Under a writ of fi. fa. de bonis testatoris, the sheriff may, if he find no assets, return nulla bona instead of devastavit (Williams on Executors, 10th ed., 1598, 1600). Should nulla bona be returned in the case of a beneficed clergyman, a writ of levari facias may be issued to the bishop of the diocese (3 Black. Com., 418; 2 Co. Inst., 4).

In the case of an abortive execution, the costs thereof cannot be added to the judgment debt so as to enable a creditor to petition under the Bankruptcy Act, 1883, s. 6 (In re Long, 1888, 20 Q. B. D. 316); nor can they be recovered under a subsequent writ (Salisbury v. Ray, 1860, 29 L. J. C. P. 225); but if the sheriff's officer have made an overcharge by mistake, he will be relieved from the penalty imposed by the Sheriffs Act, 1887, s. 29 (Lee v. Dangar & Co., [1892] 1 Q. B. 231; 2 Q. B. 337).

Null and Void.-Properly speaking, a thing is null which does not exist or is not in the nature of things, but figuratively the term is applied to what has no more effect than if it did not exist. When, therefore, in law anything is declared null and void, it will not have the legal consequences which otherwise might be attached to it. At the same time, the presumption is always in favour of the validity of a legal act until the contrary is established, and there are nullities which can be waived (Maltby v. Murrells, 1860, 29 L. J. Ex. 377); and so, when transactions are declared by the law, or in statutes or instruments, to be "null and void," they will not, as a rule, be avoided more than the purpose of the law or statute or instrument requires, or on merely immaterial technical grounds (per Turner, L.J., in Jortin v. SouthEastern Rly. Co., 1855, 6 De G., M. & G. 275; 43 E. R. 1239; see also In re Sims, Ex parte Sheffield, 1897, 45 W. R. 189; Universal Stock Exchange v. Strachan, [1896] A. C. 166; Ernest v. Loma Gold Mines Co., [1896] 2 Ch. 572; Miller v. Everton, 1895, 64 L. J. Q. B. 692; In re Toomer, Ex parte Blaiberg, 1883, 23 Ch. D. 254; Maleverer v. Redshaw, 1669, 1 Mod. 35). As to the effect of statutes, Twisden, J., said (Maleverer v. Redshaw, supra): "The statute is like a tyrant: where he comes he makes all void; but the common law is like a nursing father; makes void only that part where the fault is, and preserves the rest." And even instruments void on the ground of forgery may give rise to obligations which will be enforced in law, provided the party relying upon them has not himself been guilty of uttering them, or of laches, or of express acquiescence (Ogilvie v. West Australian Mortgage and Agency Corporation, [1896] A. C. 257; Clutton v. Attenborough, [1897] A. C. 90; Bank of England v. Vagliano, [1891] A. C. 107). This will be especially so if the subsequent acts have taken place bona fide, in the ordinary course of business and under such circumstances that the parties cannot be fully reinstated in their former position (London and River Plate Bank v. Bank of Liverpool, [1896] 1 Q. B. 7). Acts done apparently within the scope of an agent's authority will prima facie be deemed valid (Biggerstaff v. Rowatt's Wharf, [1896] 2 Ch. 93); and even when acts are avoided on the score of being ultra vires, yet restitution may be allowed to non-consenting parties (Andrews v. Gas Meter Co., 1896, 45 W. R. 46; Ashbury v. Watson, 1885, 30 Ch. D. 376; Hutton v. Scarborough Cliff Hotel Co., 1865, 2 Drew. & Sm. 521; 62 E. R. 717). If a transaction is only partly bad, then, if the bad can be separated from the good, it will only be annulled so far as the former is concerned (Dubowski v. Goldstein, [1896] 1 Q. B. 478; In re Burdett, 1888, 20 Q. B. D. 310; Maleverer v. Redshaw, supra); but if, on

the other hand, the legal and illegal parts are inseparable, the whole must fall (Willes, J., in Pickering v. Ilfracombe Rly. Co., 1868, L. R. 3 C. P. 235, 250). Even where the instrument is bad in toto, personal covenants therein may nevertheless be enforceable (Payne v. Mayor, etc., of Brecon, 1858, 27 L. J. Ex. 495; Kerrison v. Cole, 1807, 8 East, 231; Mouys v. Leake and Jones, 1799, 8 T. R. 411). And an instrument, though bad in substance, through infringing the law in some way, may yet avail as between the parties to it (Cookson v. Swire, 1885, 54 L. J. Q. B. 249; Doe d. Roberts v. Roberts, 1819, 2 Barn. & Ald. 367; 20 R. R. 477).

