IV. Annulment; termination. b. Grounds. by the court, where it was procured by and having been threatened by her mother fraudulent representations by the woman with a criminal prosecution if he did not that during the man's absence from the marry the daughter, voluntarily accompastate she had given birth to a child of nies the mother and daughter to another which he was the father, and which she pur- city and marries the daughter, is not entiports to exhibit to him, no such child ever tled to have the marriage annulled for duhaving been born, where the law regards ress. Thorne v. Farrar, 27 L.R.A. (N.S.) marriage as a civil contract, and the stat- 385, 57 Wash. 441, 107 Pac. 347. ute provides that it may be annulled when the consent of one of the parties is procured by fraud. Di Lorenzo v. Di Lorenzo, 63 L.R.A. 92, 174 N. Y. 467, 67 N. E. 63. s. The man is entitled to annulment of the marriage where the woman goes through the ceremony merely to secure his name with no intention of living with him, and leaves him immediately at its conclusion. Anders v. Anders, L.R.A.1916E, 1273, 224 Mass. 438, 113 N. E. 203. (Annotated) t. The intent, at the time of entering into a marriage contract, not to consummate the marriage by sexual intercourse, persevered in after the marriage, is within the operation of a statute allowing annulment of marriage for fraud. Millar v. Millar, L.R.A.1918B, 415, 175 Cal. 797, 167 Pac. c. A man who elects to stop a proseention for seduction by marrying the woman alleged to have been seduced, and giving bond for her support, pursuant to Ga. Penal Code 1895, § 388, cannot have the marriage declared void as procured by duress. Griffin v. Griffin, 16 L.R.A. (N.S.) 937, 130 Ga. 527, 61 S. E. 16. (Annotated) 394. u. The annulment of a marriage because the husband is constitutionally afflicted with syphilis, and in a state in which his chances of cure are very remote and doubtful, may be granted, under Mass. Pub. Stat. chap. 145, § 11, on the ground of fraud, where, with knowledge of his condition, he did not inform his wife in regard to it, and she, learning of it on the day of the marriage, soon after the ceremony, refused to live with him as his wife, and filed the libel for annulling the marriage before its consummation. Smith v. Smith, 41 L.R.A. 800, 171 Mass. 404, 50 N. E. 933. v. A contract of marriage will not be set aside upon an application by a husband on the ground of fraud, where it appears that he relied solely upon statements of the libelee and took no steps to determine their truth or falsity. Safford v. Safford, L.R.A. 1916F, 526, 224 Mass. 392, 113 N. E. 181. § 57. Duress. Loss of right to annulment by voluntary Duress as ground for divorce, see DIVORCE C. See also ante, § 56 f. a. A marriage will be annulled where the consent of the complainant was procured by violence or threats of such a nature as to inspire a just fear of great bodily harm in a mind of ordinary firmness. Qualey v. Waldron, 27 L.R.A. (N.S.) 803, 126 La. 258, 52 So. 479. (Annotated) b. One who, the day after having, under more or less compulsion of an attorney and d. One who marries a woman to procure his discharge from a lawful arrest under process charging him with her seduction, based upon probable cause, cannot annul the marriage upon the ground of duress. Thorne v. Farrar, 27 L.R.A. (N.S.) 385, 57 Wash. 441, 107 Pac. 347. e. Marriage under the provisions of a statute permitting one to escape prosecution for seduction by marrying his victim is not under duress. State v. English, L.R.A. 1915F, 977, 101 S. C. 304, 85 S. E. 721. f. The fact that a man's consent to marriage was reluctant and passive and was yielded upon consideration of the pressure which was brought to bear upon him by the wife's relatives, and of his duty to repair a wrong he had done her by seduction, is not sufficient ground for annulling the marriage. Collins v. Ryan, 43 L.R.A. 814, 49 La. Ann. 1710, 22 So. 920. (Annotated) g. A merely formal marriage entered into without intent to perform the marriage vows, but only to avoid imprisonment for bastardy and prosecution for seduction, and which is followed by a desertion of the wife, may be declared void by judicial decree at the instance of the wife. Henneger v. Lomas, 32 L.R.A. 848, 145 Ind. 287, 44 N. E. 462. h. A marriage will be annulled for coercion in its procurement, where it appears that two armed relatives of the defendant assaulted plaintiff in his office, for the purpose of inducing consent to the marriage, and that, after procuring the consent, such armed assailants constantly attended plaintiff until after performance of the marriage ceremony, especially where it appears that immediately following such ceremony the parties thereto separated. and the evidence raises no suspicion of improper relation between the contracting parties and only an inference of a promise of marriage. Qualey v. Waldron, 27 L.R.A. (N.S.) 803, 126 La. 258, 52 So. 479. 