sacred duty in the parent to take this precaution. And when we daily see the distress which might thus easily have been prevented, we cannot but wonder that these arrangements are not more frequently made.

2. Who may Marry. By our law, all male persons of eighteen and upwards, and all females of fourteen and upwards, not being nearer of kin than first cousins, (a) are capable of marrying. But if the male be under twenty-one, or the female under eighteen, the consent of the parent or guardian must be first obtained. (b) Nothing is said with respect to color; and of course blacks and whites may intermarry, if their tastes harmonize. (c) It is required, however, that in this, as in other contracts, each party should be capable of consent or compos mentis; and therefore idiots and lunatics cannot marry. (d) Again, the parties must be single, in order to marry. If, therefore, either party has a husband or wife living at the time, not only is the second marriage void, but the crime of bigamy is committed, which will be described hereafter. (e)

(a) It is now nearer of kin than second cousins. Act of May 6, 1869, and amendment of February 10, 1870.

(b) Shafher v. Ohio, 20 Ohio, 1. It is held that the age of consent at common law being twelve in females, and fourteen in males, a marriage between two infants, above those ages, respectively, without the consent of their parents or guardians, is, in the absence of any provision declaring it void, valid, although in violation of the specific regulations imposed by statute. Parton v. Hervey, 1 Gray, 119. Nor can the parent, in such case, maintain an action for enticing away his daughter, and procuring her marriage to a person of bad character. Hervey v. Mosely, 7 Gray, 479.

(c) By the act of January 31, 1861, 58 L. 6, now § 6987, Rev. Stats., marriage or carnal intercourse between persons of pure white blood, and persons having a distinct and visible admixture of African blood, was made an offence punishable by fine and imprisonment, and the minister knowingly solemnizing, and the judge knowingly issuing the license, were also punishable. It is held that State statutes prohibiting such marriages are not in contravention of the amendments of the constitution of the United States. or of the civil rights act passed in conformity thereto. Kinney v. Commonwealth, 30 Gratt. 858; State v. Hairston, 63 N. C. 451; Green v. State, 58 Ala. 190; Francois v. State, 9 Texas App. 144; State v. Bell, 7 Baxter (Tenn.), 9; Frasher v. State, 3 Texas App. 263.

(d) True v. Ranney, 21 N. H 52; Keyes v. Keyes, 22 N. H. 553; Middleborough v. Rochester, 12 Mass. 363; Crump v. Morgan, 3 Ired. Eq. 91; Foster r. Means, Spears (S. C.) Ch. 569; Rawdon v. Rawdon, 28 Ala. 565; Cole v. Cole, 5 Sneed, 57; Waymire . Jetmore, 22 Ohio St. 271; Powell v. Powell, 18 Kansas, 371. The court, though not expressly authorized by statute to declare the supposed marriage null, will in the exercise of its ordinary chancery power do so, in the interest of social order and public decency. Waymire v. Jetmore, 22 Ohio St. 271. The court will not, in the lifetime of both parties, decide the validity of such marriage, when its validity is made an issue in some collateral suit, if the statute provides for a direct proceeding between the parties for its determination. Stuckey v. Mathes, 24 Hun (N. Y.), 461; Williamson v. Williams, 3 Jones Eq. 446. It has been held that such marriage is not void ipso facto ab initio, and if not declared null during the life of both parties, it cannot afterwards be questioned. Wiser v. Lockwood, 42 Vt. 720; Sabalot . Populus, 31 La. An. 851.

(e) They must not be within the prohibited degrees of kindred. 2 Kent, Com. 81. A second marriage by a woman who has a husband living is absolutely void. Appleton v. Warner, 51 Barb. 270. In Kentucky, under 1 Rev. St. 380, a woman whose former husband has been absent from the State of his residence more than five years, and has not been heard from within that period, is competent to contract marriage. Strode v. Strode, 3 Bush (Ky.), 227. When a woman lived with her first husband a few months only, and not having heard from him for four years

3. Preliminary Steps. Before the marriage takes place, by our law, there must either be a publication of banns, or a license. Publication of banns consists in proclaiming the intention of marriage, in the presence of a religious congregation, in the county where the female resides, on two different days, the first being at least ten days before the marriage. A license is a written permission, obtained from the clerk of the court of common pleas of the county where the female resides, under the seal of the court. If either of the parties be a minor, and never married before, the clerk, before issuing the license, must be assured of the consent of the parent or guardian, either from his personal declaration, or from his written consent attested by two witnesses. And the clerk may put the applicant upon oath as to the legality of the marriage in other respects. The penalty for issuing a license, contrary to these provisions, is one thousand dollars.

