against interference with plaintiff or her molestation by defendant.

As appears from the allegations of the bill, the ceremony had its inception in jest, without serious wish, desire, or intention to enter into a matrimonial contract, valid and binding upon the parties thereto, or either of them, and they did not intend or contemplate consummation of such a contract, or the assumption of the duties, obligations, rights, privileges, and consequences usually pertaining to the marriage relation, and have not since the ceremony done or performed any act indicative of an intention to ratify or consummate the pretended marriage, and do not now desire its consummation or the exercise of such rights, obligations, duties, and privileges. The bill further alleges that plaintiff was persuaded and induced to go through the marriage ceremony by the false and fraudulent representations of defendant, believed and relied on by plaintiff, without knowledge of their falsity, accompanied also by the assurance that the performance of the ceremony was to be treated as ineffectual for any purpose, and the only purpose intended was to avoid detriment to defendant's business and loss of the respect of his friends and associates, which would result from plaintiff's refusal to go through the ceremony. The marriage license was obtained and the ceremony performed without the knowledge or consent of the parents of the plaintiff, with whom and under whose guardianship she as a minor then resided, and since has continued to reside, notwithstanding the pretended marriage defendant.

to

These allegations and others of like kind and character the bill amplifies with the perspicuity requisite to constitute good pleading, and with sufficient certainty to warrant annulment of the marriage vows, if otherwise plaintiff is entitled to the relief prayed by her. Wherefore the only question is whether the marriage ceremony so performed, with the apparent, though, according to the bill,

suit for the purpose of affirming or annulling a marriage supposed to be void, or as to the validity of which any doubt exists, and counsel do not question such right. McClurg v. Terry, 21 N. J. Eq. 225; Clark v. Field, 13 Vt. 460. According to the allegations of the bill, the responses made to the questions propounded as part of such ceremonies, as "understood, intended, and contemplated both by your complainant and the said defendant at the time the said ceremony was performed,

were to impose no marital duties or obligations and confer no marital rights" upon either of them, and "the relation of husband and wife was not by virtue of such ceremony to be assumed, undertaken, or contracted for."

While no animadversion upon such frivolity probably could be too severe, such condemnation now would avail nothing and be utterly useless. Yet it is relevant to remark that vain, meaningless, false, and fraudulent replies to inquiries made to test the sincerity of the parties are especially important upon the question as to the assumption of marital rights, privileges, obligations, and duties. The object of the entire ceremony is to bind the parties by a sacred covenant, one thereafter not to be trifled with. Good faith, honest motives, frankness, and candor are essential to the validity of any contract, whatever the object may be, and the books are replete with cases avoiding contracts of all kinds where these elements are lacking. Happily, there are but few decisions annulling marriage vows on these grounds, not because courts have refused to grant relief

in appropriate cases, but because it is seldom that such frivolity occurs in a matter of such serious concern to the parties interested.

-validity.

As Bishop in his work on Marriage, Divorce & Separation, vol. 1, § 296, says: "The status of marriage is entered through the door of a contract not essentially differing from other contracts. It is that circumstance without which this status is never superinduced upon the parties."

And in § 298 he says: "The forms are not a substitute for it [mutual consent to enter into the status]. They are but modes of declaring and substantiating itmatters of publicity or evidence. If they are gone through with without the added consent, the marriage is a nullity, both as to the parties and to third persons.'

To constitute a valid marriage, the parties must possess the legal qualifications, and enter into a mutual agreement or consent to the marriage relation as contemplated by law, "uninfluenced by fraud or error in any particular deemed fundamental, or by duress." Spencer, Spencer, Domestic Relations, § 37.

According to these and other authors and decisions dealing with the subject, mutual consent and bona fide agreement of the parties, freely given, and with the intention of entering into a valid

-necessity of consent.

status of marriage, are fundamental and essential elements, and without them the marriage is invalid (McClurg v. Terry, and Clark v. Field, supra; Dorgeloh v. Murtha, 92 Misc. 279, 156 N. Y. Supp. 181; Ford v. Stier, L. R. [1896] Prob. 1; Hall v. Hall, 24 Times L. R. 756; 1 Bishop, Marr. Div. & Sep. §§ 337, 338; Spencer, Dom. Rel. § 82; 26 Cyc. 832, 833), unless consummated by cohabitation as husband and wife, or otherwise ratified or confirmed (Brooke v. Brooke, 60 Md. 524).

In McClurg v. Terry, supra, the New Jersey court considered facts and circumstances very similar to

those alleged by plaintiff in this cause, and, as particularly appropriate here, we quote as follows from 21 N. J. Eq. 227: "Mere words, without any intention corresponding to them, will not make a marriage or any other civil contract. But the words are the evidence of such intention, and, if once exchanged, it must be clearly shown that both parties. intended and understood that they were not to have effect. In this case the evidence is clear that no marriage was intended by either party; that it was a mere jest, got up in the exuberance of spirits to amuse the company and themselves. If this is so, there was no marriage."

And in Dorgeloh v. Murtha, 92 Misc. 279, 156 N. Y. Supp. 181, cited, likewise involving similar facts, the New York court states the rule thus: "The law considers marriage in the light of a civil contract, as to its inception. In the marriage contract, the same as in that of any other, consent is a necessary element. Consent, which is the essence of all ordinary contracts, is necessary to the validity of the marriage contract. The minds of the parties must meet in one common intention. Mere words, without the intention corresponding therewith, will not make a marriage or any other civil contract." "It is quite true that there was a formal ceremony, but it is also patent from the evidence that there was no intention whatever on the part of either plaintiff or the defendant that it should be considered as a valid and legal marriage.

