wife was living, yet it is clear to me that such fraud or deception does not furnish sufficient grounds for dissolving the marriage contract between the plaintiff and defendant, and for declaring it to have been void from the beginning. It was not a fraud in or as to a material matter or thing, within the ordinary or legitimate purposes of marriage, and the supposed intention or purposes of parties in contracting marriage. The plaintiff had a fancy that she would never marry a man who had been divorced from his wife. She had a right to indulge this fancy, but it does not follow, because she was deceived and induced unknowingly to marry a divorced man, that she should be indulged in such fancy afterwards to the extent of having her marriage judicially declared void. I find neither precedent nor principle for declaring a marriage void for fraud as to or in such a matter or thing."

But in Weill v. Weill (N. Y.) supra, a different view as to the nature of the fraud which will warrant the annulment of a marriage was taken, the court saying: "The canonist in the ecclesiastical courts was averse to a decree of annulment of marriage upon any grounds of fraud or ‘error,' as it was known in the courts spiritual, excepting it was of such nature as reached the essence of the consent of the parties. This was denominated 'error substantialis.' Such incidental mistake or fraud in the inception of the marriage relation, whether occurring through representation or suppression of facts, was called 'error accidentalis' or immaterial fraud, not striking at the capacity of the party to make the contract or his ability to perform its duties, nor involving the essence of the consent of the espoused. The common law of marriage and the chancery rules, apart from statute respecting its annulment, have not modified this doctrine to any great extent, but in practice and modern acceptance of grounds for annulment the matters involving the essence of the consent to the marital pact have been widened

in construction to include suppressions, evasions, representations of previous conditions of health, status, and even of wealth, to an extent which was unknown to any system of jurisprudence based on Roman law, whence most of the rules of civil marriage are derived. The rule now seems to be that if the fraud be such that, had it not been practised, the contract would not have been made, or the transaction of marriage completed, then it is material (error substantialis); but if it be shown or made probable that the same thing would have been done by the same parties in the same way if the fraud had not been practised, it cannot be deemed material (error accidentalis). Canham v. Barry (1855) 15 C. B. 597, 139 Eng. Reprint, 558, 3 C. L. R. 487, 24 L. J. C. P. N. S. 100, 1 Jur. N. S. 402. If one would go so far as to say that a woman would or would not be led to give or withhold her consent to a marriage on the single consideration that the man was was not married to another woman, and such former marriage annulled, then the suppression or concealment of such former status can furnish ground for the annulment of marriage for fraud, because, as matter of law, it can be material upon the question of consent, which is essential to the contract of marriage. I think this suppression does afford a right to an annulment, especially in those instances where no consummation of the marriage has taken place and the disturbing of the present status is not affected by those grounds of common policy which are actuating in the event of a consummated marriage."

or

In Roth v. Roth (1916) 97 Misc. 136, 161 N. Y. Supp. 99, a concealment by the woman of the fact that she had been divorced by a decree which forbade remarriage was held to be ground for annulment. The court said: "There is, it is true, neither allegation nor proof that defendant made any false representation as to her status, other than the fact that she had resumed her maiden name. under which she was married to

plaintiff. But the court is justified in concluding from the testimony that she did not disclose to the plaintiff the facts which rendered her incapable of contracting a valid marriage, or any fact which would put him on inquiry. Is the case, therefore, one which can be brought within the rule that suppression of the truth, where there was a duty to speak, is fraud, and were the facts concealed so material to the contract as to justify an annulment for fraud? Both these questions can, I think, be answered in the affirmative, and the same line of reasoning applies to both. Capacity to contract is one of the most important elements in marriage. The fact that one assumes to enter into the marriage state is, in itself, almost a representation that one is under no legal disability to do so; that is, no disability which would render the marriage void, as distinguished from voidable. The consequences of a void marriage, entered into innocently by one of the parties, are so serious to that party, and to the offspring, if any, of the union, and

so detrimental to the public welfare, that a solemn declaration by each party that there is no legal impediment is ordinarily required as part of the marriage service, and those present as spectators are invited to disclose any objection known to exist. While it is true, as stated in many cases, that a marriage will not be annulled for fraud, unless the facts misrepresented or concealed go to the very essence of the marriage contract, it needs no argument to show that facts which affect the validity of the marriage and the legitimacy of children do go to the very essence of the contract, and that the misrepresentation or concealment thereof 'constitutes ground for annulling the marriage. There is, therefore, no doubt in my mind but that the defendant was under a duty to disclose her former marriage and the fact that she had been divorced for her adultery and was incapable of marrying again in this state, and that her failure to do so amounted to the concealment of material facts."

