
    Richmond.
    Kelly v. Scott.
    (Absent Calell, P. and Brooke, J.)
    1. In prosecutions prior to the act of 1827, for marrying a deceased wife’s sister, or for marrying the husband of a deceased sister, the parties might appear by attorney; and upon a plea of “ guilty” by the attorney, judgment might be entered, declaring the marriage a nullity.
    2. A judgment declaring the marriage a nullity is valid, though it does not proceed to punish the parties, or to require them to enter into bonds, with condition to live separate.
    3. A marriage within the prohibited degrees having been declared null by a sentence of the Court, the husband has no interest in the property which was the wife’s at the time of the marriage; and his creditors cannot subject it to the payment of his debts.
    4. Slaves having been in the possession of the guardian of infant legatees for near five years after the death of the testator, they may file a bill to enjoin the sale of the slaves, under an execution against the person who is then- guardian, without making the personal representative of their testator a party, though it does not appear he ever assented to the legacy.
    5. The sale of slaves under an execution against a third person, will be enjoined at the suit of persons claiming them as their own, without any allegation of peculiar value in the slaves.
    
      This was a bill filed in October 1838, by the four children of Mary Jane Scott, all of whom were infants, by their next friend, against James W. Kelly, to enjoin the sale of certain slaves which had been taken in executi0a to satisfy a judgment which had been recovered by Kelly against Alexander B. Scott, in April' 1835. The bill charged that the slaves had been bequeathed to them by their mother; that Kelly had indemnified the sheriff; and without stating any special grounds for the interference of a Court of Equity, prayed for an injunction, and for general relief. The injunction was granted by the Circuit Court of Fauquier county, and was removed from thence to the county of Culpeper.
    
    
      Kelly answered the bill, and objected to the jurisdiction of the Court, on the ground that the complainants’ remedy was at law. He also insisted that the slaves were the property of Alexander B. Scott, or at least were not the property of the plaintiffs.
    The facts of the case are as follows: In 1819 Alexander B. Scott was married to Elizabeth Dixon, the daughter of Turner Dixon, of the county of Fauquier. She died in 1820, without issue. In December 1821, Scott and Mary Jane Dixon, the sister of Elizabeth, went from Virginia to the City of Washington in the District of Columbia, and were there married on the 29th of that month. At the time of the marriage Mary Jane Dixon was an infant; and previous thereto, she, with her intended husband, executed a marriage settlement, by which, with his assent, she conveyed to a trustee her property, real and personal, in trust for her separate use during her life. But though the deed recited, that after her death the whole estate, real and personal, was to enure to the benefit of the intended husband in fee, there was no limitation of the property after her death, declared in the deed, to him or to any other person. This deed was admitted to record in the clerk’s office of the County Court of Fauquier, upon the acknowledgment of Scott.
    
    
      The parties remained in Washington a short time „ after the marriage, from an apprehension ot a prosecution if they returned to Fauquier. They afterwards, however, returned, and lived upon a tract of land which she derived from her father, who was then dead.
    On the 13th of September 1824, the grand jury impanneled at that term of the Circuit Court of Fauquier county, indicted Alexander B. and Mary Jane Scott for their marriage and cohabiting as man and wife. And on the next day, they appeared by their attorney and pleaded guilty to the indictment; and the Court adjudged thereon, “that the said marriage of the defendants is, and it is by the Court declared to be, null and void.”
    Notwithstanding the sentence of the Court declaring their marriage null and void, the parties continued to live together as man and wife, until the death of Mary Jane Scott in 1833, and two at least of the plaintiffs were born after the sentence. But, though they continued thus to live together, and she called herself by his name, it appears that they did not represent themselves, nor were they considered by others, as man and wife. She dealt and was dealt with as a feme sole. The land and slaves which she held and owned before the marriage were considered by others and treated by herself as her own, upon which she obtaiued credit; whilst Scott was considered as insolvent. Scott, however, managed the property and sold the crops, though subject to her control.
    In April or May 1833, Mrs. Scott died, having made a will by which she gave her property, both real and personal, to her four children, to be equally divided between them; and she appointed Alexander B. Scott their guardian; and directed that he should keep all the property together as long as he thought proper, and she appointed her brother, Turner Dixon, her executor, though it does not appear that he qualified as such.. or that any administration was taken on the estate. Scott after her death qualified as guardian to the children, and as such had possession of and managed the property; and the slaves on which Kelly’s execution wag iev¡e¿ were on the land devised by Mrs. Scott to the complainants at the time of the levy; and were some of those derived by Mrs. Scott from her father, or their descendants.
    It was proved in the cause, that by the law of Maryland, which is the law of the City of Washington, the marriage of a deceased wife’s sister was legal when the marriage of these parties took place.
    When the cause came on to be heard, the Court below perpetuated the injunction; and Kelly thereupon applied to this Court for an appeal, which was allowed.
    
