Acquiescence and mora.-Unless the marriage appears to have been challenged as soon as the error or fraud has been discovered, or the constraint removed, consent will be presumed to have been subsequently given, and the action for nullity will be barred. In England, where a ceremony is essential, and consent must accompany prescribed rites, it may not be clear that supervening consent can cure an initial defect of this kind. But in Scotland, where mutual consent, however expressed, is all that the law requires, it is obvious that matrimonial consent will readily be presumed if the marriage is not promptly challenged.1

Fraud on Persons of adult Age.-There does not seem to be any case in the books in which a marriage has been set aside on the ground that an adult man or woman of average intelligence has been induced by fraud to enter into it. The case of Blair v. Fairie, which Lord Fraser quotes as an illustration, is not an instance of fraud inducing consent, but

man being trapped into pretending to consent. A woman takes a man into a secluded place, and on his seeking to have copula, she says he must promise marriage. He does so, never meaning to perform the promise, as she well knows. Copula follows. The woman has had persons lying in ambush to hear the promise. Such a case, if it arose, would have to be proved by the defender's oath, and the Court might well draw the inference that he never consented to marriage, and she did not yield on the faith of his promise. No form of proposition is so dangerous as a universal negative, and I will not say that no case of fraud practised on an adult person of fair intelligence, not drugged or intoxicated, would be sustained by the Court as a ground for setting aside a marriage. But it is certainly not easy to figure such a case. What more gross fraud is well conceivable than this? A man marries a woman whom he has every reason to believe virtuous, and discovers that she is advanced in pregnancy by another man. Yet it may be assumed to be law in Scotland that he cannot have the marriage annulled on this ground.

1 Stair, i. 9, 9; Crawley, H. and W., p. 9; Bishop, Ed. 1891, §§ 545 and 624; Shelford, Mar. and Div. 197; Poynter, Mar. and Div. 156;

see also Crump v. Morgan, 1843, 40 Amer. Decis. 447.

2 Fr. i. 461.

Ill.—Wife sues in England for restitution of conjugal rights. Husband pleads that she was pregnant when he married her, and that he had been induced to marry her on her false representation that he had seduced her. Plea held irrelevant.1 Lord Fraser treats the point as still open in Scotland, whether concealment of pregnancy by the woman is such fraud as will enable the man who married her, believing her virgin, to have the marriage set aside. There is American authority in favour of the affirmative.2 The ground is recognised by the Austrian code, and by the Protestant ecclesiastical law in Germany. There is, notwithstanding, small probability that such a plea would be sustained in our Courts. It does not appear to have been raised either as a ground for annulling the marriage, or in an action of divorce of the wife by the husband as a defence justifying nonadherence.

Fraud committed on person weak from extreme youth, want of natural intelligence, or other cause.

Ill. A schoolmaster persuades one of his pupils, a girl just over twelve, entitled to £2500, to go through a ceremony of marriage. He has her dressed "as a woman with highheeled shoes, and a toupé and ornaments on her head," to make the minister think her older. Her mother discovering the affair the same day, carries her off before consummation. Allan, the schoolmaster, raises declarator. Defence of no

valid consent sustained.3

Ill.—A nobleman of decidedly weak intellect, though not to the point of imbecility, is drawn into marrying the daughter of his solicitor. The solicitor, who was also the Earl's trustee, had great ascendancy over him. Marriage set aside.*

A very strong case must be made out. The following illustrations may be given of circumstances in which the Court has declined to set aside the marriage.

1 Per Lord Penzance, Green v. G., 1869, 21 L.T., N.S. 401, and so held in America; see Foss v. F., 12 Allen 26, cited by Bishop, Ed. 1891, § 498.

2 Reynolds v. R., 3 Allen, 605, where, however, the man was only seventeen and the woman thirty; and see Bishop, Ed. 1891, § 485, seq.

3 Allan v. Young, 1773, Ferg. Con. Rep., p. 37.

4 Portsmouth v. P., 1828, 1 Hagg. E.C. 355; Wilkinson v. W., 1845, 4 N.C. 295; and see Turner v. Meyers, 1808, 1 Hagg. C.R. 414, where, however, the woman's only fraud was in marrying a man clearly insane.

Ill.-A man of twenty-one persuaded a girl of fifteen to go through a ceremony. She was of weak health in body and mind, and had suffered from infancy from St. Vitus's dance. He had made no proposal to her until the day before the marriage, and had already had the banns put up. After the ceremony she returned home to her parents, and there was no consummation. Marriage sustained.1

Ill.-A young lady, eighteen, possessed of £1000 a year, is living in the house of her guardian. His brother, a retired

butler of fifty-two, persuades her to marry him. No consummation. Five days after, she runs away. Marriage sustained.2

Cases of error, force, and fraud slide very much into one another. In the cases afterwards mentioned the element of force is more prominent.