Important consequences follow from the fact that where a legal act is liable to be avoided, someone must move to set it aside; and until someone does so move, it can only be treated as voidable. So in some cases a party may be barred from objecting through acquiescence, as by taking some benefit under the instrument in question (Strachan v. Universal Stock Exchange, [1895] 2 Q. B. 697; Davenport v. R., 1877, App. Cas. 115; Doe d. Bryan v. Bancks, 1821, 4 Barn. & Ald. 401; 23 R. R. 318; Hyde v. Watts, 1843, 12 Mee. & W. 254; 67 R. R. 332). But it is not necessary that the transaction should be repudiated immediately on the discovery of its voidable nature, and a reasonable time for consideration will be allowed (Aaron's Reefs, Ltd. v. Twiss, [1896] A. C. 273; Imperial Ottoman Bank v. Trustees, Executors, and Securities Insurance Corporation, 1895, 13 R. 287). Sometimes, too, a formal act must be performed before the forfeiture can be complete, and therefore the bargain can only be treated as voidable after such formal act has been done (Arnsby v. Woodward, 1827, 6 Barn. & Cress. 519). As against the same person, if an act is void for him in one character, it will usually be so for him in another (Betham v. Gregg, 1834, 10 Bing. 352; 38 R. R. 449). And the Statute of Limitations will only run against a contract from the date of its avoidance (Cowper v. Godmond, 1833, 9 Bing. 748).

Again, on the principles that no one can take advantage of his own fraud and quod non decipitur qui scit se decipi, the grantor of a void instrument and his representatives will be estopped from pleading its nullity (Davis v. Goodman, 1880, L. R. 5 C. P. D. 128; Pennington v. Cardale, 1858, 27 L. J. Ex. 438; Phillpotts v. Phillpotts, 1850, 20 L. J. C. P. 11; Doe d. Roberts v. Roberts, supra; Bessey v. Windham, 1844, 6 Q. B. 166; Malins v. Freeman, 1838, 4 Bing. N. C. 395; 44 R. R. 737; Davis v. Bryan, 1827, 6 Barn. & Cress. 651; 30 R. R. 491; Hunt v. Singleton, 1597, cit. 4 Bing. N. C. p. 398; Sale v. Bishop of Coventry, 1589, 3 Co. R. 596). But a voiding statute may be so strongly worded as even to avail the grantor (Sims v. Trollope, [1897] 1 Q. B. 24; In re Yates, 1888, 38 Ch. D. 112; Davies v. Rees, 1886, 17 Q. B. D. 408; Ex parte Parsons, In re Townsend, 1886, 16 Q. B. D. 532; Davenport v. R., supra; R. v. Hipswell, 1828, 8 Barn. & Cress. 466). This will especially be so if the statute renders the act illegal on public grounds, or to protect persons who cannot protect themselves, and not merely from regard for the interests of the parties (R. v. Hipswell, supra); and if a penalty is annexed, that will be almost conclusive of the absolute illegality of the act (Gye v. Felton, 1813, 4 Taun. 876). An important difference, therefore, exists between what can be construed to be merely irregular, and is in consequence amendable, and what absolutely lacks force and efficacy.

From what has just been stated, it follows that where any act in the

law is declared void, but can only be treated as voidable until objection is taken to it, the party not in default alone can move in the matter. The right of election lies with the grantee or other parties except the grantor, such as creditors (Davenport v. R., supra; Hughes v. Palmer, 1865, 34 L. J. C. P. 279; Malins v. Freeman, supra; Roberts v. Davey, 1833, 4 Barn. & Adol. 664; 38 R. R. 348). But sometimes a void instrument may bind even strangers as well as the grantor (Bessey v. Windham, supra).