      Patton, for the appellant.
    I. Even if the case were with the plaintiffs on the merits, it is clear that they have shewn no title to the property, the sale of which is enjoined. If the marriage was void, ah initio, or has been avoided by any thing which has occurred since, so as to divest the husband’s rights, the property is in the personal representative of Mrs. Scott, who is neither plaintiff nor party; and no ■reason whatever is given why he is not made a party. The plaintiffs have no property in the slaves, and non constat they ever will have any title or interest in them.
    II. It is clearly shewn that the marriage, when it took place, was a valid, legal marriage, and vested in the husband all the marital rights, as well as those which accrued under the deed of marriage settlement. And it is submitted :
    1. That it is not competent for the Legislature, (even if it had attempted it,) by any law, directly or indirectly, to divest rights of property acquired by a contract of marriage lawfully entered into and consummated. Virginia may declare that persons married elsewhere, under circumstances condemned by her laws, shall not live together in her limits as man and wife ; that they shall be separated by her courts, and be fined if they come within her limits and live as man and wife. But it would be a very delicate and questionable jurisdiction for her to assume, that the marriage entered into in Maryland, and valid by the laws of Maryland, was no marriage, and all the rights vested by it, both as to persons and property, void ab initio; and to undertake to vacate them. Vid. on this point, Tuck. Com. B. 1, p. 99; Reeding v. Smith, 4 Eccl. R. 55; Putnam v. Putnam, 8 Pick. R. 433; Story on Conflict of Laws 115, 118.
    2. But no matter how this is, the Legislature of Virginia has not in this case assumed any such authority.
    By the 18th section of the act 1 Rev. Code 399, concerning marriages, it is provided, “ that if any persons resident within this State, for the purpose of eluding the provisions aforesaid, shall go out of the limits thereof and contract a marriage, within the said inhibited degrees,” &c., and “shall afterwards return and be resident within the State, cohabiting, &c., such persons may be proceeded against, separated and punished, in the same manner as if the marriage had been solemnized within the State.” By the 17th section, it is provided, that persons so unlawfully married (within the State) shall be separated by the definitive sentence or judgment of the Court, as “ hereinafter provided.” This subsequent provision, found now in the close of the 18th section, was originally a part of the 17th section, 12 Hen. Stat. 688, and applied exclusively to such marriages within the State; and the Court (the Chancery Court then, proceeding by bill) were authorized to declare the nullity of the marriage, and thereupon make a decree of separation and fine.
    By the terms of the first part of the 18th section, introduced long after, the Court has no authority to dissolve the marriage contract, or declare it void, but simply, in such cases, to decree a separation from bed and board, and to punish by fine. And more especially, when it appears that the marriage was legal and valid at the place where it was contracted.
    3. But even if the Court could, in the case of persons married out of the State, where the marriage was legal, annul the marriage, the utmost that it could do, and all that it has done in this case, is to declare the marriage dissolved; a decree of divorce, a vinculo, to operate in futuro, not retrospectively; to prevent marital rights accruing afterwards, not to divest those which had been previously acquired and become consummate.
    4. The judgment in this case is wholly irregular and void, even as to the parties themselves. The Court, in relation to this subject, is one of special and limited jurisdiction ; and in order that its judgment may be of any validity, it should appear on the face of the indictment, that such a case existed as authorized it to act. Now, it is an essential element of the Court’s jurisdiction to enquire into the validity of a marriage in Washington, and to prosecute the same as an offence, that they should have been both residents of the State, and should have gone out of the limits of the State, for the purpose of eluding the provisions of the act. The indictment contains no such charge; and plainly, there was no offence against the laws charged. The defendants, by attorney, confessed themselves guilty of the facts charged in the indictment; and these facts constituted no offence, and gave the Court no authority to declare the nullity of the marriage, decree separation, or to inflict punishment; and the Court was bound to have arrested judgment ex officio, without any motion to that effect, even if the plea had been put in by the parties themselves. Commonwealth v. Hearsey, 1 Mass. R. 137; Hawk. B. 2, ch. 31.
    