4. Who may Solemnize Marriage. The persons who may here solemnize marriage are as follows: 1. Any regularly ordained minister of any religious society within the State; he having first obtained from the clerk a license for that purpose, which license is granted of course in the county where he officiates, upon exhibiting the proper credentials. Should he officiate in another county after procuring his license, he must apply to the clerk thereof, exhibiting his former license, and have his name entered as a person licensed. 2. Any justice of the peace within his county, who requires no special license. 3. Any religious society, agreeably to its forms and regulations. When parties marry, upon publication of banns, and without license, the person who is to solemnize the marriage must be satisfied that the banns have been duly published, and if either of the parties be a minor, he must have proof of the consent of the parent or guardian, in the same manner as the clerk when he issues the license. But where the parties marry upon license, a production of the license is sufficient. There is no pre

scribed form of solemnizing marriage; and it will be sufficient if the parties declare before the proper person that they will live together as man and wife. When the marriage has been solemnized, the person officiating must transmit a certificate thereof to the clerk of the county for record, within three months, under the penalty of fifty dollars; and this must be recorded under a similar penalty. The penalty for solemnizing a marriage contrary to these provisions is one thousand dollars; and the penalty for attempting to solemnize a marriage without authority, is five hundred dollars. But non-compliance with these requisitions does not make a marriage void. (a) With respect to foreign marriages, the rule is, that

married again, in the absence of any showing that in sixteen years thereafter the first husband had been heard from or had died, or been divorced, it was held that the presumption was that the second marriage was lawful. Kelly v. Drew, 12 Allen, 107.

(a) See Reeves's Dom. Rel. 196, 290; 2 Kent, Com. 89, 90; Milford . Worcester, 7 Mass. 48; Ligonia v. Buxton, 2 Greenl. 102; Wycoff v. Boggs, 2 Halst. 138; Lon

a marriage valid in the place where it was solemnized, is valid everywhere. (a)

donderry v. Chester, 2 N. H. 268; Starr v. Peck, 1 Hill, 270. Some of these authorities go so far as to say that a marriage according to the common law, which only requires the consent of the parties, would be valid, though none of the requisitions of the statute be complied with. But see the late cases of Queen v. Millis, 10 Cl. & Fin. 534; Jewell v. Jewell, 1 How. 219; Clayton v. Wardell, 4 Comst. 230; Clark v. Clark, 10 N. H. 383; Ferrie v. Public Administration, 4 Brad. Sur. R. 28; Caujolle v. Ferrie, 26 Barb. 177. s. c. 23 N. Y. 90. All that is necessary to make a valid marriage is a present agreement between parties competent to contract to take each other for husband and wife. Clayton v. Wardell, 4 Ñ. Y. 230. Mutual promises to marry in the future, though made by parties competent to contract, and followed by cohabitation as husband and wife, do not constitute a valid marriage. Duncan v. Duncan, 10 Ohio State, 181; Cheney ». Arnold, 15 N. Y. 345. But where parties competent to contract openly and mutually consent to a contract of present marriage, and afterwards live together as husband and wife, the fact that the contract was not made before any person authorized to solemnize marriage, will not invalidate it. Carmichael v. The State, 12 Ohio State, 553. See also Van Tuyl v. Van Tuyl, 57 Barb. 235; Bissell v. Bissell, 55 Barb. 325; Comm. v. Stump, 53 Penn. St. 132. Mere cohabitation as man and wife is not sufficient if it is shown that no marriage ceremony whatever was performed. A contract consented to by both parties must be proved. Goldbeck v. Goldbeck, 3 Green (N. J.), 42. In Maryland, it is held that some religious ceremony must be superadded to the civil contract. Dennison v. Dennison, 35 Md. 361. In California and Oregon, it must be before a person authorized to solemnize marriage, in the presence of at least two witnesses. Holmes v. Holmes, 1 Abb. U. S. 525. The intention to marry must exist. A ceremony performed in jest, though before a proper officer, who was in doubt at the time whether the parties were in jest or earnest, will not create the relation. McClurg v. Terry, 21 N. J. Eq 225. The lords in The Queen v. Millis were equally divided, and this equal division resulted in affirming that there could be no valid marriage unless contracted in the presence of a priest in holy orders; and that a dissenting minister not being episcopally ordained, a marriage solemnized by him was null. In Catteral v. Catteral, 1 Robertson, 580, Dr. Lushington refused to recognize the decision as going to that length, and held such a marriage in the colonies valid. But in Beamish v. Beamish, 9 H. L. 274, it was held that the law was established by The Queen v. Millis; though the Lord Chancellor declared that he would have held, prior to that decision, that the presence of a priest was not necessary; and Justice Willes, in his very learned opinion in answer to a question propounded by the lords, conclusively showed, that, down to the Council of Trent, a contract of marriage per verba de presenti, no c'erical or official person being present, was a valid marriage throughout western Europe; and that the rule laid down in The Queen v. Millis was law only because it was made so by the decision in that case. The Supreme Court of the United States, in Meister v. Moore et al., 96 U. S. 76, held that a marriage by declaration of the parties and cohabitation is a good common-law marriage; and that statutes merely prescribing formalities for marriage, and requiring their observance under penalty, do not invalidate the common-law marriage.