No special magic attaches to such words as "utterly" or "to all intents and purposes" annexed to the phrase "null and void" in statutes and the like. Statutes like the 13 Eliz. c. 5, and 27 Eliz. c. 4, directed against fraud, will be favourably interpreted (Gooch's Case, 1589, 5 Co. Rep. 606; 77 E. R. 146). When words such as the above, therefore, occur, unless the purpose of the statute is to render the act struck at penal, they will be treated as little more than expletive (Molton v. Camroux, 1849, 18 L. J. Ex. 68, 356; Malins v. Freeman, supra; R. v. Hipswell, supra; Hunt v. Singleton, supra; Sale v. Bishop of Coventry, supra). And that a statute is to be construed as penal ought to be strictly established (Davenport v. R., supra). In this connection, the wording of the statute will frequently help, as where it declares an act to be void "in respect of" certain kinds of property, or "as against" certain persons (Edison General Electric Co. v. Westminster and Vancouver Tramway Co., [1897] A. C. 193; Davies v. Rees, supra; In re Toomer, Ex parte Blaiberg, supra). If once, however, a transaction or class of transactions has been declared illegal and void by statute, it will not again become valid on the repeal of such statute, apart from express provision to that effect (Gwynne v. Drewitt, [1894] 2 Ch. 616; cp. Interpretation Act, 1889, 52 & 53 Vict. c. 63, ss. 11 (1), 38 (2)).

[See Stroud, Jud. Dict., 2nd ed., s.v. “Null,” “ Void.”]

Nullity of Marriage.-There are two classes of cases in which marriages are, or may be, declared null and void: marriages which are void ab initio, and marriages which are only voidable at the suit of one of the contracting parties. The former class may itself be subdivided into two heads, namely, the case of marriages which are, ex necessitate rei, no marriages at all; and marriages which are only rendered absolutely null and void by statute. To put the most extreme case, a ceremony of marriage performed between two persons of the same sex would, by the law of nature, and by all laws human and divine, be nothing but a mockery and absolute nullity. Again, in all Christian countries-in all countries where monogamy is recognised as the fundamental principle of marriage-a ceremony or form of marriage, gone through by a person already united to another living person in lawful wedlock, cannot by any possibility be of any binding force or validity, assuming, of course, that proof of the validity of the former marriage and of the survival of both parties at the date of the bigamous marriage, be available (see In re Wilson's Trusts, 1866, L. R. 1 Eq. 247). In Scotland, however, the children of such putative marriages, if the same be contracted in good faith and without previous knowledge of the impediment, are recognised as legitimate.

It is to be remarked, as a matter of general observation, that, in suits for nullity, all legal presumptions are in favour of the validity, and against the nullity, of the marriage (see Catterall v. Sweetman, 1845, 1 Rob. Eccl. 304).

In suits for nullity on the ground of bigamy, lapse of time, however protracted, and misconduct, however gross, on the part of the petitioner, are not grounds of defence. If either of the parties to this or any other form of void marriage invoke the jurisdiction of the Court in order to obtain a formal decree declaring the de facto marriage null and void, for additional security or protection, the Court has no discretion to withhold such decree, even where both parties were, at the time they went through the ceremony of marriage, fully cognisant that it was absolutely void (Andrews (falsely called Ross) v. Ross, 1890, 15 P. D. 15; 59 L. T. 900; following Miles v. Chilton, 1849, 6 N. C. 636; 1 Rob. 684), pursuant to the mode of procedure laid down for the guidance of the Court, in suits for nullity of marriage, by the Matrimonial Causes Act, 1857, 20 & 21 Vict. c. 85, s. 22. It is, of course, to be remarked that the ground upon which the Court was called upon to make a decree in the case of Andrews v. Ross, ubi sup., is now no longer a ground of nullity, since the Deceased Wife's Sister Marriage Act, 1907, 7 Edw. VII. c. 47, came into operation, i.e. August 20, 1907.

A marriage is said to be void when it is good for no legal purpose, and its invalidity may be maintained in any proceeding, in any Court, between any parties, whether in the lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally (Shelford, Mar. and Div., 479, 480).

A voidable marriage is one which, as the word implies, requires some proceeding to set it aside; and, until set aside by decree of a lawfully constituted authority, it is a good marriage. Proceedings to set it aside can only be taken during the lifetime of the parties themselves; after the death of either of the parties, the validity of the marriage is beyond question.

