Sec 265

Marriage, though founded on contract, is a fundamental institution whose modification is not within the power of individuals, nor, internationally, of particular states. A marriage, to be binding, must be of competent persons for life; and a sexual union dissoluble at will, or for a term of years, no matter what may be the terms applied to it by the parties, is not a marriage. Nor does the well-being of society permit that marriages should be dissolved by agreement, nor that one party to a marriage should be permitted to recover damages from the other for breach of the marriage contract.1 By the law of nations, also, based, in this respect, on the necessities of society, mistakes of one party as to the qualifications of another are no ground for dissolving marriages of competent parties when such mistakes do not go to identity. No matter how grossly one party (with this limitation) may deceive the other by false representations of property or standing, this will not avoid a marriage induced by such false representations.2 Nor is a marriage avoided by the fact that one party imposed on the other by a forged license, or by false publication of banns, supposing this does not by statute work an avoidance.3 But where a marriage was the result of a conspiracy for fraudulent purposes, the object being to impose the woman as a pauper on a particular town, she assenting under the effect of false pretences, it was declared void.4 - The prevalent opinion in England is, that ante-nuptial incontinence on the part even of the woman is no ground for either declaring the marriage null, or for granting a divorce.5 In Maryland, divorce is by statute authorized when the woman has before marriage been guilty of illicit intercourse with another man;6 and in Virginia, when the woman was a prostitute before the marriage.7 In Massachusetts, under a special statute authorizing decree of nullity in cases of fraud, nullity was decreed in a case where a young man was fraudulently induced to marry a pregnant woman much older than himself.1 And we may regard it as settled law that, where a woman with child by another man marries without notice of this fact a man supposing her to be chaste, this is a fraud which entitles the party imposed upon to have the marriage decreed null,2 though this does not hold good in cases where the man had sexual intercourse with the woman prior to marriage.3 But while (with this single exception) a marriage is not invalidated by the fact that it was induced by false representations, it is otherwise when there is an entire mistake as to the person. If A. should marry B. supposing B. to be C, the marriage would be void; there is no consent by A. to a marriage with B., and therefore no marriage between A. and B.4 - An action of deceit may be maintained by a woman against a man who fraudulently induces her to contract with him a void marriage.5

Marriage voidable when made under mistake as to person.

1 Beattie v. Ebury, L. R. 7 Ch. 777; 7 H. L. 102.

2 Hirschfield v. R. R., L. R. 2 Q. B. D. 1; Montrion v. Jefferys, 2 C. & P. 113; Byers v. Daugherty, 40 Ind. 198; Miller v. Proctor, 20 Oh. St. 442; Brown v. Rice, 26 Grat. 467; Townsend v. Cowles, 31 Ala. 428; Jones v. Austin, 17 Ark. 498.

3 Moreland v. Atchison, 19 Tex. 303. 4 Calkins v. State, 13 Wis. 389.

5 Story, Eq. sec 130; Shaeffer v. Sleade, 7 Blackf. 178; State v. Hol-loway, 8 Blackf. 45; Peter v. Wright, 6 Ind. 183; Cooke v. Nathan, 16 Barb. 342; Moreland v. Atchison, 19 Tex. 303; supra, sec 254.

6 Supra, sec 185, 205; Wh. on Ev. sec 931; Foster v. Mackinnon, L. R. 4 C. P. 704; Haigh v. Kaye, L. R. 7 Ch. 469; Chapman v. Rose, 56 N. Y. 137; Christ v. Diffenbach, 1 S. & R. 464; Fulton v. Hood, 34 Penn. St. 365; Green v. North Buffalo, 56 Penn. St. 110; Wharton v. Douglass, 76 Penn. St. 273; Gibbs v. Linabury, 22 Mich. 479; Terry v. Tuttle, 24 Mich. 206; Kellogg v. Steiner, 29 Wis. 626; Nance v. Lary, 5 Ala. 370; Shirts v. Over-john, 60 Mo. 305; and cases cited supra, sec 185. As to signature to wrong document, see supra, sec 185. As to negligence in such cases of party imposed on, see supra, sec 185.

1 Wh. Con. of L. sec 126.

2 Ibid.; Swift v. Kelly, 3 Knapp, 267, 293; Bishop, Mar. and Div. 6th ed. i. sec 205, 252, 355; Clark v. Field, 13 Vt. 460; Scott v. Shufeldt, 5 Paige, 43; Robertson v. Cole, 12 Tex. 356.

3 Supra, sec 180; R. v. Wroxton, 4 B. & Ad. 640; Dormer v. Williams, 1 Curteis, 870; Clowes v. Clowes, 3 Cur-teis, 185; Lane v. Goodwin, 4 Q. B. 361. The question, however, is one regulated by local statute, Bishop, Mar. and Div. 6th ed. sec 167.

4 Barnes v. Wyeth, 28 Vt. 41.

5 Graves v. Graves, 3 Curt. Ec. 237; 7 Eng. Ec. 425; Best v.. Best, 1 Add. Ecc. 411; 2 Eng. Ec. 158; Reeves v. Reeves, 2 Phill. 125, 127. To this effect see Leavitt v. Leavitt, 13 Mich. 452 (though see Dawson v. Dawson, 13 Mich. 335); Wier v. Still, 31 Iowa, 307; Schouler, Husb. and Wife, sec 27.

6 1 Md. Code of 1860, sec 25. 7 Code of 1860, sec 6. See Bishop, Mar. and.Div. 6th ed. \ 180i.