until repudiated by the parties, or actually nullified by the sentence or decree of a court of competent jurisdiction; while others are null and void from the beginning. There is a great difference between a void and voidable marriage, which it is important to notice. A void marriage is at all times a nullity, and binds no one, and is not valid for any legal purpose whatever; it leaves the parties to it in just the same situation, to all intents and purposes, as though there had been no pretended marriage at all. In such cases, if the parties cohabit, they are adulterers and fornicators, and their offspring, if they have any, are bastards. But a voidable marriage is valid for all civil purposes, and binding upon the parties so long as it is acted upon and recognized by them, and until its nullity is declared by a competent tribunal; and if the marriage has not been, dissolved by sentence or decree during the joint lives of the parties, it will be too late to apply for its avoidance, and consequently the survivor will be entitled to curtesy, dower, and the other rights of a surviving husband or wife. If the parties cohabit, their cohabitation, especially as to those who are innocent, is proper and lawful, and their offspring, if they have any, are respected as legitimate; and when the marriage is dissolved, the court usually decrees the custody of the issue to the innocent parent, and makes a provision for their education and maintenance out of the estate and property of the guilty party. When a voidable marriage is set aside, it is rendered void ab initio, with the exceptions sometimes in favor of the innocent party, and the issue of the marriage. (Perry v. Perry, 2 Paige's Ch. R. 501. Aughtie v. Aughtie, 1 Phillim. R. 201. Benham v. Badgly, 2 Gill's R. 622.) The difference between void and voidable acts is so important that it lies at the foundation of the rights of parties in all cases of marriage. The general rule is that all canonical disabilities make the marriage voidable, unless a statute otherwise direct, and not ipso facto void; but civil disabilities make the marriage void ab initio, not merely voidable. This is then generally the test: if the disability is canonical merely, the marriage is voidable only; but if civil, it is absolutely void. (Elliot v. Gurr, 2 Phillim. R. 16. Rex v. Wroxton, 4 Barn. & Ad. R. 640, S. C. 24 Eng. C. L. R. 131. Jaques v. The Public Administrator,

1 Brad. R. 499.)

§ 654. The canonical impediments to marriage are consanguinity; affinity, impotence and the like, and they render the marriage void

able only. Thus, in a case where the widow claimed dower, and it was urged against her demand that she was niece to her deceased husband's first wife, the objection was overruled by the court, because the marriage was not annulled during the husband's life. (Remington's case, Noy's R. 29.) And in another case, where parties within the prohibited degrees had married, and the marriage had not been declared void during the life of the wife, it was held that the hushand surviving was entitled to the administration of the wife's effects. (Elliott v. Gurr, 2 Phillim. R. 16.)

The civil impediments to marriage are prior marriage, want of age, idiocy, lunacy and the like, and these make the contract void ab initio. Those disabilities do not dissolve a contract already made, but they render the parties incapable of contracting at all; they do not put asunder those who are joined together, but they previously hinder the junction, and if any persons under these legal incapacities come together, it is a meretricious and not a matrimonial union, and, therefore, no sentence of avoidance is necessary. (Elliott v. Gurr, supra. Hemming v. Price, 12 Mod. R. 432.) A sentence of divorce in such cases is only declaratory that the marriage is dissolved, for it was absolutely void before, and either of the parties might marry again, though the other was living. (Ayliffe's Paregon, 229. Aughtie v. Aughtie, 1 Phillim. R. 201.) This is the view that the law takes of the subject, but strictly speaking a marriage entered into by a person under the age of consent, or by a lunatic, cannot be said to be void, becauso it may be ratified after the party becomes of full age, or sane, as the case may be, without any new celebration of the nuptials; simply a voluntary cohabitation of the parties after the disability ceases is generally a ratification of the marriage, and makes it valid. The same rule, as we have before seen, exists in the case of fear, error, or fraud; cohabitation after the duress is removed, or the error or fraud is discovered, makes the marriage good.

§ 655. With respect to the difference between void and voidable marriages, a very able and learned judge of North Carolina has said: "There is a distinction in the law between void and voidable marriages, when even they were regularly solemnized. The latter, which are sometimes called marriages de facto, are such as are contracted between persons who have capacity to contract, but are forbidden by law from contracting with each other; as to which, therefore, there was a jurisdiction in the spiritual courts to declare

the nullity of the marriage. But until the nullity was thus declared, as an existing marriage it was recognized as valid both in the canon and common law; and as there can be no proceeding in the ecclesiastical court against the parties after their death, or that of one of them, that event virtually makes the marriage good ab initio to all intents, and the wife and husband may have dower and curtesy, and the issue will be legitimate. (Co. Litt. 32, 33.) But when the marriage is between persons one of whom has no capacity to contract at all-as where there is a want of age or understanding, or where a prior marriage is still subsisting-the marriage is void absolutely and from the beginning, and may be inquired into in any court." (Gathings v. Williams, 5 Ired. R. 487.)

And it was said in a Pennsylvania case by the court: "In like manner do the books of common law resolve, in case of a divorce a vinculo for impotency, after three years' trial and examination, and sentence in the spiritual court for the perpetual impotency of generation. As it was in Bury's case (5 Coke's R. 98), who was so divorced, but afterward married another wife, and had children by her; upon which it was urged that, the church being evidently deceived as to his perpetual impotency, the divorce therefore was null; and if so, that the second marriage was unlawful, and the issue illegitimate. But the court resolved that, since there had been a divorce for frigidity or impotence, it was clear that each of them might lawfully marry again; and though it should be allowed that, the church appearing to have been deceived in the foundation of their sentence, the second marriage was voidable, yet till it should be dissolved it remained a marriage, and the issue during the coverture lawful."