Force and fear is a ground on which any contract in Scotland may be set aside. If it appear to the Court that consent to marriage was only given under the influence of terror caused by the violence or threats of any one, the marriage, if timeously challenged, will be set aside. Much will depend on the age, position, and education of the parties. A weak and imaginative girl may be terrified by threats which a woman of robust mind would regard with contempt. The rule of the canonists that the degree of force used must be such as might have coerced a person of average strength of will-“virum constantem "cannot be said to be now a practical guide.

If the Court is satisfied that the one will was unduly dominated by the other in such a way as to induce an unwilling consent, it will not decline to grant a remedy on the ground that a person of cooler temper and firmer purpose would not in the circumstances have yielded. Consent to make a marriage valid must be free and spontaneous. In cases of the kind under discussion there is consent indeed, but it is the consent which chooses unwillingly the less of two evils. Coacta voluntas, voluntas est; volui, quia coactus volui.

But it will not be a sufficient ground for annulling a marriage that a parent or guardian has used considerable pressure to induce consent to it.

There must be vis atrox

and F., N.S. 48, and cases cit.

3 See dictum by Butt, J., in Scott v. Sebright, 1886, 12 P.D., at p. 24.

i.e., threats or violence, and the threats must be to do something adversus bonos mores. To give an instance from Pothier. A man who has ravished a woman marries her to

escape arrest with which she threatens him. He cannot plead nullity on the head of force and fear, for the woman would have been quite entitled to have him arrested. There was nothing in her threat which was adversus bonos mores.

The amount of force or fraud necessary to be proved in order to have a marriage set aside varies inversely with the degree of capacity of the party on whom such force or fraud is exercised. If a person possesses such a slight amount of intelligence as to approach imbecility, very little evidence of coercion or deceit would be sufficient.

Sir John Nicholl states the law thus in the leading case of the Countess of Portsmouth v. the Earl2:-"When a fact of marriage has been regularly solemnised, the presumption is in its favour; but then it must be solemnised between parties competent to contract, capable of entering into that most important engagement, the very essence of which is consent; and without soundness there can be no legal consent-none binding in law -insanity vitiates all acts. Nor am I prepared to doubt but that considerable weakness of mind circumvented by proportionate fraud will vitiate the fact of marriage." But when the person whose capacity is doubtful has not challenged the marriage, the Court will require distinct evidence of want of

consent.

Ill.—In an action for payment of a legacy, it was pleaded in defence that the plaintiff was illegitimate on the ground that his mother was of weak intellect and of unsound mind, and wholly incapable of entering into or making a contract of marriage or any other contract. It was proved that she was deaf and dumb from birth. The facts that she had never learnt to talk on her fingers, and did not know the value of money were relied on as showing great dulness of intellect. But Sir W. Page Wood found this insufficient to rebut the presumption that she had duly consented.3

1 Pothier, Traité Con. Mar., § 316. 2 1828, 1 Hagg. E.R., at p. 359. 3 Harrod v. H., 1854, 1 K. and J., 4, where there are some valuable

remarks as to capacity in general; see Stevenson v. S., March, 1893 (Lord Kyllachy), not yet reported.

With regard to the kind of threats which have afforded evidence of force, the cases following may be referred to.

Ill.—The guardian of a girl, twelve and a-half years old, persuades her to elope with him from school and go to France. At Boulogne she wishes to return, but he said if she did he would kill himself. Ceremonies of marriage are gone through at Ypres, and at Ahrensburgh in Denmark. It does not appear from the report if there was consummation. Marriage

set aside.1

A comparison of the two most recent cases in England illustrates the amount of evidence which will be required.

Ill.-A, who was engaged to B, a young lady, persuaded her to accept a number of bills for him. She becomes anxious to break off the engagement. He does not meet the bills, and B is threatened with bankruptcy proceedings. Her mother and other relations are ignorant of her difficulties. A informs her that he cannot extricate her unless she marries bim. He also says that if she does not marry him he will "accuse her to her mother, and in every drawing-room in London, of having been seduced by him." She is taken unwittingly to a registrar's office, and there goes through a form of marriage. There was no consummation. Marriage set aside.

Ill.-A, twenty, and B, twenty-four, a young lady, are cousins. A has proposed marriage to B and been rejected. He asks her one day to go with him to the afternoon service at St. Paul's. He takes her to another church, and on arriving there says: "You must come into this church and marry me, or I will blow out my brains, and you will be responsible." They enter, everything has been arranged by A for the ceremony at that time, and B goes through it. He takes her to her mother's afterwards. There is no consummation, and they Marriage sustained.

do not see each other again.

1 Harford v. Morris, 1776, 2 Hagg. .C.R. 423.

3

2 Scott v. Sebright, 1886, 12 P.D. 21. 3 Cooper v. Crane, 1891, P. 369.