ties, Welde v. Welde, 2 Lee, 586. Two points are essential to be proved by the complaining party; first, that there was an impediment to consummation existing at the time of marriage; and secondly, that it is incurable, Brown v. Brown, 1 Hagg. 524.

Case of Inspection was refused until after triennial

cohabitation, even although the wife specified a -mi-visible defect in the husband, Aleson v. Aleson, -nistration 2 Lee, 576. It is said the law requires that the

party's answers should be given in, or that he should submit himself to medical inspection. If this were so the man would have only to withdraw beyond reach of the process of the Court, and thus defraud the woman of her remedy. The law never imposed such difficulties on any Court, Pollard v. Wybourn, 1 Hagg. 729.

The subject itself is fair ground for complaint. Natural malformation is rare, still instances do occur; sometimes they are without the knowledge of the party. Where it is with the knowledge it is a gross fraud and a grievous injury. In either case, the law provides a remedy which the Court will apply on complaint being made, Briggs v. Morgan, 3 Phill. 331. If there is just reason either to suspect the truth of the statement, or to think the injury inconsiderable, the Court will hesitate before it descends to modes of proof which are painful, Briggs v. Morgan, ubi supra

330.

If the case be one of supervening infirmity

from declining years, the Court will not interfere, Per Lord Stowell, Briggs v. Morgan, 3 Phill. 332; Brown v. Brown, 1 Hagg. 525 (semble).

The rights and duties of both parties are coequal, whether the failure be on one side or the other. The evidence may be uncertain in its very nature; but though the expectation of infirm evidence may induce greater caution, it is not to preclude the parties from having recourse to such modes of proof as the law allows, Briggs v. Morgan, 3 Phill. 328. Triennalis cohabitatio is not necessary in such a case, for where the infirmity may be ascertained at once, this cannot be required. All the great authorities, ancient and modern, subscribe to this, which is the rule of reason, Briggs v. Morgan, 3 Phill. 329.

A triennial cohabitation does not require a living together de die in diem; but a general cohabiting only, as is usual between married persons, Welde v. Welde, 2 Lee, 579; but it is requisite that, if the parties are long separated, the man be restored as to that time during which he has been absent, Ib. 586.

Where the husband instituted a suit of nullity of marriage by reason of his own impotence, the Court said: "No instance has been found of a man seeking to set aside his marriage on account of his own incapacity. It is incredible that he should have lived forty-five years in ignorance of a bodily defect, which he alleges to be evident on

inspection. The presumption is in favour of the marriage; besides there is a subsequent cohabitation of seven years before the suit is brought; he must have sooner discovered it. The maxim applies cur tamdiu taccui? He has defrauded his wife into a marriage, has acquired her property, kept her for a long period in a condition of perpetual injury, and now seeks to relieve himself of the burden of maintaining her. This is merely a voidable marriage, and is so laid down by Blackstone. It is a maxim that no man shall take advantage of his own wrong. There is no instance of a suit brought by a party alleging his own incapacity." Suit dismissed, Norton v. Seton, 3 Phill. 147.

The sentence in suits of impotency being merely declaratory of nullity, and the marriage in such cases being void ab initio, the fact of the complaining party not having in a previous matrimonial suit controverted an allegation pleading lawful marriage is barred thereby from afterwards promoting a suit of impotency, Guest v. Shipley, 2 Hagg. C. 321.

Where the husband confessed his own impotency, but was supported by the evidence of medical men, and there was clearly no collusion between the parties, the sentence of nullity was pronounced for, Greenstreet v. Cumyns, 2 Phill. 10.

Where in a suit of nullity of marriage by reson of natural malformation, the medical inspec

tor's evidence showed that there might be connexion of a very imperfect character from the peculiar and unnatural formation of the parts, that the parts had considerably elongated, and might do so still more; but that they must always remain in a deformed and unnatural state, forming an impervious cul de sac. Held, that as the woman was not, and could not be made, capable of more than an incipient, unnatural, and imperfect coition, the marriage was void; but that this would not have been the case had there been

a vera copula, though without the power of conception, D. v. A., 1 Robt. 279.

In a suit of nullity of marriage by reason of natural malformation, where there is no reason to suspect insincerity or fraud, mere lapse of time alone is no bar to the suit, B. v. M., 2 Robt. 580.

In suits of this nature the rule requiring a triennial cohabitation is not absolutely binding. It is a convenient and fitting rule, and one not to be departed from on slight ground; the object of it is to provide that sufficient time may be afforded for ascertaining beyond a doubt, the true condition of the party complained of U. V. F., 2 Robt. 614. And the same was held where, after two and a half years' cohabitation, the man was reported impotent, quoad hanc, though his impotency was not physically apparent, N. v. M., 2 Robt. 625.

Where there had been sufficient triennial coha

I

bitation, and there was no sufficient proof of the virginity of the woman, but the alleged husband admitted that the marriage had not been consummated, and there was evidence of his having admitted his incapacity, the Court pronounced the marriage null, and condemned the defendant in the costs without any inspection, Sparrow v. Harrison, 3 Curt. 16.

It is competent for a man to bring a suit of nullity of marriage against a woman for natural malformation, Briggs v. Morgan, 3 Phill. 325.

The Court is not disposed to encourage such causes where promoted by the husband without an evident necessity, the proofs being manifestly such as are against the modesty of the sex, Guest v. Shipley, 2 Hagg. 321.

Where the woman was near fifty, the husband a little younger, and he did not make any complaint until sixteen months after marriage; she was a widow, and swore to having had intercourse with her first husband during eighteen years, which was supported by other evidence, it was also alleged, but proof was pronounced to have failed, that she lived on bad terms with her former husband, and that he cohabited with another woman; the husband prayed an inspection. The proceeding was dismissed, the Court being unwilling to interfere where the parties were of such age, and also because of the delay in making the complaint, and the want of truth in