W. A. S.

what constitutes.

2. Contempt of court signifies not only a wilful disregard or disobedience of its orders, but such conduct as tends to bring the authority of the court and the administration of the law into disrespect, or to defeat, im

pair, or prejudice the rights of witnesses or parties to pending litigations.

[See 6 R. C. L. 488; 2 R. C. L. Supp. 131.]

- direct contempt defined.

3. Direct contempt of court con

Statement by Adams, J.:

The plaintiff brought suit against the defendant to recover damages for the seduction of the plaintiff's daughter, and upon proceedings in arrest and bail the defendant executed a bond with his father, W. A. Hawkes, as surety. Later the plaintiff and W. A. Hawkes happened to meet each other in Hillsville, Virginia. There W. A. Hawkes compelled the plaintiff, by threat of immediate imprisonment (in default of bail), to affix his signature to a withdrawal of, or an agreement to withdraw, his suit against the defendant, then pending in Surry county, North Carolina. Upon plaintiff's affidavit a rule was served on said W. A. Hawkes to show cause why he should not be attached as for contempt. The respondent answered the rule and did not question the court's jurisdiction of his person. Several affidavits were filed, and at the hearing his Honor found in substance the following facts:

The plaintiff duly instituted the above-entitled action in Surry, where the cause arose, and obtained an order for the arrest of the defendant, and the defendant entered into bond in the sum of $5,000 with the respondent as surety. The sum

was duly served, and the pleadings were regularly filed. After the action had been instituted, and while it was pending, W. A. Hawkes met the plaintiff in Hillsville and told him that Hawkes and the clerk of the court of Carroll

county, Virginia, had found a bill of indictment pending in the court there, charging the plaintiff with burning Hawkes's barn some fifteen years before that time, and that, if the plaintiff did not withdraw the suit pending in Surry, Hawkes would have plaintiff arrested before he could leave town. Plaintiff could give no bail at Hillsville, and to avoid arrest and imprisonment he signed the paper referred to, purporting to be a receipt or agreement executed in consideration of $10. The plaintiff can neither read nor write, and did not understand the full meaning of the paper. plaintiff is satisfied that his daughter was debauched by the defendant. W. A. Hawkes for many years has had the general reputation of being a blockader, and now has the general reputation of intimidating witnesses and parties who appear against him, and of exerting a demoralizing influence on the entire community in which he lives. His general character is bad.

The

His Honor further found as a fact that procuring the plaintiff's signature to the paper by the means set out tended by its operation to embarrass and obstruct the due administration of justice in the pending suit, and pronounced judgment from which the respondent appealed.

Mr. J. H. Folger, for appellant:

The respondent has not been guilty of any of the acts enumerated in the statute defining contempt, or providing for punishment as for contempt.

Re Gorham, 129 N. C. 487, 40 S. E. 311; Re Oldham, 89 N. C. 26, 45 Am. Rep. 673.

Messrs. Carter & Carter, for appellee:

Contempt is the tendency to obstruct the administration of justice in a pending cause.

13 Cyc. 5, § 2.

To constitute constructive contempt of court some act must be done, not in the presence of the court or judge, that tends to obstruct the administration of justice.

13 C. J. p. 5, § 4, note 12.

The findings of fact by the judge are conclusive upon the court where there is evidence to support them.

Ex parte McCown, 139 N. C. 95, 2 L.R.A. (N.S.) 603, 51 S. E. 957; Ellison v. Rawleigh, 89 N. C. 125; Re Parker, 177 N. C. 467, 99 S. E. 342.

Every court of record has power to punish as for contempt when the act complained of was such as tended to defeat, impair, impede, or prejudice the rights or remedies of the party to the action pending.

Cromartie v. Bladen, 85 N. C. 215; Flack v. Flack, 180 N. C. 596, 105 S. E. 268; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528, 1 Am. Crim. Rep. 107; Dahnke v. People, 168 Ill. 102, 39 L.R.A. 199, 48 N. E. 137; 6 R. C. L. 288; State v. Doty, 32 N. J. L. 403, 90 Am. Dec. 671.

The power to punish for contempt extends to consequential, indirect, and constructive contempts, which obstruct the process, degrade the authority, or contaminate the purity of the court.

Neel v. State, 9 Ark. 259, 50 Am. Dec. 209; Wilson v. Irwin, 42 L.R.A. (N.S.) 723, note.