      5. Either because the parties were sensible of the de■feet in the indictment, or because it was a part of the scheme of collusion, the Court did not pronounce a de- . . . ’ . , . Jinitive sentence of separation or inflict any punishment, but stopped at the mere declaration of its opinion that the marriage was null. It failed to exercise the main and direct object of its jurisdiction, and did what was only incidental and collateral, and what was properly no part of its criminal jurisdiction. (Vid. Poyuter on Mar. and Div., 13 Law Lib. 121.) Indeed we are authorized to assume, that it was known that the Commonwealth could not have proved that the parties left the State for the purpose of eluding the provisions of the law.
    6. That the judgment in this case is a mere nullity by reason of the parties not having appeared in person, or been compelled to appear by process, or for aught that appears, having had any notice of the proceeding. If the proceeding is to be judged by the rules of practice in the Ecclesiastical Courts, the sentence is a nullity. (Vid. Dr. Golding ham's argument {not contradicted) in Morris if Webber's Case, 2 Leon. R. 172, and Fisher v. Lane, 3 Wils. R. 297.) For the same principle, in a somewhat analogous case, vid. Bourke v. Granberry, Gilm. 16. And although the appearance of a party will excuse the want of a citation, an appearance by proctor will not do, unless his authority to appear is made out in the most solemn manner. Hall’s Admiralty Practice, 14, 18, where the practice of the Ecclesiastical Courts is stated. Poynter on Mar. and Div., Law Lib. 57, (161, 162, 163.) If the rules and practice of the common law are to govern this question, then also the sentence would be a nullity. Clearly this would be so in felony. Sperry v. Commonwealth, 9 Leigh 623. And also, in cases of high misdemeanor, 3 Rob. Prac. 115. Such would be the case if an attorney (nameless too,) appeared and plead not guilty; how much more if a nameless person appear in the absence of the party to confess the indictment and plead guilty ?
    Even in civil cases a retraxit cannot be by attorney, but must be by the party in person. Beecher's Case, g £0p_ gg q And though this would be ground of reversal on writ of error, it is an irregularity which authorized the parties also to regard it as a nullity, according to the distinction between irregular judgments, which are not only erroneous but void, and those which are only erroneous, and therefore voidable only, by writ of error. Vid. for this distinction, Britton v. Cole, 1 Ld. Ray. R. 805; Philips v. Biron, 1 Str. 509; Perkin v. Proctor, 2 Wils. R. 385; Barker v. Braham, 3 Wils. R. 368.
    The objection to any judgment declaring the nullity of or dissolving a marriage, on the confession of an attorney, is strengthened by the known policy of the law, which prohibits the Courts decreeing divorces upon the confession of the parties, of any fact essential to the decree. Supp. R. C. 222.
    
