484 FORNSHILL v. MURRAY.

descent^ require that there should be a limitation beyond which the
institution of any judicial proceeding for the purpose of trying the
validity of any marriage or the legitimacy of any person ought not
to be allowed.(g) If these principles be correct, and as entirely
applicable here, under different forms of judicial proceeding, as in
England, it follows, that there can now, after the death of Mary, be
no judicial proceeding had to declare her second and third mar-
riages, with Davidson and with Fulton, void for the purpose of
bastardizing her issue by either of them.

But the issue of Mary by her second and third marriages, which
were absolutely void, not merely voidable, are here claiming as par-
ties to this suit; and found their title to recover materially and
essentially upon the validity of those marriages, and their own legiti-
macy as the fruit of them. In all such cases, where a party claims as
heir or next of kin, and his own legitimacy, or that of the deceased
under whom he claims, is thus necessarily involved, and put in issue,
it never has been questioned, that the court might inquire into and
decide upon the validity of the marriage, or the fact of legitimacy.
This has been often done in England,(r) and has also been
allowed by the courts of this state ;(s) because, wherever the
validity of a marriage or the legitimacy of a party forms a com-
ponent part of the matter in controversy, it becomes indispens-
ably necessary, that the court should inquire into and deter-
mine upon that fact, as well as every other part of the case; for
otherwise it would be to suppose a suit brought before a court,
which had not a capacity to try the cause of action.(t) And upon
that ground, although it is perfectly well settled, that the Court of
Chancery has no criminal jurisdiction whatever, and is in its insti-
tution and forms of procedure absolutely civil, yet if a bill be filed
in it for the purpose" of setting aside a deed or to be relieved against
a will on the ground of fraud, the instrument complained of may
be shewn to be a forgery: and the fact of forgery may, when thus
incidentally involved, be determined and relief given, founded upon
a criminal fact, although it would be altogether improper for it
directly to decide upon any such question upon a criminal charge, (u)

(?) Co. Litt.33; 1 Hall. Const. Hist. Eng. 395; Kenn's case,7 Co. 142; Hinks v.
Harris, 4 Mod. 182; Hemming v. Price, 12 Mod. 432; Haydon v. Gould, 1 Salk. 119;
Brownsword v. Edwards, 2 Ves, 245; Elliott v. Gurr, 2 Phili 16.—(r) AUeyne v. Grey,
2 Salk. 437; Mace v, Cadell, Cowp. 233; Stark. Evi. 4 pt. 218, 931.—(s) Chesel-
dine v. Brewer, 1H. & McH. 152; Ferlat v. Gojon, 1 Hop. 494.—(t)1 Bac. Abr. 571.
(tt) Barnesly v. Powel, 1 Ves. 120, 287; Stace v. Mabbot, 2 Ves. 553; Duntze v.
Levett, Fergusson's Rep. 63; Stark. Ev. 4 pt. 931; Peake v. Highfield, 1 Russ. 560.