2. Lack of capacity to marry. police officer, gone to the home of a young § 58. Generally. woman who charged him with seduction, [ a. One who has been addicted to the habit IV. Annulment; termination. b. Grounds. of drinking intoxicating liquors to excess, she was above the age at which she can enwho is unable in conversation to concen- ter into a marriage contract at common trate his mind upon the subject under dis- law. Ex parte Hollopeter, 21 L.R.A. (N.S.) cussion, shows little intelligent interest in 847, 52 Wash. 41, 100 Pac. 159. his own business, is vacillating and uncertain, and shows signs of failing memory, may be found not to have had sufficient mental capacity to enter into a marriage contract, where, without preparation or prior engagement, he goes with a lady in an automobile to a neighboring town, stopping at a road house on the way, where he becomes intoxicated, from which condition he had not recovered when the ceremony was performed; and the marriage may be an nulled if he has not recovered from his intoxication while in the lady's presence sufficiently to ratify the contract before he finally leaves her. Dunphy v. Dunphy, 38 L.R.A. (N.S.) 818, 161 Cal. 380, 119 Pac. (Annotated) d. A statute forbidding under criminal penalty the performance of a marriage ceremony without the issuance of a license, and forbidding also the issuance of a license for the marriage of a minor without the consent of the parents or guardian, does not bring a minor within the operation of a provision authorizing the annulment of a marriage either party to which is incapable, from want of age, of contracting it. Browning v. Browning. L.R.A.1916C, 737, 89 Kan. 98, 130 Pac. 852 512. (Annotated) e. If fraudulent misrepresentations as to his age will, in any event, estop an infant from asserting want of age for the purpose of procuring the annulment of the mar$ 59. Physical incapacity. riage into which he has entered, the other Validity of marriage, see ante, § 31. party must have been led by the fraud to Perjury in accusing wife of malformation believe that no legal impediment to the in action for divorce, see CONTINUANCE marriage existed; and they will be unavailAND ADJOURNMENT, § 6 b. ing where the law required the consent of a. The words "physically and incurably the parents of an infant of the age he incapacitated from entering into the mar-represented himself to be, before the mar riage state," in Ala. Code 1686, § 2322. stat-riage could be solemnized, which was not obtained. Eliot v. Eliot, 15 L.R.A. 259, 81 ing a cause of divorce, mean impotency to Wis. 295, 51 N. W. 81. consummate the marriage. Anonymous, 7 L.R.A. 425, 89 Ala. 291, 7 So. 100. b. Pregnancy of a wife at the time of marriage does not constitute physical in capacity for which the marriage will be annulled under Cal. Civ. Code, §§ 58, 82; but such incapacity must be such physical defect or incurable disease as will prevent sexual coition. Franke v. Franke, 18 L.R.A. 375, 3 Cal. Unrep. 656, 31 Pac. 571. § 60. Infancy. Voidability of marriage of infant, see ante, $ 33. Alimony in suit to annul marriage, see ante, Support of children on annulment of mar- § 61. Insanity. Validity of marriage, see ante, § 35. Allowance of alimony and counsel fees in Appointment of guardian ad litem in action for, see INCOMPETENT PERSONS, § 29 j. Fraud in securing annulment of marriage with incompetent, see JUDGMENT, § 305 f. a. Mere weakness of mind is not a sufficient ground for annulment of a marriage, unless it amounts to idiocy or insanity. Svanda v. Svanda, 47 L.R.A. (N.S.) 666, a. A party need not wait until the stat-93 Neb. 404, 140 N. W. 777. utory age of consent before instituting an action to annul a marriage contracted while under the age. Eliot v. Eliot, 10 L.R.A. 568, 77 Wis. 634, 46 N. W. 806. (Annotated) b. An infant incapable for want of age of entering into a valid contract of marriage is incapable also of estopping himself, by a fraudulent declaration of his age at the time of entering into such contract, from asserting its invalidity in an action to annul it, which is brought under a statute permitting its annulment, with the sole proviso that there must have been no voluntary cohabitation after the attainment of the age of consent. Eliot v. Eliot, 15 L.R.A. 259, 81 Wis. 295, 51 N. W. 81. e. Parents cannot maintain an action to annul the marriage of their daughter which was contracted without their consent, when b. A marriage with a person who has, in appropriate proceedings, been found to be mentally imbecile, is absolutely void ab initio, and can be at any time so declared by the court. Sims v. Sims, 40 L.R.A. 737, 121 N. C. 297, 28 S. E. 407. (Annotated) c. A marriage is absolutely void, where one of the parties was insane at the time, and may be annulled by her heirs after her death where she was never in a condition to ratify the same. Orchardson v. Cofield, 40 L.R.A. 256, 171 II. 14. 