Adams, J., delivered the opinion of the court:

struct the administration of justice; and consequential, or indirect, or constructive contempt is an act having like tenden

tempt defined.

cy, done at a dis- indirect contance, and not in the presence of the court. The distinction between these classes is preserved in our statute law.

Acts punishable for contempt are set out in § 978, and acts punishable as for contempt in § 985, of the Consolidated Statutes. In case of the former the offender may be instantly apprehended and dealt with, but for the latter ordinarily a rule based upon affidavit is issued, requiring the suspected party to show cause why he should not be attached. But in either instance suitable punishment may be administered. In McCown's Case, 139 N. C. 95, 2 L.R.A. (N.S.) 603, 51 S. E. 957, Walker, J., in a learned and comprehensive opinion, said in substance that the power of the courts to punish for contempt is a part of the fundamental law; that it is not conferred by legislation, being an inherent power which the legislature can neither create nor destroy; and that it arises from necessity, because it is necessary to the exercise of all other powers. And Blackstone characteristically remarks that the process of attachment for contempt "must necessarily be as ancient as the laws themselves." 4 Bl. Com. 286.

The respondent does not controvert the power of the court to punish for contempt, whether direct or constructive; but to the judgment rendered in the case at bar he interposes two objections. He contends: (1) That the act complained of is not punishable as for contempt; and (2) that, if it is, the act was done outside the territorial jurisdiction of the court.

As to the first contention, the instant question is whether the means used by the respondent to effect dis

missal of the plaintiff's suit tended to impair or prejudice the rights or remedies of the plaintiff or to defeat the administration of justice. At common law contempt might be committed by treating with disrespect the rules or process of the court, or by perverting such process to the purposes of private malice, extortion, or injustice. 4 Bl. Com. 286. The common-law principle includes any attempt to intimidate or wilfully and unlawfully to prevent a person from instituting or defending an action in any court of record. Rapalje, Contempt, 27, note 1. To compass the same end our statute in like manner provides that every court of record shall have power to punish as for contempt any person whose unlawful interference with the proceedings in any action shall tend to defeat, impair, impede, or prejudice any party's rights or remedies, and that such power shall extend to all cases where, before the statute was enacted, attachments and proceedings as for contempt had been adopted and practised in courts of record for the enforcement of remedies or the protection of rights. Consol. Stat. § 985, subsecs. 3 and 7. This principle is applied in numerous decisions. It has been held, for example, that a person who presents to the court a fraudulent claim for the payment of money, or wilfully interposes a false answer, or decoys a witness, or dissuades him from attending the trial, or insults on account of an adverse verdict a juror who has been discharged, or wilfully does any other act which tends to defeat the rights of any party to a pending action, may be punished as for contempt. Re Fountain, 182 N. C. 49, 18 A.L.R. 208, 108 S. E. 342; State v. Moore, 146 N. C. 653, 61 S. E. 463; Re Young, 137 N. C. 553, 50 S. E. 220; Re Gorham, 129 N. C. 481, 40 S. E. 311; Re Toepel, 139 Mich. 85, 102 N. W. 369; Scott v State, 109 Tenn. 390, 71 S. W. 824, 14 Am. Crim. Rep. 292. Here it may be noted that the last paragraph of § 978 is applicable not to

constructive, but to direct, contempt. If the respondent by the direct application of overpowering physical force had obtained dismissal of the plaintiff's suit, his act would have been no more effective than intimidation or duress by a threat of imprisonment; and the written agreement procured under duress, although the court was not in session, was un- -compelling questionably an act dismissal of which tended directly to interfere unlawfully with the pending suit, and to impair the remedy and defeat the rights of the plaintiff.

case.

-act outside of

to punish.

The second objection involves a question of jurisdiction, but in our opinion it cannot avail the respondent, if it is true that the plaintiff's signature to the alleged agreement was procured in Virginia, and that territorial juristhe court had no diction-power extraterritorial jurisdiction; but since the respondent appeared in court, answered the rule, and made his defense, the question of jurisdiction is material only as it relates to the operation and ultimate effect of his wrongful act. It is perfectly obvious that the respondent's paramount object was to secure dismissal of the plaintiff's suit by fraud, deceit, and imposition on the court. The imposition was to be consummated in the county where the action was pending, through an unlawful scheme which was intended to be not only con-tinuing, but coextensive with the illegal purpose, and therefore operative in the superior court of Surry. The respondent's act is plainly embraced in the provisions

of the statute to which we have referred, and the mere fact of his absence at the time he put the agency in motion cannot absolve him from the imputation of constructive contempt.

There being no error in the record, his Honor's judgment must be affirmed.