Where guardians are non compos, &c. by the Court of Chancery, if any or one of them shall have authority to give consent to the marriage of such party; and such consent is hereby required for the marriage of such person so under age, unless there shall be no person authorised to give such consent. By the 17th section it is enacted, "That in case the father or fathers of the parties to be married, or of one of them, shall be non compos mentis, or the guardian or guardians, mother or mothers, or any of them, whose consent is made necessary to the marriage, shall be non compos mentis, or beyond the seas, or shall unreasonably or from undue motive withhold consent, an application may be made to the Court of Chancery by petition in a summary way; and if the proposed marriage shall appear proper, a judicial declaration to that effect may be made, which shall be as effectual as if a consent had been duly had from guardians." It has been decided that this clause does not apply to the case of a father who is beyond the seas, or unreasonably withholds his consent, but only to a case in which he is non compos mentis (v). In Cook v. Fryer (x), on the proposed marriage of an infant daughter of one who was non compos mentis, a petition was presented to the Lord Chancellor, under this section, for his consent, in order to obtain a license. The petition was referred to the Master, and the intended husband by affidavit stated, that he had agreed to make a certain settlement. The Master reported in favour of the marriage; and the report was confirmed. The parties did not avail themselves of the consent of the Lord Chancellor; but shortly afterwards married under the 6 & 7 Will. 4, c. 85, without license. The settlement mentioned in the affidavit was not made; the parties having entered into articles for a different settlement. It was held by (x) I Hare, 498. (v) Exp. J. C., 3 Myl. & Cr. 471. Vice Chancellor Wigram, that the proposal laid before the Master amounted to a contract which, in the absence of any settlement properly substituted for it, the Court would enforce. The first inquiry, therefore, in every case must be whether the parties when they intermarried were of lawful age, and, if not of lawful age, whether the requisite consents were obtained; because although the want of such consent will not invalidate the marriage, it will produce a consequence which some may think a greater calamity; for by the 23rd section of the 4 Geo. 4, c. 76, it is enacted— That, if any marriage by license shall be procured by a party to such marriage, to be solemnised between persons one or both of whom shall be under age (not being a widower or widow), by means of such party falsely swearing; or if any marriage by banns shall be procured by a party thereto to be solemnised between persons one or both of whom shall be under age (not being a widow or widower), such party knowing that such person under age had a parent or guardian then living, and that such marriage was had without the consent of such parent or guardian, and knowing that banns had not been duly published according to the provisions of this Act, and having knowingly caused or procured the undue publication of banns, then, and in every such case, it shall be lawful for His Majesty's Attorney General, by information in the nature of an English Bill in the Court of Chancery, at the relation of a parent or guardian of the minor, to sue for a forfeiture of all property which hath accrued or shall accrue to the party so offending, by virtue of such marriage and such Court shall have power to declare such forfeiture, and thereupon to direct that such property shall be secured for the benefit of the innocent party, or of the issue of the marriage, or of any of them, in such manner as the Court shall think fit. And if both the parties so contracting marriage shall in the judgment of the Court be guilty of such offence, it shall be lawful for the Court to settle and secure such property immediately, for the benefit of the issue of the marriage, subject to such provisions for the offending parties as the Court shall think reasonable, regard being had to the benefit of the issue of the marriage during the lives of their parents, and of the issue . of the parties respectively by any future marriage, or of the parties themselves, in case either of them shall survive the other. The clause, of which only an abridgment is here given, requires that before any information is filed in pursuance of it, the case be made out to the satisfaction of the Attorney or Solicitor General, upon oath (y). It has been decided (z), that where a husband incurs a forfeiture under this clause, the Court has no discretion to mitigate the penalty; but is bound to settle and secure all property present and future, of the wife, for the benefit of herself and the issue of the marriage. And that where the husband alone incurs a forfeiture, the Court has no authority to order any settlement of the wife's property on her issue by any subsequent marriage (a). The like proceedings may be resorted to, and the like consequences will arise, in the case of similar frauds upon Provisions of the Lord John Russell's Act, 6 & 7 Will. 4, c. 85; the 43rd section of which declares, that the operation, in this respect, under it, shall be the same as that which takes place under the 4 Geo. 4, c. 76. 6 & 7 Will. 4, c. 85, s. 43. (y) By the 24th section of the same Act, "all agreements, settlements, and deeds, entered into or executed upon marriages, in relation to which such informations as aforesaid shall be filed," are made void. (z) Attorney General v. Mullay, 4 Rus. 329. (a) Attorney General v. Mullay, 7 Beav. 351. In order to sustain an information, a false affidavit that a party is of full age is equivalent to a false affidavit that the necessary consent to a minor's marriage has been obtained. And it is not necessary to show that the minor was entitled at the time of the marriage to any property, either in possession, reversion, remainder, or expectancy, Attorney General v. Severne, 1 Coll. 313. A husband charged with procuring his marriage with a minor by falsely swearing that the consent of her parent had been given, cannot be compelled to discover the facts on an information, Attorney General v. Lucas, 2 Hare, 566. Part First. Showing the Operation of General Rules unaffected by Special Stipulation. HAVING shown how marriages may be completed, and having pointed out the Forfeitures of property to which the contracting parties in certain cases are subject, we now proceed to examine the Rights and Liabilities of Husband and Wife, standing upon general rules unaffected by special stipulation, in so far as the same are enforced at Law and in Equity. Now, to comprehend the nature C CHATTELS PER SONAL IN POS SESSION, &C. CHATTELS PER- and extent of those rights and liabilities, we must keep in SONAL IN POS- view (though, perhaps, not literally or implicitly adopt) SESSION, &c. Principle that are one person in law. Irreconcileable with coverture. a principle to be found in Blackstone and all the older husband and wife writers, namely, that by marriage the husband and wife become one person in law; a principle it must be owned not easily reconcileable with another principle which has universal application, that of coverture; whereby the wife is regarded as distinct from her husband, but so entirely under his power and control that she can do nothing of herself, but everything by his licence and authority. Coverture, which explains most of the cases better than unity, involves two ideas: on the one hand, the husband's supremacy (b); on the other, the wife's subjugation, both creating what are called her Disabilities; which, being, as Blackstone tells us, "intended for the wife's benefit," are gravely cited by him to prove how " great a favorite is the female sex of the Laws of England." Coverture more satisfactory than unity. Wife's disabilities. The husband's chattels personal in possession continue his own. The wife's become the husband's. The natural order of dealing with the subject will lead us to begin with those Rights which spring immediately from the fact of matrimony, without reference to subsequent acts done in the progress of the marriage state. And first, of chattels personal in possession. Those chattels personal in possession, and specific chattels in the hands of third parties, which before the marriage belonged to the husband, continue to belong to him exclusively, after the marriage; the communio bonorum being unknown to the marriage law of England. Those chattels personal in possession, on the other hand, belonging to the wife in her own right of whatever kind or denomination, which she is beneficially possessed of at the date of the contract, or which come to her during (b) Hence, perhaps, it is that in the old law books he is termed a Baron-his rights being in fact truly |