of contract without its context, might seem to imply, that co-habitation as ing, though not follow well as consent was required to make a valid marriage. "Mared by coha riage or matrimony, he observes, "is an espousal de præsenti,

bitation.

A man says to a woman

for my

wife," and

answers,

and a cojunction of man and woman in a constant society;" but the very next sentence is a translation of a latin maxim, similar to the one quoted from the civil law. "Mutual consent," he says, "makes the marriage before consummation."

The language of Jacob, in his Dictionary, tit. Marriage, is less liable to misconstruction. He says, "Nothing more is necessary to complete a marriage, by the laws of England, than a full, free and mutual consent between parties" not incapable of entering into such a state. Wood, in his Institutes of the civil Law, p. 120, says, that "Espousals de præsenti, or marriage, is contracted by consent only, without carnal knowledge."

6.

HUNTZ V. SEARLY, 1814, 6 Binn. Penn. Rep. 403.

Tilghman, C. J. The defendant pleaded that he was married "I take you to the plaintiff, on which issue was joined, and it was objected that the judge ought to have directed the jury that the evidence the woman proved the marriage. The judge laid down the law correctly. "to be sure He told the jury that marriage was a civil contract, which might be completed by any words in the present time, without regard to form. He told them also, that in his opinion the words provferring to a ed did not constitute a marriage, and in this I agree with him. past illegal The plaintiff and defendant came to their lawyer, Mr. Watts, and cohabi on business, without any intention of marrying. They had long tation, this lived in an adulterous intercourse, although they considered

he is my

husband good c nough," re

marriage

is no mar

riage.

themselves as lawfully married. In fact they had entered into a marriage contract, which was void, because the defendant had a former wife living, from whom he had been separated by consent, but not legally. Some time before the parties came to Mr. Watts, a legal divorce had been pronounced, and Mr. Watts advised them to celebrate a new marriage. The defendant said, "I take you (the plaintiff) for my wife;" and the plaintiff being told that if she would say the same thing, the marriage would be complete, she answered, " to be sure he is my husband, good enough!" Now these words of the woman, do not constitute a present contract, but allude to the past contract, which she asserted to be a lawful marriage. Mr. Watts advised them to repeat the marriage in a solemn manner, before a clergyman, which was never done. So that under all circumstances, it appears to me, that what was done, was too slight, and too equivocal to establish a marriage.

7.

JACKSON, EX DEM. DIES AND WIFE V. WINNE, May T. 1831, 7 Wend. N. Y. Rep. 47.

Where a

went before

the express purpose of

to solemnizing a marriage, and the

upon

being told

her, upon

woman

Ejectment. The lessors of the plaintiff claimed to recover man and the premises in question in the right of Parthenia, the wife of woman Dies, as the heir at law of Enoch Copley, deceased. The de- a fence set up was, that the marriage of Enoch Copley, with the mother of Parthenia, was not valid. The facts in relation the marriage of Copley, and the mother of Parthenia, were somewhat peculiar. About the year 1800, Copley was arrested on a man old warrant issued on the complaint of the overseers of the poor, by the jus tice to join under the bastardy act, on a charge of having gotten Joanna hands with Desilva, the mother of Parthenia, with child; he was taken to the woman, dropped his the house of Joanna's father, from whence he went in company hand and. with Joanna, her father, mother and the constable, to the house turned from of a justice of the peace, to be married; the justice asked Cop- which the ley and Joanna if they consented to be married, and told them took it up to join hands; Copley dropped his hand and turned from Joanna; and held it during 'he she took it and held it, until they were pronounced man and ceremony, wife. Upon Copley refusing to take the hand of Joanna, the that the mar justice hesitated, but after a minute or two proceeded, conclud- iage was ed the ceremony, and pronounced them man and wife. Copley, during the whole time, said nothing. It was the custom of this justice, when he performed a marriage ceremony, to make a prayer, but upon this occasion he declined doing so; Desilva, the father of Joanna, however, made a prayer, and after the parties were gone, the justice told his wife, or the constable, that he did not feel right to make a prayer, and therefore put it on Desilva. Joanna returned to her father's house, but Copley did not return with her, and they never cohabited after their marriage.

It was insisted for the defendant, that the marriage between Copley, and the mother of Parthenia, was not valid.

Per Cur. To ascertain whether a valid marriage was actually solemnized between Copley and Joanna Desilva, we are to look at their situation when before the justice, and what took place on that occasion. The evidence is very saisfactory that they went before him, expressly for the purpose of solemnizing their matrimonial contract, and that Copley yielded his consent to it. We are bound to say that Copley's marriage with Joanna was valid.

it was held

valid.

IV. WHEN VOID FOR FRAUD, DURESS, LUNACY, &c.

1.

terror

is void.

FERLAT V. GOJON, 1825, 1 Hopkin's N. Y. Ch. Rep. 478. 493. A marriage Sandford, Chancellor. This is a case of a marriage procured procured by abdue by fraud. Miss Ferlatt was entrapped into a marriage with Go. andardjon, by artifices which he employed; and though she gave an apparent cousent, at the moment of the celebration, yet it fully appears, that this consent was feigned, and that it was the effect not of her choice, but of her terror. The clergyman who celebrated the nuptial rite, supposed, that he was marrying persons who were free and had freely contracted; and he was deceived. The complainant never consented freely, to become the wife of the defendant, she has never cohabited with him; and this marriage was a foul fraud practiced upon her by the defendant. Marriage is considered by our law, as a civil contract; and in this agreement, as in all others, the free consent of the parties is essential to the validity of the contract. Here, was no free consent, no voluntary contract; and this fraudulent marriage must be null. Still, a marriage in fact or in form, has taken place, between these parties, in the manner most usual in this state.