      7. That if the parties were cognizant of the prosecution against them, it is clear that the whole proceeding was not only irregular, but collusive and fraudulent. They had been permitted to live openly, cohabiting as man and wife for nearly three years in the county. The Court, although it declared the marriage null and void, made no sentence of separation ; exacted no security against cohabitation; and impanneled no jury to impose a fine ; and the parties were permitted ever after, until the death of the wife, for nine years, to live together as man and wife; to have children, known and called by the name of the parents; the wife known, called and treated as his wife in his house; and this cohabitation and recognition of the relation existing at the passage of the act of 1827, and continuing for five years afterwards. It is impossible to wink so hard as not to see that the prosecution was got up by the procurement and consent of the defendants for no other purpose, as in truth it had no other effect, (if this fraudulent scheme can be sustained,) but to protect her property from his marital rights. However regular and effectual the judgment might otherwise be, if all the other objections stated to it were insufficient, this must invalidate it. Rex v. Duchess of Kingston, 20 St. Tri. 355; Harg. L. Tracts 449, 486 ; D. Philli. note to Walton v. Rider, 5 Eccl. R. 289.
    III. Even if a marriage, such as this contracted in Washington, could be nullified by the judgment of a Court in this State, and if the judgment were regular, and in a case in which the Court had jurisdiction, yet as there was no sentence of separation, as the parties lived together until the death of one of them, and after the act of 1827, the marriage at the most was only voidable and not void, and continued cohabitation as man and wife, without judgment of separation, until the act of 1827, and the death of the party, renders it impossible now to impeach the marriage; and consequently, they must be taken to be, and to have been at the death of the wife, for all civil purposes, lawfully man and wife. The law Rev. Code, supra, makes cohabitation as man and wife conclusive proof of marriage. They did so cohabit after the judgment aforesaid, and until 1827. It is decided by the General Court, (Com. v. Leftwich, 5 Rand. 657,) that after the passage of the act of 1827, there could be no decree or judgment of separation, and that all marriages within the inhibited degrees prior to that act, were legalized, or at least they could be neither vacated nor punished.
    Now, that a marriage impeachable only by reason of affinity is merely voidable and not void, is clearly settled. Poynter on Mar. and Div. 84, 154; Comb. 200; 1 Black. Com. 434, 5, 440; Harris v. Hicks, 2 Salk. R. 548 ; Co. Litt. 33-6 ; 1 Lom. Dig. 64; 2 Philli. 16 ; 1 Lom. Dig. 75, 76.
    
      Notwithstanding the judgment on the indictment, declaring the former marriage null, as they still cohabited as man and wife, they still were liable to be prosecuted again, as for a marriage within the State, and their cohabitation would have been proof of the marriage, and a sentence of separation might have been had. Surely the same proof which would have been sufficient to justify a decree of separation and divorce, is sufficient to prove a marriage against them, and their children claiming under them ; and now that one of the parties is dead, without a sentence of separation, and when no such sentence can now be pronounced, must be sufficient to preclude them, and those claiming under them, from denying the marriage, or its validity.
    
      Morson, for the appellees.
    This is an effort to obtain payment of a debt out of property to which Alexander B. Scott only had claim by a' marriage declared null and void eleven years before the execution was levied; property which, during all that time till her death, had been in the possession of Mrs. Scott, which, two years before the suit of the appellant against Scott had been brought, Mrs. Scott had bequeathed by her will, and which had been since held by the testamentary guardiau of her children.
    As to the first question made by the counsel for the appellant, how can it be said that the property in these slaves is in the personal representative of Mrs. Scott, when they have been in the possession of her legatees for near five years since her death ? The personal representative of Mrs. Scott sets up no claim to the slaves; and it must be taken at this day that he has assented to the legacy, and therefore that the legatees had the legal title to them at the time the execution was levied. But if they did not have the legal title, none but Mrs. Scott's adm’r or her creditors can object, and there being no claim by them, the title of the legatees is impregnable.
    
