, and such general expressions of ideas on that subject, as strongly marked a disordered imagination. His father once offered to procure for him a commission in the army, which he declined, and said, that he would prefer to follow his father's business.

This is the description of several witness, who have known him from his infancy, and which brings down this account of him till 1803. It is sufficient, therefore, I think, to throw on the other party, who sets up his act as the foundation of any right, the burthen of proving that it was done at the time of sanity; more especially, as it appears that it was done in September, at one of those periods of the year, when he was habitually most subject to his disorder. This brings me to examine the

facts attending the marriage. It appears that his father, (a) who has been produced as a witness, had given him leave to go to a show of cattle, in order to amuse him; that he took that opportunity of eloping to town without money and without preparation; that he told his friend he was going into the neighbourhood of Nottingham, and should return; but he did not: he went to Newark, and on to London, without any other purpose than that of indulging the military notions, which he usually entertained in his fits of insanity. He is described, by one of the passengers in the same carriage, to have been giddy and flighty, very communicative about his family, as persons of property, but frequently contradicting himself; speaking to every person whom he met, and particularly to women, and calling to any person that he saw at the window. This witness deposes, that at first he supposed him only to be wild and thoughtless, but afterwards he considered him to be deranged. This is a description of very extravagant behaviour. On his coming to town, on the 9th of September, he met this lady for the first time, as it is admitted by Mrs. Turner in her answers, who was then Sarah Meyers, but passing by the name of Mrs. Lee. He first became acquainted with this woman, by accidentally meeting her in the street, somewhere near one of the Theatres Royal.

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Her servant, Susannah Squire, says, "that, on Friday, the 9th of September, he came with her mistress, who lived in Ann Street East, and that almost immediately she heard him say to her mistress-' he could not live without her.' That her mistress then proposed that she should go to church with them,' and on the Monday following Mr. Turner obtained a licence, and on Wednesday they were married." Here is an offer of marriage at once to a perfect stranger.-One has heard of the extravagant effects of love at first sight. This is conduct, which, if it stood alone, might be only an act of a very weak person, and might not be sufficient to proclaim a man absolutely mad or lunatic: it is certainly, however, symptomatic; and if fortified by other acts, may lead to a different conclusion.

The next witness, on whose evidence I shall observe, is Mr. Parry, a banker in Birchin Lane. He says, "that, on the 9th of September, Mr. Turner called on him, and obtained some money, 157. on the very morning of his coming to town. On the 10th, he came again dressed in an officer's regimentals, and told him that he had come to town to purchase regimentals for a troop of horse, on which he had expended 400l. and wanted more money. That not suspecting him to be deranged, he gave him 50%. That his interview was short, and he cannot take on himself to say that he was insane." Mr. Parry, junior, speaks nearly to the same effect-" that he did not think him mad; that he was not acquainted with the manner in which he was usually affected with military ideas; and though it might surprise him, it did not occur to him that such behavior proceeded from madness. The next day he called

(a) Consist. 27th June 1817.-In the case of Sumerfield v. Mackintire, as to the competency of a father, to be a witness, who had originally instituted proceedings (to annul the marriage of his son) which were continued by the son, on his coming of age: An objection to the competency of the father to be a witness, was over-ruled by the Court, observing, "that the son's intervention in the suit was a supercession of the father, and that by taking up the suit, where he found it, he had adopted and sanctioned all that had been done. For the sake of greater regularity however, the conclusion of the cause was rescinded, to enable the father formally to withdraw himself from the suit, and then, with his wife, to be repeated to their depositions."

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again, and said, he was going to be introduced to the King; but still he did not think him mad.' This opinion of the witness does not weigh much with the Court, knowing, that insane persons are frequently affected with such notions of connection with great personages, when no such connection exists.

It is alleged, on the part of Mrs. Turner, "that she was the cause of this inclination, on his discovering that she was particularly fond of the military profession, from seeing the locket of a military officer in her possession; and that he affected their habits from a wish to recommend himself to her." But this could not have been the cause of them, since they appeared in his first conversation with Parry, before he had seen her, and with his fellow-traveller on the road. Mr. Parry, junior, says, that the next day, a young woman came to enquire about his character, with a card of reference of a description very wild:-" Royal Army of France, Captain Jonathan Turner, of the Royal Guards.

