#### DAVID WILLIAMSON AND AMELIA *his wife, against*HENRY B WILLIAMS, J. B. CASHION *and another.*

A court will not entertain the question of “nullity of marriage on account of u imbecility,” incidental!}', but will stay proceedings in the suit in which such issue is made, that it may be determined by a direct sentence in either a superior court of law or a court of equity.

Cause removed from the Court of Equity of Mecklenburg county.

The bill was filed by the,,plaintiffs, as husband and wife, against the wife’s guardian, for an account and settlement of his trust. By way of anticipation, it was alleged, that the form of a marriage had passed between the feme plaintiff and one Oashion, who is still living, and.that the defendant made that as an excuse for not settling with the plaintiff; but that this was not a bar to their right of recovery, for that at the time of this pretended marriage, she was little over thirteen years old; was very weak of intellect, and was brought to submit to this pretended ceremony by fraud and artifice, accompanied, in some degree, with actual force, but that she did not understand the nature of the transaction in which she was involved; that she did not give her consent to a marriage, and never afterwards consummated such a marriage by cohabitation with said Cashioh; that she remained in the house of the said Oashion, closely watched by his near relations, residing with him, for about six months, when accidentally meeting with her mother, she was rescued from this state of duress by her, assisted by her slaves ; that she never saw or spoke to the said Cushion afterwards; that he shortly after this ran away from this country and went to parts unknown to her; that this took place in 1846, more than nine years before the filing of this bill, and that the said Oashion, except one visit to her mother’s house, a few daj's after her rescue, when she refused to see him, has made no assertion of marital rights or authoritj'. The plaintiffs state that, not deeming such an iniquitous transaction a marriage, after arriving at *447mature years and a better state of mind, she entered into a marriage with the plaintiff Williamson, and as such husband’ and wife, this suit is brought for the recovery of her estate, which consists of land and slaves and money, and the profits arising from these for several years .past.

The defendant Williams, the guardian, avers the validity of the former marriage, and alleges it in bar of the plaintiffs’ right to recover in this action.

A judgment *pro confesso*was entered as to the defendant Cashion. Replication, commissions and proofs, and the cause being set for hearing, was sent *to*this Court, where the caso was contested upon the question of the validity of the former marriage.

*Osborne*and Jones, for plaintiffs.

*Wilson,*for defendants.

PeaksoN, J.

This is an ordinary hill hy a ward against a guardian for an account and settlement of her estate. By way of anticipating the defense, the plaintiffs charge that the defendant refuses to account, protending that, prior to the intermarriage of the feme plaintiff with the other plaintiff, she was married to ono Cashion, who is still living j but they ayer that, although there was a marriage de facto between the said Cashion and the feme plaintiff, yet such marriage was null and of no force or effect, for that, at the time of its celebration, she was of a weak and imbecile mind, and did not consent to the marriage, hut was hy fraud and duress procured to enter into it against her will, and that as soon as she was freed, therefrom, sho separated from him and refused to recognise the relation of man and wife in respect to him.

The answer relies upon the marriage of the feme plaintiff with Cashion as a defense, and the validity of that marriage is thus incidentally put in issue.

The plaintiffs’counsel cited several authorities in support of the position that where “ nullity” of marriage is incidentally put in issue, in any proceeding, before any tribunal, such *448tribunal has power to decide tho question as necessarily involved in the exercise of its appropriate jurisdiction. Without entering upon this subject, it is sufficient to say, in tho language of the court, in *Johnson*v. *Kincade,*2 Ire. Eq. 474, “ It is convenient and fit in. respect to the decent order of society, the condition of the parties and succession of estates, that the validity of such a marriage should be directly the subject of judicial sentence.” And as the Legislature has conferred *sole, original*jurisdiction in *all applications for divorce,*upon the superior courts of law and courts of equity, (Rev. Code, eh. 39, sec. 1,) and pointed out tho mode of proceeding, and tlie rules and regulations to be observed (sec. 5) and required that the material facts charged in the petition or libel shall be submitted *to a jury,*upon whose verdict, and *not othenoise,*the court shall decree, (sec. 0.) and authorised a decree from tho bonds of matrimony, or *that the marriage is null and, void,*and, after a sentence nullifying or dissolving the marriage, all and every, the duties, &c., in virtue of such marriage, shall cease and determine, with a proviso as to tho legitimacy of the children, (sec. 11,) we do not feel at liberty to decide a question of such grave importance, as a thing collateral or incidental to an ordinary bill for an account, where the trial will be made, without the intervention of a jury, upon depositions which are usually taken in a defectivo and unsatisfactory manner; *Fisher*v. *Carroll,*1 Jones’ Rep. 27.

That the jurisdiction of tho Superior Courts of Law and Courts of Equity, under the statute, extends to a case of “nullity of marriage, is settled; *Johnson*v. *Kincade, supra;**Crump*v. *Morgan,*3 Ire. Eq. 91; and the propriety of requiring that fact to be established by the judgment or sentence of a tribunal having sole original jurisdiction, is too manifest to require any further observation.

The cause will he retained “for further directions,” to the end, that the plaintiff', if so advised, may institute proceedings in the proper court to obtain a decree of nullity of marriage, after which they will be at liberty to move in this cause, and *449in the meantime to take any order that may be necessary to secure the fund.

PeR Cueiam, Decree accordingly.