49 N. E. 197. d. The courts are not authorized to decree a marriage contract void on the ground of the insanity of one of the parties, except for such want of understanding in such party as to render him or her incapable of assenting thereto. And though such person may be subject to some vice or IV. Annulment; termination. b. Grounds. uncontrollable impulse or propensity, yet if § 63. Invalid or ineffectual divorce. otherwise sane and able to understand the Validity of marriage of divorced person, see nature and obligations of the marriage con- ante, §§ 38-40. tract, a decree of nullity will not be granted. Lewis v. Lewis, 9 L.R.A. 505, 44 Minn. 124, 46 N. W. 323. (Annotated) § 62. Other existing marriage. Allowance of alimony and counsel fees in action to annul, see ante, § 51 e. Estoppel to deny previous marriage, see ESTOPPEL, § 146 a. a. The fact that at the time of her marriage a wife had a former husband, living and undivorced, is a ground for a decree of nullification. Browning v. Browning, L.R.A. 1916C, 737, 89 Kan. 98, 130 Pac. 852. b. A court of chancery has no authority to annul a marriage independently of statutory authority, on the ground merely that one of the parties was incapable of marrying because of a prior existing marriage. Kelley v. Kelley, 25 L.R.A. 806, 161 Mass. 111, 36 N. E. 837. c. The annulment of an invalid marriage cannot be decreed upon the application of a third party, on the ground that he is the lawful husband of the woman by a prior marriage which is still in force. Ridgely v. Ridgely, 25 L.R.A. 800, 79 Md. 298, 29 Atl. 597. a. A marriage is not dissolved by the fact that the wife, relying on the validity of a church divorce, became a party to another marriage ceremony. Hilton v. Roy. lance, 58 L.R.A. 723, 25 Utah, 129, 69 Pac. 660. b. That a marriage has taken place on the faith of a previous divorce does not preclude an inquiry by the courts of another state into the capacity of the divorced party, and thus into the validity of the divorce; and the marriage may be declared invalid if the divorce is one which would be decreed void if directly in issue. Adams v. Adams, 13 L.R.A. 275, 154 Mass. 290, 28 N. E. 260. c. Persons who have for years recognized the validity of a marriage contracted in good faith cannot be heard to have it decreed void and the children born of it illegitimate and without rights, on the ground that a divorce obtained by the wife from a former husband was invalid. Re Benton, 59 L.R.A. 135, 106 La. 494, 31 So. 123. d. A marriage in violation of a statute prohibiting a person from whom a divorce is granted to marry again within three years unless the former spouse is dead may be annulled at suit of the innocent party, where the statute not only declares that it shall not be lawful for such divorced per son to marry again, but imposes a severe penalty for violating the prohibition, although it does not expressly declare that the remarriage shall be void. Ovitt v. Smith, 35 L.R.A. 223, 68 Vt. 35, 33 Atl d. A marriage cannot be annulled because one of the parties was at the time married to another, if a decree has been entered by a court of competent jurisdiction, even after the second marriage was contracted, adjudging the prior one void ab initio because procured by duress, and it had never been ratified. Taylor v. White, L.R.A.1916C, 704, 160 N. C. 38, 75 S. E. 941. (Annotated)769. Validity of judgment against, see JUDGMENT, § 31. WILLS, § 20. Retrospective operation of married women's act, see STATUTES, § 301. As prostitute, see Power to make will, see Claims of, see CLAIMS, § 1 b. Homicide by deputy, see CONFLICT OF LAWS, § 104 a. Right of deputy to assist voters at congressional election, see ELECTIONS, § 53 b. Release of deputy on habeas corpus, see HABEAS CORPUS, § 39 c. a ing his official duties, is a breach of the peace affecting the authority and interests of the United States, and within the jurisdiction and power of the United States marshal or his deputies to prevent as peace officer of the national government. Re Neagle, 5 L.R.A. 78, 14 Sawy. 232, 39 Fed. 833, aff'd in 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658. the d. By U. S. Rev. Stat. § 788, U. S. Comp. Stat. 1901, p. 608, and the several provisions of the statute of California prescribing the duties of sheriffs, by that seetion made applicable to marshals, United States marshal is made a peace officer, and as such he is authorized to preserve the peace so far as a breach of the peace affects the authority of the United Liability of insurer for unauthorized burning of building by United States marshal, see INSURANCE, § 632. Removal of, from office, see OFFICERS, § States and obstructs the operations of the 66 e. § 2. Powers of. a. The marshal has no inherent authority to detain in his custody one who fails to pay a fine lawfully imposed upon him for violation of a city ordinance. Anderson v. Shackelford, L.R.A.1918A, 139, Fla., 76 So. 343. b. In matters of public peace, in which the national government is concerned, the United States marshals and deputy marshals, within the scope of their authority, are national peace officers, with all the statutory and common-law powers apper taining to peace officers. Re Neagle, 5 LR.A. 78, 14 Sawy. 232, 39 Fed. 833, aff'd in 