      The marriage settlement made by Alexander B. Scott and Mary Jane Dixon before the marriage, must be thrown out of the case. The feme was an infant at the time. It was never recorded as to her; and there is no proof of its execution by her.
    It is said that the marriage was originally valid, and vested in the husband all the marital rights. It is true the marriage was authorized by the law of Maryland, which is the law of that part of the District of Colum,bia in which the marriage took place. But though it was valid there it was a nullity in Virginia, by our statute, which enacts that the marriage shall be declared null by the Courts; and directs that the act shall be expressly given in charge to the grand juries. 1 B.ev. Code, ch. 106, 18, p. 399.
    There might have been some ground for the first objection under this head taken by the appellant’s counsel, if the marriage had taken place before the statute was enacted. But this was not the fact. It is, therefore, a mistake in the use of terms to say that the statute divests the rights of the husband. The rights never vested in Virginia.
    
    Where there is a conflict between the laws of Virginia and Maryland, each will be governed by its own law in its own Courts. In all cases, it is a question of discretion whether a foreign law will be regarded, and it never is regarded when it is against the policy of the country whose Court is asked to enforce it. Story on Conflict of Laws, § 18, 21, 22, 23, 25, 29, 38. These references are in regard to the general rules applicable to all cases; but the doctriue equally applies to marriages. Id. § 84.
    It is true Judge Story appears to think that the doctrine of the civilians has not been sustained by the English decisions on Scotch marriages. But these marriages have been sustained, not because they are valid in Scotland, but because they are not avoided by the English statute. Story on Conflict of Laws, § 124 and note 4. The authorities there cited shew that Scotch marriages are not prohibited by the English statute, and that if they had been prohibited they would have been held to be void. There are other sections of (hjg work which throw light on this question. § 113 a, 166 a in the note, 123, ISO. This last section refers to a case in Louisiana, which holds that a marriage out of the state which is null within it, does not vest the property ; but it will pass on the death of the wife as if there had been no marriage. The same law is referred to in § 198. Upon these authorities I may well insist that both as to the factum of marriage and the rights of property, the law of Virginia, and not that of Maryland, gives the rule.
    It is said that the statute does not profess to divest the husband’s rights of property. That is true. The statute does not divest, but it prevents the vesting. The act annuls the marriage; makes the parties to it criminal; directs them to be prosecuted, and directs the Courts to declare the marriage a nullity. The office of the Court is only to declare the nullity of the marriage; the act has already annulled it.
    The marriage being a nullity, no right of property can be derived from it. This is so on general principles. Wilson v. Spencer, 1 Rand. 101; Seidenbender v. Charles’ adm’r, 4 Serg. & Rawle 151; Wheeler v. Russel, 17 Mass. R. 258 ; Chitty on Cont. 419, 422. In all these cases it was held, that if an act is forbid by the law, it can give no rights to any party. A fortiori, in marriage contracts — for marriage is held to be a contract — a void marriage can give no rights to any party.
    Before the Court decides a marriage to be void, it is void ipso facto. It has been so held in England as to marriages in violation of their marriage act. Poynter on Marriage and Divorce 155, 156, 13 Law Libr.; Shelford on Marriage and Divorce 480, 33 Law Libr. And no right is acquired over the feme’s property where the marriage is void. Shelford, p. 478. These authorities shew that where a marriage is declared a nullity, neither the husband or the wife have any rights in the property of tho other.
    It is objected, that the indictment against these parties was bad, and that they could not plead by attorney; but neither objection is tenable. The indictment charges, that the parties were married in the City of Washington, and have returned and are living in the county of Fauquier, and are cohabiting as man and wife, &c., contrary to the act of the General Assembly. They could not return to if they had not gone from the State of Virginia; and the conclusion contra formam statuti strengthens this construction of the averment. Hutchins’ Case, 2 Va. Cas. 331, is equally vague, and it was sustained by the General Court.
    This was an indictment for a misdemeanor, and therefore the appearance and pleading by attorney was proper. 1 Chitt. Crim. Law 436.
    The act requires the Court to declare the marriage a nullity, but it requires no more. The Court may do more, but the act does not imperatively require it. It is in the discretion of the Court to impose a fine upon the parties, or to require a bond from them with condition to separate. 1 Rev. Code, ch. 106, § 18, p. 399. In fact the judgment of nullity is a definitive sentence of separation as man and wife.
    We have already seen that the parties might appear by attorney, the prosecution being for a misdemeanor. As to the practice in the English Ecclesiastical Courts, it has no application. The statute directs the prosecution according to the usual course in cases of indictments or informations. 1 Rev. Code, ch. 106, § 18.
    The suggestion, that the parties were not informed of the proceedings, is without foundation. But these are objections which cannot be taken in this mode. The judgment could only have been reversed by writ of error. The Court had jurisdiction of the cause, and its judgment is therefore conclusive until reversed upon appeal. 1 Chitt. Crim. Law 747. And the writ of error cou]¿[ only be by the parties themselves, or their personal or real representatives. 2 Stark. Evi. 436.
    It is said the judgment against these parties was collusive and fraudulent. A collusive judgment is a judgment founded on the assumption of facts as true which were not true. Here there is no doubt the facts were true ; and either party might have given the information without being guilty of collusion or fraud. In point of fact, however, there is no proof that this proceeding was at their suggestion, or that they desired the prosecution. A witness was sent to the grand jury, and on his testimony the indictment was found. The judgment was such as the facts required; and that judgment is conclusive until reversed. And such is the general effect of judgments in cases of marriage, whether in the Common Law or Ecclesiastical Courts. Story’s Conf. of Laws, § 587, and following; 3 Philips’ Evi. 851-853, Cow. & Hill’s edi.; Barber v. Root, 10 Mass. R. 260; Shelford on Mar. & Div. 471.
    If the counsel for the appellant means that the subsequent cohabitation reversed the judgment of the Court, still it is insisted that the judgment is conclusive of the nullity of the marriage. The marriage and the judgment were previous to the act of 1827; and it is unnecessary therefore to enquire into the effect of that act upon cases coming within its operation. If it be said that there might have been a second prosecution, and sentence based upon proof of cohabitation, still it will scarcely be contended that this is evidence to entitle the appellant to claim property. To punish the parties, this species of evidence is allowed; but to entitle the appellant to claim the property, a marriage must be proved.
    
