incestuous by the law of Christianity, and as against natural law. And these exceptions relate to marriages in the direct lineal line of consanquinity, and to those contracted between brothers and sisters; and the exceptions rest on the ground, that such marriages are against the laws of God, are immoral, and destructive of the purity and happiness of domestic life. But I am not aware that these exceptions by any general consent among writers upon natural law, have been extended further, or embraced other cases prohibited by the Levitical law. This subject has been carefully discussed by Chancellor Kent, in the case of Wightman vs. Wightman, 4 Johns, Ch. 343; and while he is clear as to the exceptions before stated, he thinks, beyond them there is a diversity of opinion among commentators. 2 Kent Com., Lect. 26. See also Story's Conflict of Laws, Secs. 113, 114. There is also a provision in our statute, making marriages void in this state, where persons resident in the state, whose marriage, if solemnized here, would be void, in order to evade our law, and with the intention of returning to reside here again, go into another State or country and there have their marriage solemnized. Rev. Sts., Ch. 75, Sec. 6. The only object of this provision is, as stated by the commissioners in their report, to enforce the observance of our own laws upon our own citizens, and not to suffer them to violate regulations founded in a just regard to good morals and sound policy. As to the wisdom of this provision it is unnecessary here to speak. But the provision is noticed to show that it has not been overlooked in the consideration of the case at bar, which presents no such state of facts. In view of the whole matter, considering it as a part of the jus gentium, we do not feel called upon to extend the

exceptions further. By our statutes, the marriage contracted between Samuel Sutton, the plaintiff, and Ann Hills, his mother's sister, if celebrated in this State, would have been absolutely void. But by the law of England, this marriage, at the time it was contracted, viz., in November, 1834, was voidable only, and could not be avoided until a sentence of nullity could be obtained in the spiritual court, in a suit instituted for that purpose. See Poynter on Marriage and Divorce, 86, 120; 2 Stephen's Com., 280. In The Queen vs. Inhabitants of Wye, 7 Adolph & Ellis, 771, and 3 Nev. & P., 13, the Court of Kings' Bench affirmed this doctrine, and held such a marriage voidable only, and that, till avoided, it was valid for all civil purposes. Rosc. Crim. Ev. (2nd Ed.), 286. Since this marriage was contracted, the St. of 6 Wm. 4, c. 54 has been passed, making such marriages which should afterwards be celebrated, absolutely void. In the present case, the marriage of these parties was not void by the laws of England, and though absolutely prohibited by our laws, yet not being within the exception, as against natural law, we do not feel warranted in saying the parties are not husband and wife. The plaintiff, Samuel Sutton, sues on a promissory note given to the said Ann Sutton, and, as her husband, he can maintain an action thereon, in his own name alone, there being no other cause of objection raised than the one stated in regard to the legality of their marriage."

SECTION 15. COMMON LAW MARRIAGES.

A common law marriage is a marriage entered into, without any marriage ceremony by the agreement of the parties to assume the marriage relation.

The requisites for the validity of a common law

marriage are the agreement to assume the marriage relation and the assumption of such relation openly before the world.

A present contract for a common law marriage "per verba de praesenti", becomes binding at once; while a contract for a future common law marriage, "per verba de futuro cum copula", only becomes binding upon its consummation by sexual intercourse between the parties, and its validity even under such conditions is doubtful.

A common law marriage can be proved by general reputation, that is, by the parties holding themselves out to the world as man and wife. Such holding out must, however, be continuous and uninterrupted, acknowledging the relation at certain times and to certain parties, and denying it at other times and to other parties will not create a common law marriage.

When illicit sexual intercourse is proved to have existed between two parties, the presumption of the law is that the illicit character of the relations still continues.

The subject of common law marriages is discussed in the case of Duncan vs. Duncan, as follows:

"The proof of some of the most important of the facts above mentioned, rests mainly upon declarations made by Eliza, after the death of Alexander Duncan; and it is objected that evidence of this kind is unreliable and unsatisfactory. This is often, and perhaps, ordinarily so; but it is not always, or necessarily so, nor is it so in this case. She had ample means of knowing as to the facts of which she spoke; she made the declarations deliberately and repeatedly, under circumstances rebutting all suspicion of fraud or circumvention; and if they were otherwise, she had every

apparent interest so to declare. The declarations of a party, made under such circumstances, often constitute the strongest and most satisfactory evidence.

"We desire that it shall be distinctly noticed that this case presents no question as to the validity of a marriage contract (otherwise than in accordance with the provisions of our statute on that subject), per verba de praesenti, as if the parties being competent to contract the relation of marriage, the man shall say, in the presence of witnesses, 'I hereby take you for my wife;' and the woman shall say, 'I hereby take you for my husband.' The facts of the case make no such question; and we leave it where we find it.

"Nor is this a question as to the presumption of a marriage from reputation; or from circumstances, such as cohabitation, holding each other out as husband and wife, and the like. Such presumption, in the absence of evidence to rebut it, is often and properly made. But the question, as before stated, is simply this, whether a contract to marry per verba de futuro, followed by cohabitation as husband and wife, is in itself a marriage? For, in this case, the evidence of the fact is clear and explicit, and there is no room for presumption.

"The idea that a contract for a future marriage, followed by cohabitation as husband and wife, is itself a valid marriage at common law, seems to have obtained currency on the credit of remarks made by several elementary writers of distinguished learning and ability, and by certain judges of high character, speaking by way of obiter dicta, in cases in which this question was really in no way involved. But the better opinion now seems to be, that these remarks are unsupported by any case actually adjudicated and

entitled to be considered as authoritative; and that such a contract never was a good marriage at common law, either in this country or in England; and the mistaken doctrine seems to have originated, either in the inadvertant confounding of what might, in the absence of rebutting evidence, be good presumptive evidence of a marriage, with marriage itself; or from the fact that such a contract per verba de futuro, followed by cohabitation, was one of which the canon law, as administered by ecclesiastical courts in England, until restrained by statute, would enforce the specific performance.

"Chancellor Kent, 2 Com., 87, says: 'If the contract be made per verba de praesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to valid marriage in the absence of all civil regulations to the contrary, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesae.' In support of this proposition he cites no authority.

"Mr. Greenleaf, in his work on Evidence, Vol. 2, sec. 460, states the same doctrine in the same language, and cites Kent, Com., 87; Fenton vs. Reed, 4 Johns., 52, and Jackson vs. Winne 7 Wend. 47. Now, neither of these cases sustain the doctrine of his text. The former was a case simply where marriage was presumed, in the absence of evidence to the contrary from circumstantial evidence, such as cohabitation, reputation, acknowledgment of the parties, etc.; and the latter case was one of marriage per verba de praesenti.

"The same doctrine of marriage per verba de futuro is recognized in the remarks of Chief Justice Boyle in Demarsely vs. Fishley, 3 A. K. Marsh, 369, and in those, of Cowen, J., in Starr vs. Peck, 1 Hill, 270. But