And such a

Upon the facts of this case, there can be no doubt, that this marriage would be treated as null, by every court of this state, in which its validity might be incidentally drawn in question.

The decree will declare, that the marriage between these parties, was obtained by the fraud of the defendant, and will adjudge it to be utterly null and dissolved.

2.

marriage A marriage procured by force or fraud, is void ab initio, and may be trea may be treated as null by every court, in which its validity may

ted as a nul

lity in eve be incidentally drawn in question. The basis of the marriage ry court, in is consent, and the ingredient of fraud or duress, is as fatal in this, as in any other contract, for the free assent of the mind to the contract is wanting; 2 Kent's Com. 67.

which its

validity may be inci dentally drawn in question.

The court

intercourse

3.

AYMAR V. ROFF, 1817, 3 Johns. Ch. Rep. 49.

Where a man was married to an infant under 12 years of age, forbid any who immediately declared her ignorance of the nature and conhusband of sequence of the marriage, and her dissent to it; the court, on a a female un bill filed by her next friend, ordered. her to be placed under its

between the

protection, as a ward of the court, and forbade all intercourse der twelve or correspondence with her by the defendant, under pain of con- who con tempt, as long as the order remained in force.

4.

years of age sented to a marriage be ing igno rant of the nature and

conse

and after wards dis

SELLARS V. DAVIS, March T. 1833, 4 Yerger's Tenn. Rep. 503. quence of it S. P. KENLEY v. KENLEY, 2 Yeates' Penn. Rep. 207. Per Cur. Green, J. A second marriage during the existence senting of the first marriage of one of the parties, is void to all intents and purposes.*

5.

from it.

A second marriage during the existence of

the first is

void.

THE INHABITANTS OF WEST CAMBRIDGE V. THE INEABIT. ANTS OF LEXINGTON, Oct. T. 1823, 1 Pickg. Mass. Rep. 505-6. Per Cur. Parker, C. J. We think it very clear, that by the And the laws of this Commonwealth, the marriage of the guilty party, a after a divorce a vinculo for the cause of adultery, if contracted within this state, would be unlawful and void.

marriage of

guilty par after a

divorce a vinculo.

6.

JACKSON, EX DEM. DIES AND WIFE V. WINNE, May T. 1831,

7 Wend. N. Y. Rep. 47.

Being un der arrest,

The court in this case decided, that the circumstance of a par- as the puta ty being under arrest as the putative father of a bastard child, tive father was not enough to avoid the contract of marriage on the ground is not suffi of duress.

7.

of a bastard

cient to avoid the contract of marriage on the ground

WIGHTMAN V. WIGHTMAN, 1820, 4 Johns. N. Y. Ch. Rep. 345, of duress. Kent, Chancellor. It is to plain a proposition to be questioned, The marri that idiots and lunatics are incapable of entering into the matri- iot or luna monial contract.

age of an id

tic is void.

8.

tence of

is absolute

But though marriage with an idiot or lunatic, be absolutely And no sen void, and no sentence of avoidance be absolutely necessary; yet, avoidance as well for the sake of the good order of society, as for the peace ly necessa of mind of all persons concerned, it is expedient that the nullity ry, yet it is expedient of the marriage should be ascertained and declared, by the de- that the nul

* No person can marry while the former husband or wife is living. Such second marriage is, by the common law, absolutely null and void; 2 Kent's Com. 69.

of a court of

competent

One not ha

cient under

cree of a court of competent jurisdiction; 2 Kent's Commentaries, 66.

9.

jurisdiction THE INHABITANTS OF MIDDLEBOROUGH V. THE INHABITANTS OF ROCHESTER, July T. 1815, 12 Mass. Rep. 364; 3d Ed. 373. Assumpsit for expenses, incurred by the plaintiffs in the supving suffi port of one Susannah Winslow, and her child, paupers, whose standing to legal settlement, was alleged to be in the town of Rochester. It was conceded, that the said Susannah still had her legal setid contract tlement in Middleborough, unless her marriage with E. Winslow was valid in law, so as to change her settlement to Rochescannot con ter, the place of the lawful settlement of E. Winslow.

be able to

make a val

property,

tract matri

mony.

A marriage

Per Cur. Parker, C. J. The verdict having established the fact, that E. Winslow, to whom the pauper was formerly married, was at the time of the solemnization, void of understanding, so as to be incapable of making a valid contract, judgment must be entered for the defendants; unless a marriage solemnized under such circumstances, will change the settlement of a female pauper from the place of her nativity to the place of her supposed husband's settlement. No authority has been cited, to show that such a marriage is valid, to any intent or purpose whatever. On the contrary, it is laid down by Blackstone, 1 Blac. Commentaries, 438; that like all other contracts, if made with a fool, or person non compos at the time of it, it is absolutely void. And it is but reasonable, that these unhappy persons, who are prohibited from making any binding contract, for the, merest pecuniary trifle, should be protected from the effects of a covenant of so high a nature; which could never be entered into by the other party, without some base or sinister design.

V. FOREIGN MARRIAGES.

1:

DUMARESLY V. FISHLEY, Spring T. 1821, 3 Marsh. Ky. Rep. p. 369.

Per Cur. Boyle, C. J. As the marriage was entered into in celebrated the state of Indiana, the question, in relation to its validity, state, must must, no doubt, be decided by the law of that state.

in a sister

bc tested by

the laws of that state.

A marriage

2.

PUTNAM V. PUTNAM, Sept. T. 1829, 8 Pick. Mass. Rep. 433. which is This was an appeal from a decree of the judge of probate,