      
      Patton, for the appellant.
    This is an effort by a creditor of a husband to subject the property of the wife, with whom he intermarried in 1821. Two of these plaintiffs were born after the judgment declaring the marriage a nullity. The parties lived together throughout their joint lives as husband and wife; had children as husband and wife; and he held and managed the property.
    By the marriage settlement, which was at least good against the husband, the property was Mrs. Scott’s for her life. His creditors, therefore, could not proceed against it until her death in 1833; and Kelly could not do so until 1835, the date of his judgment.
    What was the purpose and object of the legislation on this subject ? Was it not to protect the community from the scandal of such relations? Was it intended that every thing should go on after the judgment declaring the marriage null, as before, except that the property of the wife should be protected from the creditors of the husband? Was it the purpose to allow all the immorality between the parties, and only to injure third persons not parties to the proceedings ?
    The marriage between Alexander B. Scott and Miss Dixon, in the District of Columbia, was valid there; of that there is no question: Then was it competent for the Legislature to annul a marriage which was valid where it was contracted ? Story, in his Conflict of Laws, $ 123 a, after giving the authorities pro and con, sums up and says, it is settled in England and America that the marriage is valid; and this upon principles of public policy. It is said in Putnam v. Putnam, 8 Pick. R. 433, that this doctrine is established in England on the ground that Scotch marriages are excepted out of the marriage act. But Story discusses this question, and shews that this is not the ground on which the doctrine is rested; but that the rule is the same as to marriages in other places in fraud of the English statute; and this too on grounds of public policy.
    