But it was said in a case of impotence, disposed of in the English courts: "If the parties should be divorced, and both should have children by the second marriage, these second marriages must be set aside, and the first marriage declared valid, for, where the church appears to have been deceived, the sentence must be revoked." (Welde v. Welde, 2 Lee's R. 580, 586.) Upon this doctrine Sir John Nicholl very justly exclaimed: "What a state to place parties in! This is something in the text law which I cannot readily assent to belong to the law of England." (Norton v. Seton, 3 Phillim. R. 147.) And certainly no such doctrine is recognized in any of the American courts. But the common law rule in respect to void and voidable marriages is sometimes modi

fied or changed by the statutes of the state, so that a marriage voidable only in one place may be absolutely void in another, and vice versa.

§ 656. With respect to the evidence proper and requisite to establish the marriage of the parties, reference may be had to a previous section wherein the subject is partially treated. (Vide § 382.) It may be suggested, in addition, that marriage may be proved, like any other fact, by direct proof from witnesses who were present at the nuptials. But direct and positive evidence is necessary only in cases of bigamy and charges of adultery. (Patterson v. Gaines, 6 How. U. S. R. 550.) In all other cases marriage may be proved by cohabitation as husband and wife, reputation, and the like. The acts and declarations of a man and woman, and other attending circumstances during their cohabitation together, being a part of the res gesta, are proper evidence to show the character of their intercourse, whether it was matrimonial or meretricious. (Harman v. Harman, 16 Ill. R. 85. Henderson v. Cargill, 31 Miss. R. 367. Ford v. Ford, 4 Ala. R. 142. Thorndell v. Morrison, 25 Penn. R. 326. Kenyon v. Ashbridge, 35 ib. 157. In the matter of Taylor, 9 Paige's Ch. R. 611. Rose v. Clark, 8 ib. 574. Kahl v. Kraner, 7 B. Mon. R. 130. Jenkins v. Bisbee, 1 Edw. Ch. R. 377. Tilts v. Foster, Taylor's R. 121. And vide Evans v. Morgan, 2 Cromp. & Jerv. R. 453.) But, although the parties cohabit together, and, as regards society, hold themselves out as husband and wife, and other facts indicative of wedlock have been sworn to by witnesses, a court or jury may find that the cohabitation was illicit, and that no valid marriage had taken place. (Robertson v. Crawford, 3 Beavan's R. 102. S. C. 43 Eng. Ch. R. 101. Blackburn v. Crawferds, 3 Wallace's U. S. R. 175.)

An official registry of marriages kept in a church by the clergyman ministering there, or in case no such registry is kept, a private. memorandum, in which the minister, in the ordinary course of his business, has entered, or intended to enter, as it occurred, each marriage celebrated by him, seems to be admissible on a question whether such minister ever did or did not celebrate a particular marriage. (Blackburn v. Crawferds, supra.)

§ 657. It should be observed more distinctly that there is a dif ference, when the question of marriage or no marriage arises between the husband and third persons, and when it arises

between the husband and the wife themselves. Much slighter proof will render the husband responsible in the one case than the other. Upon gounds of public policy, a man cannot hold himself out to be that which he is not, without incurring all the responsibilities of his falsehood, a single admission of partnership or marriage may establish a liability where an innocent third person is concerned, and yet such an admission might not go very far to establish a marriage in a case between husband and wife, or in a case involving the legitimacy of the offspring of the parties. The admissions of parties in cases of marriage, as in all others, come within the class of direct proofs. If once established, they are of great weight, especially when made under circumstances which are against the interest, or may be turned to the disadvantage of the party by whom they are made.. Like other proof, they can only be repelled by superior proof of the same nature, amounting to a contradiction.

Again, it should be stated that the general and ordinary presumption of the law is in favor of innocence, in questions of marriage and legitimacy, when children are concerned. Cohabitation is presumed to be lawful until the contrary appears, and moreover, in cases of conflicting presumptions on the subject of marriage and legitimacy, that in favor of innocence must prevail. (Physick's appeal, 4 Am. Law Reg. [N. S.] 418, 423, 424. Sensor v. Bower, 1 Penn. R. 450. Hill v. Hill's Admrs. 32 ib. 511. Vide also Starr v. Peck, 1 Hill's R. 270.)

When there is no proof of actual marriage, it seems that cohab itation and reputation are necessary to ground a presumption of marriage; proof of cohabitation alone is not sufficient. Reputation must also be proved, which consists of the speech of the people who have an opportunity to know the parties, to be proved by them. It seems further by the same case, that marriage is in law a civil contract, not requiring any particular form of solemnization before officers of church or state, but it must be evidenced by words in the present tense, uttered for the purpose of establishing the relation of husband and wife, and should be proved by the signature of the parties, or by witnesses present when it was made. (Commonwealth v. Stump, 7 Am. Law Reg. [N. S.] 61. S. C. 53 Penn. R.)

§ 658. In regard to the effect of a sentence or decree nullifying a voidable marriage, Mr. Bishop observes: "The doctrine is a broad