The distinction between void and voidable marriages is so forcibly pointed out in the leading case of Elliott v. Gurr, 1812, 2 Phillim. 16, that the language there used has been adopted by all the leading textwriters on the subject. The marriage there in question was within the degrees prohibited by canonical law, for the husband was, by affinity, the wife's nephew, being the sister's son of her former husband; and the case arose out of a question as to the right of administration, after the wife's death. The learned judge of the Prerogative Court of Canterbury (Sir John Nicholl), in giving judgment (pp. 18, 19), said :

The difference between void and voidable is so clear that no person who ever looked into any elementary book on the subject is ignorant of it. The canonical disabilities, such as consanguinity, affinity, and certain corporal infirmities, only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained; and such marriages are esteemed valid unto all civil purposes, unless such sentence of nullity is actually declared during the lifetime of the parties. Civil disabilities, such as prior marriage, want of age, idiocy, and the like, make the contract void ab initio not merely voidable: these do not dissolve a contract already made, but they render the parties incapable of contracting at all: they do not put asunder those who are joined together, but they previously hinder the junction; and if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union; and therefore no sentence of avoidance is necessary. The present is not a void, but a voidable, marriage ; and therefore, not having been declared void in the lifetime of the parties, is valid to all civil purposes; and to all such purposes the deceased died the wife of William Gurr, and he was her husband, and their issue are legitimate..

So, too, in Bonham v. Badgley, 1845, 7 Illinois Reps. (or 2 Gilman), 622, where a man had married his sister's daughter (his own niece), the Court said that the marriage could not be impeached after the death of one of the parties.

The question of marriages within the PROHIBITED DEGREES of relationship covers a wide field, and has given rise to much controversy. Although it is very commonly assumed that the table set forth in Churches and in the Book of Common Prayer is to be taken in its entirety as binding in law, it may be doubted whether this is so absolutely clear. But see AFFINITY.

The Statute 28 Hen. VIII. c. 7, which included a table of prohibited degrees, has been repealed, and by 32 Hen. VIII. c. 38, s. 2, the foundation of our statute laws of marriage, "lawful persons" are declared to be "those that be not prohibited by God's law to marry;" and the latter part of the section enacts that "no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees" (see judgment of Sir Cresswell Cresswell in Wing v. Taylor, 1861, 2 Sw. & Tr. 297). These degrees are to be found in the 18th chapter of the Book of Leviticus, and a reference thereto will show that they are very limited in number.

The Act 32 Hen. VIII. c. 38 gave to the temporal Courts no power to interfere with the spiritual tribunals in respect of marriages within the Levitical degrees, for it is silent as to whether persons might, or might not, marry within any of those degrees; but, in regard to some, it is obvious that marriage would be repugnant to the law of nature, i.e. marriages in the direct lineal line of consanguinity and those between brothers and sisters (see Bishop, Mar. and Div., vol. i. s. 118, citing the Massachusetts case of Sutton v. Warren, 10 Met. 451). (As to the "law of nature," see further the remarks of Chancellor Kent in Wightman v. Wightman, 1820, 4 John, New York Chan. Reps. 343.)

But, on the other hand, in determining what persons are prohibited by the Levitical law to intermarry, it was pointed out in Butler v. Gastrill, 1722, Gilb. Rep. 156, 158; 25 E. R. 110, that not merely the words of the law itself are to be taken into consideration, but that what, by a just and fair interpretation, may be adduced from that law, ought also to be considered.

When we examine the Act of the last century, around which controversy raged so fiercely and so long, we find no explicit definition or explanation of the term "prohibited degrees." This statute, known as Lord Lyndhurst's Act, 5 & 6 Will. iv. c. 54, which, it should be noted, does not extend to Scotland, after providing that marriages, solemnised before the passing of the Act (August 31, 1835), of persons within the prohibited degrees of AFFINITY (as distinct from CONSANGUINITY) were not to be annulled, enacted (s. 2) that all marriages thereafter celebrated "between persons within the prohibited degrees of consanguinity or affinity" should be "absolutely null and void to all intents and purposes whatsoever" (see as to the extent of the effect of the last half-dozen words, In re Goodman's Trusts, 1881, 17 Ch. D. 266). To ascertain what "the prohibited degrees" are, we are left to grope among the statutes of Hen. VIII., and are then, as we have seen, thrown back upon the old Mosaical law, as laid down for the guidance of our forefathers in the 18th chapter of Leviticus.

In a case heard by the late Sir Francis Jeune on July 12, 1891, the petitioner, a niece of the respondent's former wife, was married in