      I shall not contend that if the statute of Virginia had declared that a marriage within the prohibited degrees of kindred, should be void, that it would not be effective. This is the case with some of the authorities cited from England, where certain marriages are declared void ab initio. But where a marriage is void for affinity or for the like causes, it is valid until a sentence of nullity has been passed upon it by the Ecclesiastical Court; And such is the case under consideration.
    If it was competent to vacate a marriage which was legal where it was contracted, the Legislature have not done it. The statute has not said that such a marriage shall be void; nor does it authorize a judgment declaring the marriage a nullity where the parties went out of the State and were married where the marriage was valid. The act of 1788, 12 Hen. St. 688, was only intended to affect marriages in the State. In 1817, it was for the first time made criminal to go out of the State, intending to return, and marry within the prohibited degrees. That act authorized the Courts to pronounce a sentence of separation, and to punish the parties. Both these statutes were incorporated in the act of 1819. 1 Rev. Code, ch. 106, <§> 18, p. 399. This act does not provide that there shall be judgment of nullity, but it provides for the separation of the parties; and this is to be done by requiring them to execute bonds with condition that they will not cohabit thereafter.
    The act of 1827 makes a marriage within the prohibited degrees a misdemeanor, and provides for the punishment of the parties; but it repeals the law which authorized a judgment of separation.
    It may be argued that the provisions of the statute apply to marriages within the prohibited degrees, whether contracted within or out of the State. But, looking to the history of our legislation on the subject, it will be seen that the act should be read distributively, confining the power to declare the marriage null to such as were contracted within the State, and applying the other provisions of the statute to marriages contracted abroad.
    If the Court could have declared marriages contracted abroad null, it could only act prospectively from the date of the judgment. The parties must have returned to the State to create the offence; and until then the marriage was legal and valid. Until they returned they could not be punished. Now these parties remained in the District of Columbia for three weeks; and during that time the marriage was valid. During that period his marital rights attached to the property of his wife, and no subsequent act could divest his rights.
    The statute says that the Court shall declare the marriage null; but it does not direct that the marriage shall be declared void ab initio. The counsel for the appellees seems to admit that unless the marriage is void ab initio, the rights of the husband attached to the wife’s property. Suppose the parties had remained in the District of Columbia for nine months, and there had been a child of the marriage born there, would that child have become illegitimate upon the judgment declaring the marriage null ?
    The judgment of nullity in this case was itself a nullity, because the Court had no authority or jurisdiction to render such a judgment. I have already argued one branch of this question in shewing what is meant by the statute in directing that the parties shall be separated and punished. But if the Court had the authority to declare the marriage a nullity, this authority has not been used as the Court was bound to use it. The object of this power to declare the marriage null is as an incident to the object of separating and punishing the parties. This is the object for which this power is employed in the Ecclesiastical Courts of England. Poynter on Marr. & Div. 120, 121, 13 Law Libr. And this is the character of our legislation. The substantial object is the punishment; the nullity of the marriage is merely an incident. Here then the Court has failed to do the principal thing, and has done that which is only an incident to what it has not done.
    It is said that the act settles this question, and does not require more than has been done. But the act does require more. It says the Court shall punish the parties; and if the Court does not punish, it cannot declare the marriage a nullity. The act 1 Rev. Code, ch. 106, <§. 18, p. 399, provides that the parties shall be punished. The only discretion left to the Court is as to the security. The function of the Court is to prevent the cohabitation, the immorality; and to do this, to separate and punish the parties. If the Court does not prevent the cohabitation, the sentence of nullity intended to effect this object is mere bruturn fulmen.
    
    In the case referred to from Massachusetts, the parties came in and confessed the offence, and yet the Court held it could not act on that confession. In this case the parties appeared by counsel, and he confessed they were guilty in manner and form as in the indictment was alleged. This was only an admission that the facts alleged were true. If these facts constitute no offence, they have confessed none; and the Court could not give a judgment of nullity.
    The Court, in the trial of these causes, is a Court of special jurisdiction, and therefore every thing necessary to give it jurisdiction must appear on the face of the record. But the indictment does not allege that the parties went out of the State, or that they went with the intent to evade the law, or with intent to return. Now, where the particular intent constitutes the offence, it must be alleged. Here then the judgment was not only erroneous, but the Court had no jurisdiction to pronounce the sentence; and therefore it was wholly void, and a mere nullity.
    