Mr. Nicholls also gives an account of a visit to him, "that he dined with him, and talked of orders for military clothing, and took leave very abruptly; that, two or three days afterwards, he dined with him again in a cavalry uniform, and said, that he had orders to provide clothing for the whole regiment, and that he wished to be recommended to an army tailor; that he got up in a hurry, and in a low voice said, that he had been a lucky fellow, as he had met with a young lady of fortune, who had fallen in love with him, and that he was going to be married to her; that he went away abruptly, and he then concluded that he was insane."

Oakley, the sister of the woman, says, "that on Monday he was very desirous to marry her sister; that he went for the licence, and was married; and that, during the ceremony, there was perfect propriety of behaviour; and that he was perfectly rational, and that it was his own free act." The Clergyman and the Clerk also depose to the propriety of his behaviour. Much stress, however, is not to be laid on that circumstance; as persons, in that state, will nevertheless often pursue a favourite purpose, with the composure and regularity of apparently sound minds. It is in the extravagance of the act itself, rather than in the manner of pursuing it, that the proof of madness is to be discovered. There is then a letter exhibited, which was written by him to a friend of his father, which has been called for by the wife, and has been produced; but it breathes madness in every line: it describes the lady as the daughter of an officer in the Prince of Hesse Cassel's regiment; and says, "that if his family renounce her, he had engaged to give him a commission in a regiment of dragoons; and that, as soon as he should receive their answer, he should take a captain's commission in the Prince of Conde's body guards," &c. The same disordered idea prevails throughout.

Other persons are examined on the part of the wife, who never saw much of him. There is the Hairdresser, who dressed his hair once or twice; and the Victualler, who supplied him with dinners; and a person discharged by the wife from debt; and others whose information is much too slight to weigh against the rest of the evidence, which so strongly proves the influence of disorder on his mind.

Mr. Leadbeater, the friend of his father, describes his conduct when he prevailed on him with difficulty to come to his house, till his father could arrive to take care of him. When the father comes, he is sepa

rated, but undoubtedly expresses a great affection for his wife. When he goes into the country, the same history proceeds. He was put under the care of Mr. Fawcit, who proves, that he was deranged for three weeks after, and that he was again, the next year, at the same period.

On this evidence, I am of opinion, that it is sufficiently proved that he was deranged at the time of the marriage, and that I am bound to pronounce the marriage null and void.

The Office of the Judge promoted by

BISHOP, H. M. Procurator General, v. STONE.-p. 424. Proceedings under the stat. 13th Eliz. c. 12. against a Clergyman, for preaching doctrines contrary to the articles of religion.-Deprivation.

COPE v. BURT, falsely calling herself COPE.-p. 434. Suit of nullity of marriage, by licence, by reason of the false description of names, not sustained.

CHAMBERS v. CHAMBERS.-p. 439.

Divorce by reason of adultery. Recrimination of cruelty, as alleged on the part of the wife, not sustained.

THIS was a suit of divorce, instituted by George Chambers Esq. against the Honourable Jane Chambers, his wife, by reason of adultery. JUDGMENT.

Sir WILLIAM SCOTT.

The citation in this cause issued in Michaelmas Term 1804, against the Honourable Jane Chambers for adultery; to which no appearance was given till Hilary Term 1805, after excommunication. A marriage had taken place in 1784, at Gretna Green; and the consent of parents being afterwards obtained, the parties were married again in Yorkshire for confirmation of the former marriage: they cohabited till 1799; but not without occasional disagreements and separations. In 1798, the wife absented herself from her husband, and took refuge with her brother, Lord Rodney; articles of permanent separation were entered into; which have not been exhibited; but described to the Court as providing, that, "on the first instance of ill treatment after her return, of which she was to be the sole judge, she should be at liberty to separate; taking with her their two children, without forfeiting an annuity, which had been left her by Sir William Chambers, the father of her husband, on condition that she should be constantly living with him."

In 1799 fresh feuds arose: she went away, as it is said, irrevocably; but consented to return to his house for the purpose of taking care of the children, during his absence on military service; and, as she says, with a condition that she should have previous notice of his return. This, however, is denied in his answers on oath. The husband returned

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