(a) The law was declared as stated in the text down to the case of Brook v. Brook, 9 House of Lords Cases, 193, decided in 1861, though Lord Brougham, in the earlier case of Warrender v. Warrender, 2 Clark & Fin. 529, suggested that the statement might be qualified, as was afterwards declared in Brook v. Brook. In Brook v. Brook the House of Lords held that "the forms of entering into the contract of marriage are regulated by the lex loci contractus; the essentials of the contract depend upon the lex domicilii. If the latter are contrary to the law of the domicile, the marriage (though duly solemnized elsewhere) is there void. The marriage of a man with the sister of his deceased wife being prohibited by our law, such a marriage, contracted by British subjects, temporarily resident abroad but really domiciled in this country, though valid in the foreign country and duly celebrated according to the forms required by the law of that country, is absolutely void here." Subsequently, the divorce court in full bench, whose decisions at that time were reviewable only by the House of Lords, held, in Simonin v. Mallac, 2 Sw. & Tr. 67, that foreigners who were incapable of being united in marriage in the country of their domicile could, while temporarily residing in England, contract there a marriage valid in England; so that they would be lawful husband and wife in England, while their marriage would be a nullity in their domicile. Subsequently, the court of appeal in Sottomayor v. De Barros, L. R. 3 Prob. Div. 1, reversing the decision of the divorce court, held,

§ 103. Rights and Liabilities of the Husband. The rule formerly was, that the husband has the same power over the person of the wife as over a child, servant, or apprentice; and, upon the same principle, the right of a master. Accordingly, if necessary in his opinion, he might administer reasonable personal chastisement. But in this country we recognize no such doctrine. A husband has no right to strike his wife, whatever may be the provocation. Against such indignity she has a twofold security. She may either have him put under bonds to keep the peace, or she may apply for a divorce. The limit of his power over her person is this: If she manifest a disposition to squander or destroy property, he may use the means necessary to prevent her; and if she leave him without cause, he may bring her back; for he has a right to her society, which he may enforce either against herself or any other person who detains her. He may also have his action for damages against any person who abducts or seduces her. (a) And it is said that if he should take the life of a person found in the very act of criminal connection with her, it would be excusable homicide. But his power over her property is much more extensive than over her person. I have already said that property may be so secured to the contrary to Simonin v. Mallac, that such marriage would be void in England as well as in the domicile of the parties; would be void everywhere. The case on being heard again in the divorce court, upon different evidence, Sottomayor v. De Barros, L. R. 6 Prob. Div. 94, Sir James Hannen boldly criticised the judgment of the Court of Appeal, declaring it without precedent or warrant in English law.

In the United States the rule declared in Brook v. Brook was followed in Kinney v. Commonwealth, 30 Gratt. 858. And the same rule was held in Williams v. Oates, 3 Ired. 535; State v. Kennedy, 76 N. C. 251; Dupre v. Boulard's Executor, 10 La. An. 411; and State v. Bell, 7 Baxter (Tenn.), 9.

In Kentucky it was held that if persons who are incapacitated to intermarry by the law of their domicile go into an adjoining State or country, where no such incapacity is recognized, and are there married in accordance with the law of such State or country, the marriage, being valid by the lex loci contractus, though void by the law of the domicile, is valid in other States. Dannelli v. Dannelli, 4 Bush, 51.

In Massachusetts the rule is the reverse of that in Brook v. Brook. The courts there hold that where citizens of Massachusetts, who by the law of Massachusetts cannot intermarry, go, for the purpose of evading the law of the State, to another State where no such incapacity is recognized, and are there married in accordance with the law of such State, the marriage is valid not only in other States, but also in Massachusetts. Medway v. Needham, 16 Mass. 157; West Cambridge v. Lexington, 1 Pick. 506; Putnam v. Putnam, 8 Pick. 433; Commonwealth v. Lane, 113 Mass. 453. Lord Cranworth having in Brook v. Brook criticised the earlier Massachusetts cases, Chief Justice Gray, in Commonwealth v. Lane, returns the compliment with interest in an exceedingly able analysis of the opinions in Brook v. Brook. In New York there was no decision by the Court of Appeals till 1881. Before that there were decisions by the inferior courts, one half holding with the English rule, the other half with the Massachusetts rule. In Van Voorhis v. Brintnall, 86 N. Y. 18, the court of appeals, reversing the decision of the superior court of New York, adopted fully the rule established in Massachusetts.