      If we look to the proceedings of the Ecclesiastical Courts, we will find that a sentence of nullity of a marriage is never conclusive against third parties; 2 Stark. Evi. 931; that whilst the Ecclesiastical Courts have exclusive jurisdiction for the purpose of punishing the parties and declaring the marriage null, the temporal Courts have exclusive jurisdiction to decide all questions in relation to property; and the sentence of the Ecclesiastical Court is only binding as between the parties to that proceeding.
    It is certainly true that a marriage originally void is a nullity at all times. Poynter on Mar. & Div. 157, 13 Law Libr. This is the class of cases to which the counsel for the appellees directed his argument; and if this marriage was of that class he is right. Indeed no sentence of nullity is necessary in such cases, because there is in fact no marriage. But our statute gives to the Circuit Courts precisely the powers of the Ecclesiastical Courts in England. Their power is only applicable to voidable marriages; and as to these, the nullity of the marriage only relates to the time of the sentence; and the sentence is not conclusive. Duchess of Kingston's Case, 20 State Trials 355, 537. I submit, therefore, that the validity of the sentence is open to enquiry in all questions of property arising between other parties; and where either the Court had no jurisdiction, or the sentence was on its face clearly erroneous, it cannot affect third parties.
    We say, then, that the proceeding in the Circuit Court of Fauquier was fraudulent and collusive. These parties were allowed to live undisturbed for three years in the county. The grand jury then meet on the 13th of the month, when an indictment is sent to them, with a witness to prove it, which they find a true bill, and on the next day the parties, without being served with process, appear by attorney, and confess themselves guilty; and the Court, on the 15th, enters a judgment that the marriage is null, but inflicts no punishment, decrees no separation, and requires no obligation that they shall live apart from each other. There was, in fact, no interruption of their relations. They continued to live together as husband and wife, procreate children, visit and receive visits, just as they did before the sentence. For all the purposes intended by the statute the judgment of the Court was wholly inefficient ; and its only purpose and object was, to secure the wife’s property against the creditors of the husband. In fact, the Court did not adjudicate the cause, but entered a judgment by consent for the purpose of committing a fraud upon the law and third persons. It was in this light that the judgment was understood by the community. Here were these parties, separated by a sentence which made their intercourse adulterous, living so as to subject them to prosecution, and this known to all the neighbourhood, and yet they are received by all and treated by all as husband and wife.
    The law which directed persons in the condition of these parties to be separated and punished, was repealed by the act of 1827, so far as related to the mode of proceeding and the punishment to be inflicted. Supp. Rev. Code, ch. 161, p. 220. This act changes the whole character of the offence; and as the law now is, the man marrying his wife’s sister may be punished by fine and imprisonment, but there can be no judgment of nullity or separation. The marriage was legalized by that act.
    These parties, at the time of the passage of the act of 1827, were not separated by the judgment of the Court. If no sentence of nullity had then been passed, they were no longer liable to be separated. There was, in fact, no sentence of separation. Having lived together as husband and wife, that cohabitation was evidence of marriage, and they were liable to another prosecution for the purpose of separating them. No such proceeding was instituted, and even if such was pending when the act of 1827 was passed, the prosecution for the purpose of a separation would then have been arrested. Commonwealth v. Leftioich, 5 Rand. 657. Here, then, are these parties living together as husband and wife, which is evidence of marriage, and the act of 1827 forbids a judgment of separation. Suppose the lady was now alive and applying for a separation, would not the act of 1827 bar any such proceeding ?
    On a prosecution under this act of 1827, the cohabitation of the parties would be conclusive of the marriage ; aud these parties might therefore have been punished for a second marriage. Then, is not this evidence of marriage in favour of third persons? Stark. Evi. p. 939, shews that cohabitation and general repute are evidence of marriage generally, and on general principles the parties are bound by the reputation which their own conduct has occasioned.
   By the Court.

The judgment is affirmed.  