It was a mere subterfuge, gotten up for the purpose of enabling the plaintiff to obtain a marriage certificate which would be of assistance to her in obtaining a theatrical engagement."

As neither plaintiff nor defendant, according to the allegations of the bill, gave their free and willing consent to be bound by the ceremony, or assume towards each other the relation ordinarily implied in its performance, or exercise the duties, obligations, rights, and privileges incident to the relation, and have not

since done any act or performed any such duties or obligations, or exercised such rights and privileges, thereby or otherwise indicating a purpose so to be bound, there appears no reason for refusing to order the annulment of the pretended marriage, and thereby remove any impediment that might otherwise exist by way of embarrassment of any kind or character as the legitimate consequences of the imprudent conduct of the parties, provided, of course, the facts so alleged are proved. Section 8, chap. 64, Code (§ 3643).

-effect of mock marriage.

As the fraudulent representations or conduct of either party, when proved, vitiate a contract, whatever the subject of the negotiations may

be, so such representations and conduct have the same force and effect upon the validity of a contract of marriage; certainly so, if not consummated, and perhaps, also, even after its consummation, unless the plaintiff has in some manner waived the fraud, or done or performed some act operating as estoppel against subsequent reliance upon it in a court of equity. The application of this doctrine is so general and universal as not to necessitate further discussion.

For these reasons we enter of record our disapproval of the Circuit Court's ruling upon the demurrer, and hold the bill legally sufficient,

and direct certification of the result to that court, as required by statute. Williams, P., absent.

Validity in general.

The few authorities support the conclusion reached in the reported case (CROUCH V. WARTENBERG, ante, 212) to the effect that a marriage ceremony, though legally performed, does not constitute a legal basis for the marriage status, where it is entered into in jest, with no intention of creating a contract, and with the understanding that the parties are not to be bound thereby, or assume toward each other the marital relation.

Thus, in McClurg v. Terry (1870) 21 N. J. Eq. 225, which is quoted in the CROUCH CASE, it was expressly held that a marital status was not created by the fact that a marriage ceremony was legally performed, where it also clearly appeared that the marriage was entered into in jest without intent upon the part of either party to consummate a contract of marriage.

And that a marriage in masquerade, where the parties do not know with whom they are united, cannot be supported in the ecclesiastical court in a suit of jactitation or for restitution of conjugal rights, see Reg. v. Mills

(1844) 10 Clark & F. 534, per Lord Campbell, at p. 785, 8 Eng. Reprint, 937.

And see Dorgeloh v. Murtha (1915) 92 Misc. 279, 156 N. Y. Supp. 181, as quoted in the reported case (CROUCH v. WARTENBERG), but in which, although the marriage was annulled, it appeared that, while the man regarded the whole thing as a joke, there was an actual ceremony performed by a qualified person so that the woman might obtain a marriage certificate for business purposes, it also appearing that both parties were under the impression that a valid marriage was not actually taking place, that there was an absolute lack of intent to enter into a valid marriage, and that the parties thereafter always continued to regard the affair as of no binding effect.

Annulment.

It has been held that a court of equity has power to annul a marriage entered into in jest, and without intent upon the part of either party of creating a marital status. McClurg v. Terry (N. J.) supra; CROUCH v. WARTENBERG (reported herewith).

In McClurg v. Terry (N. J.) supra, the court said: "The fact of marriage can be determined by any court where the question arises, from a justice's court in a suit for goods furnished to the wife, to this court on a question of alimony and the legality of marriage, and the question whether the ceremony was in jest or earnest could in such cases be determined. But the finding would only bind the parties to that suit. Another suit tried the next day between other parties might reach a different result, and the judgment in the first suit could not be received even as prima facie evidence in the subsequent suit. It could not nullify the marriage relation. But the proceeding is in rem, strictly socalled; it is upon the matter of the marriage, to determine simply whether such marriage exists, and not whether a debt or alimony is due, which depends upon the fact of the marriage. And when a determination is had in a proceeding in rem, it binds the whole world and not only the parties to it; it makes it a marriage or no marriage. Marriage itself is a proceeding in rem, and constitutes the parties man and wife; divorce is, also; it dissolves an existing marriage. Until the present Constitution was adopted, the legislature had and exercised the pow

er of divorce and declaring the marriage contract void. A statute for that purpose operated in rem, and dissolved the relation. The Constitution took away that power and vested the chancery powers in the chancellor. Among these powers was that of granting divorces as then established. A literal construction of these acts and constitutional provisions would not seem to vest in this court the power of declaring marriages void, except in the cases specified, and yet a liberal construction, guided by what was evidently the design of these provisions, might extend the jurisdiction of this court to this class of cases. In every well-ordered government it is proper that there should be some tribunal or power competent finally to determine the validity of so important a matter as marital relation, so that parties may know their obligations and rights, and that this should not be left to be determined differently by each court, where the question might incidentally arise. And when the power over this subject was taken from the legislature, it is fair to infer it was intended to be left with this court, upon which jurisdiction over most causes of divorce had been directly conferred." G. J. C.

posit box which the debtor rents of it, where the statute provides that when jurisdiction is conferred on a court, all the means necessary to carry it into effect are also given.