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658. e. An assault upon, or an assassination of, a judge of the United States court while engaged in any matter pertaining to his official duties, on account or by reason of his judicial decisions or action in perform government and its various departments. Re Neagle, 5 L.R.A. 78, 14 Sawy. 232, 39 Fed. 833, aff'd in 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658. § 3. Liability of. Liability for arrest, see ARREST, § 14 h. 69; Liability on bond of, see BONDS, § 58 a, a. That the owner of a boat which has been seized by a marshal under a warrant MARSHALING ASSETS AND SECURITIES. § 1. Generally. § 2. Subjecting land to debts in inverse order of alienation. § 1. Generally. EXECUTORS AND ADMINISTRATORS, § 92. | benefit, so that those who hold in common a. The principle underlying the doctrine with him may have more to apply to their of marshaling funds is equality and equity. debts. Chemical Nat. Bank v. Armstrong, Malmgren v. Phinney, 18 L.R.A. 753, 50, 28 L.R.A. 231, 8 C. C. A. 155, 59 Fed. 372. Minn. 457, 52 N. W. 915. b. The doctrine of marshaling applies where the two funds or pieces of property belong to a common debtor. Gaines v. Hill, 39 L.R.A. (N.S.) 999, 147 Ky. 445, 144 S. W. 92. c. The rule of marshaling assets will not be enforced to the prejudice of the creditor against whom it is sought to be applied. Carter v. Tanners' Leather Co. 12 L.R.A. (N.S.) 965, 196 Mass. 163, 81 N. E. 902. d. One having a lien upon two funds for payment of his debt may be required to exhaust his remedy against a fund especially given for his security before resorting to that in which another, who has a lien upon one only, is interested. Wyman v. Ft. Dearborn Nat. Bank, 48 L.R.A. 565, 181 III. 279, 54 N. E. 946. e. The doctrine of marshaling assets and securities is that where a creditor has a lien on two funds in the hands of the same debtor and another creditor has a lien on one of them only, equity on the application of the latter will compel the former to make his debt out of that fund to which the latter cannot resort. Newby v. Norton, 47 L.R.A. (N.S.) 302, 90 Kan. 317, 133 Pac. 890. f. A creditor having security for his debt upon two or more collateral securities can be compelled by a creditor of the same debtor having security upon only one of such collaterals, to exhaust his remedy, in the first place, against the collaterals upon which the other creditor has no security. Re Meyer, 11 L.R.A. 841, 78 Wis. 615, 48 N. W. 55. g. One of two creditors, standing in equal equity, who has security upon two funds, will, at the instance of the other, who has security upon only one of the funds, be required to proceed primarily against the fund upon which the latter has no claim, and to shape his remedy so as to preserve, if possible, the equity of the one whose lien extends to but one fund. Boone v. Clark, 5 L.R.A. 276, 129 Ill. 466, 21 N. E. 850. h. Where a creditor holds two securities, one of which he has in common with others, and the other of which he holds for his sole use, he may be required to collect his debt first out of the security for his solel i. When one of two creditors of a common debtor has two funds out of which he may receive his pay, he must first resort to the fund upon which the other creditor has no lien, and exhaust that before encroaching upon the other. Third Nat. Bank v. Haug, 11 L.R.A. 327, 82 Mich. 607, 47 N. W. 33. j. Securities will never be marshalled to the injury of persons over whom the party invoking the doctrine has no superior equity. French v. French, 3 L.R.A. (N.S.) $98, 105 Va. 16, 52 S. E. 695. k. The principle of marshaling securities does not apply as between creditor and debtor, nor will it be applied to the injury of a prior creditor, or so as to delay him. or prevent him from realizing his whole debt, or so as to impair his security. Boone v. Clark, 5 L.R.A. 276, 129 Ill. 466, 21 N. E. $50. a 1. The rule that one of two creditors of common debtor who has two funds to which he may resort must first resort to the fund upon which the other creditor has no lien, and exhaust that, cannot be applied to work injustice or deprive one of a substantial legal right. Third Nat. Bank v. Haug, 11 L.R.A. 327, 82 Mich. 607, 47 N. W. 33: Re Hobson, 11 L.R.A. 255, 81 Iowa, 392, 46 N. W. 1095. m. If one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund in the first instance for satisfaction, if that course is necessary for the satisfaction of the claims of both parties, whenever it will not trench upon the rights, or operate to the prejudice, of the party entitled to the double fund. Re Hobson, 11 L.R.A. 255, 81 Iowa, 392, 46 N. W. 1095. n. Where property is encumbered as security for two debts, if the holder of the first lien is under a duty ultimately to pay the debt secured by the second, he cannot, in case the property is insufficient to pay both, set up the prior lien against his own creditor. Fletcher v. Sharpe, 1 L.R.A. 179. 116 Ind. 317, 17 N. E. 923. o. The principle of marshaling securities |