In the United States, therefore, when two persons intermarry in a State other than their domicile, the marriage, if in accordance with the law of such State, is valid everywhere, unless the parties are by the law of their domicile incapacitated to intermarry. In such case the marriage is valid every where except in the State of their domicile; and some States hold it valid, others hold it void, in their domicile. The rule declared in Sottomayor v. De Barros, L. R. 3 Prob. Div. 1, is not law in the United States.

(a) He may have an action against one who harbors her, if such person has acted maliciously, and not from motives of humanity. Campbell v. Coster, 3 Daly (N. Y.), 165. So, too, against a druggist selling her opium, knowing that she used it habitually to the injury of her health. Hoard v. l'eck, 56 Barb. 202.

wife in the form of a jointure or settlement, by means of trustees, that neither the husband nor his creditors can control it; but I shall here suppose that no such precaution has been taken. Then, by marriage, all her personalty, except choses in action, becomes at once absolutely his. And, as to choses in action, they become his by reducing them to possession, which he may do, by suit or otherwise, independently of her control. He may, if he choose, join her name in the suit, but he is not obliged so to do; and the only effect of so joining her would be, that if she survived him, and the judgment or decree be not collected, it will become hers by survivorship. If he was himself the debtor, the marriage cancels the debt. If she has earned money by her own labor during the marriage, he may collect it. Thus her personalty is entirely at his control. (a) But with respect to her realty, the case is somewhat more favorable. He only has control of the income. (b) Without her consent, he cannot encumber or dispose of the property itself, beyond his own life. (c) In this one instance, the law gives her a veto upon this power; for he cannot compel her to give consent. And, on the other hand, by marriage, the husband becomes liable for the support of the wife; but this liability extends only to necessaries suited to her condition, and not to elegancies or luxuries. Nor does it depend at all upon the amount of property he obtains by her. To the extent of necessaries which he does not supply, she may contract debts, and he will be bound for them, even though he should give notice to the contrary, unless she had eloped, (d) and this is the only instance where she can

(a) Dunseth v. Bank of U. S. 6 Ohio, 76; Ramsdall v. Craighill, 9 id. 197; Curry v. Falkinson, 14 id. 100; Dixon v. Dixon, 18 id. 113. Where the husband has received his wife's choses in action in a fiduciary capacity, he may reduce them into possession by acts showing his intention to do so. Walden v. Walden, 7 Ohio State, 30. The husband cannot by an assignment of his wife's reversionary or contingent interests, or choses in action, vest the right to them in the assignee, inasmuch as they are incapable of an immediate reduction to possession. Needles v. Needles, 7 Ohio State, 432. Contra, Lynn v. Bradley, 1 Met. (Ky.), 232; Hill v. Townsend, 24 Texas, 575. These rules as to the personalty of the wife are all changed now in Ohio, by statute. See note at end of chapter.

(b) By statute in Ohio his interest cannot be reached by his creditors. Nor in Massachusetts will it pass to his assignees in insolvency. Lynde v. McGregor, 13 Allen, 182.

(c) But if they unite in selling land, and the proceeds be invested in other land, taking the title to the husband, it becomes his and descends to his heirs. Ramsdall v. Craighill, 9 Ohio, 197. A deed by a married woman, without her husband's joining with her, is a nullity, and as a contract for a conveyance is alike void. Miller v. Hine, 13 Ohio State, 565; Moore v. Rake, 2 Dutcher, 574; Richards v. McClellan, 29 Penn. State, 385; Beale v. Knowles, 45 Maine, 479; Eaton v. George, 42 N. H. 375; Gray v. Mathis, 7 Jones's Law, 502; Camden v. Vail, 23 Cal. 633. In some of the States, it is held to be a sufficient joining, if the husband executes the deed. Woodward r. Seaver, 38 N. H. 29; Stone v. Montgomery, 35 Miss. 83. But, generally, he is required to join in the granting clause. It is not sufficient that an attorney in fact, having a general power from the husband to convey his lands, joins in the wife's deed. Toulmin v. Heidelberg, 32 Miss. 268.

(d) Shaw v. Thompson, 16 Pick. 198; Sykes v. Halstead, 1 Sandf. 483; Read v. Legard, 4 Eng. Law & Eq. 523; Howard v. Whetstone, 10 Ohio, 365; Cummings v. Aldrich, 9 Foster, 63; Blowers v. Sturtevant, 4 Denio, 46; Cooper v. Loyd, 6 C. B. (N. 8.) 519; Cunningham v. Reardon, 98 Mass. 538; Reynolds v. Sweetzer, 15 Gray, 78; Hullz v. Gibbs, 66 Penn. St. 360. It is not necessary that the party furnishing