establishing the legitimacy of the offspring. When the celebration of a marriage is once shown, the contract of marriage, the capacity of the parties, and in fact everything necessary to the validity of the marriage, in the absence of proof to the contrary will be presumed. Caujolle v. Ferrie, 26 Barb. 177; Fleming v. People, 27 N. Y. 329; Strode v. Magowan, 2 Bush. 627; 1 Bish. Mar. & Div., § 457; Laws on Pres. Ev. 104-107; People v. Calder, 30 Mich. 85; State v. Kean, 10 N. H. 347.

The presumption of the capacity of Lewis to enter into the marriage contract with Zerelday Cacey, December 8, 1843, is overcome by proof of his prior marriage in Kentucky, and that his wife by that marriage was still living and undivorced at that time. This proof established the fact that the second marriage in 1843, was a nullity, conferring no marital rights whatever. A simple marriage ceremony will not make a man and woman husband and wife. Capacity and consent are absolutely essential, but celebration only contingently so. Thompson v. Thompson, 114 Mass. 566; Merriam v. Wolcott, 61 How. Pr. 377; Rundle v. Pegram, 49 Mass. 751. Nor can sexual intercourse, which the parties know to be contrary to law, form even an element of marriage. Peck v. Peck, 12 R. I. 485; Port v. Port, 70 Ill. 484.

This formal marriage being void, do the facts and circumstances proved create a presumption of a lawful marriage of Lewis and Zerelday after the divorce in 1846? No record of any subsequent marriage has been produced, nor has any witness testified directly as to any such marriage; but it is strenuously insisted that the evidence will justify the court in presuming a common-law marriage of the parties after the impediment to the legal marriage was removed. While our statute prescribes certain formalities to be observed in marriages and certain steps to be taken to preserve the evidence of their celebration, it does not declare a marriage void which is legal at the commonlaw, merely because not entered into in accordance with its provisions. Port v. Port, 70 Ill. 484. A marriage is a civil contract made in due form, by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge toward each other the duties imposed by law upon such relation. Each must be capable of assenting, and must in fact consent to form this new relation. If a statute forbids the solemnization of marriage without a license, still in the absence of a clause of nullity, the marriage will be good, though no license was had. 1 Bish. Mar. & Div., § 284. The proof here fails to show any license for the mar. riage of Lewis after the divorce; but on the contrary, the clerk of the County Court, the keeper of the public records relating to marriages, testified that he had carefully examined those records and failed to find any other marriage license than that issued in 1843.

Nor is there any direct evidence of any marriage of the parties after the divorce, per verba de præsenti, or per verba de futuro cum copula; but the court is asked to infer such a marriage from the long-continued cohabitation of the parties, and their reputation of being married at some time. When the consent to marry is manifested by words de præsenti, a present assumption of the marriage status is necessary. As said in Van Tuyl v. Van Tuyl, 57 Barb, 237: "As the law stands, a valid marriage, to all intents and purposes, is established by proof of an actual contract per verba de præsenti between persons of opposite sexes capable of contracting to take each other for husband and wife; especially where the contract is followed by cohabitation. No solemnization or other formality apart from the agreement itself is necessary. Nor is it essential to the validity of the contract that it should be made before witnesses; " citing Clayton v. Wadell, 4 N. Y.

230; Cheney v. Arnold, 15 id. 346; Tummalty v. Tummalty, 3 Bradf. 372; Hubb. Succ. chap. 4, § 1. On the other hand, it is not sufficient to agree to present cohabitation, and a future regular marriage when more convenient, or when a wife die, or when a ceremony can be performed. Robertson v. State, 42 Ala. 509; Duncan v. Duncan, 10 Ohio St. 182; Estate of Beverson 47 Cal. 621; Fryer v. Fryer, Rich. Eq. 85; Van Tuyl v. Van Tuyl, 57 Barb. 235; 1 Bish. Mar. & Div., § 262. To constitute marriage the consent must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, as that it be publicly solemnized. 1 Bish. Mar. & Div., § 249.

In Hantz v. Sealy, 6 Bin. 405, the plaintiff and defendant had long lived in adulterous intercourse, although they considered themselves as lawfully married. In fact, they had entered into a marriage contract which was void because the defendant had a former wife living from whom he had been separated by consent, but not legally. After a legal divorce was procured, they were advised by their lawyer to celebrate a new marriage. The defendant said: "I take you (the plaintiff) for my wife;" and the plaintiff being told if she would say the same thing the marriage would be complete, answered: "To be sure he is my husband, good enough." The court held these words of the woman did not constitute a present contract, but alluded to their past contract, which she always asserted to be a legal marriage. Where parties competent to contract have agreed to marry at some future time, if they have copula, which is lawful only in the married state, in the absence of any evidence to the contrary they will be presumed to have become actually married by taking each other for husband and wife, and to have changed their future promise to marry to one of present marriage. In such a case the copula will be presumed to have been allowed on the faith of the marriage promise, and that the parties at the time of such copula accepted each other as man and wife. Port v. Port, 70 Ill. 484; Hebblethwaite v. Hepworth, 98 id. 125. This kind of a marriage must be distinguished from cases of seduction or sexual intercourse followed by a promise of marriage in cases where the intercourse in its inception is illicit, and is known to be such. Cheney v. Arnold, 15 N. Y. 345; Duncan v. Duncan, 10 Ohio St. 181; 1 Bish. Mar. & Div., § 261.

The evidence in the record is amply sufficient to show that Lewis and Zerelday lived and cohabited as husband and wife for a period of about twenty-five years, and that during all this time he treated her as a man would a wife, and her children as his own, and that they were reputed as husband and wife. But it must be borne in mind that cohabitation and repute do not constitute a marriage, but are only evidence tending to raise a presumption of marriage of more or less strength, according to the circumstance of the case, and that the cohabitation must not be meretricious, but matrimonial, in order to give rise to this presumption. 1 Bish. Mar. & Div., § 266. Where a marriage in fact is shown by direct evidence, as in this case, there is no necessity for presuming its existence. Presumption must yield to the superior force of direct and positive proof. In this case there was an actual marriage ceremony performed in 1843, by which Lewis and Zerelday were apparently and ostensibly married. Their cohabitation thereafter, and reputation as to being married, might very naturally and properly be referred to the fact of this apparent marriage; there being nothing to indicate to their acquaintances and neighbors that it was void. If no actual marriage ceremony had been shown, then the cohabitation and repute proved might be referred to some supposed informal common-law marriage. This cohabitation and repute is not now shown as evidence of the ceremonial

marriage in 1843, but of some other kind of marriage entered into some time after the divorce, in December, 1846. Is such cohabitation and repute, based upon a supposed common-law marriage, any more than upon the formal marriage, shown by the records to have been entered into in 1843? The habit and repute shown in this case might just as well and more naturally arise from the marriage in 1843. If this evidence could, by any known rule, be so limited as to show a cohabitation and repute from some day after the divorce, when no impediment existed, it might afford evidence of a common-law marriage of the parties by their own acts. If the cohabitation and repute was the result of the assumed marriage in 1843, which was void, it was illicit, and not matrimonial, and no marriage can be presumed from illicit sexual intercourse.

The cohabitation being meretricious in its inception, at least so far as Lewis is concerned, was it changed by the divorce in Kentucky, and rendered thereafter matrimonial? This would seem to depend upon the intention of the parties, and the fact whether they had knowledge of the divorce removing the only im. pediment there was to their marriage. There is no proof in the record that either Lewis or Zerelday had ever been informed of the divorce, or that she even ever knew that he had a former wife. Without knowledge of the removal of the impediment, they could not have intended a second marriage, or have attempted to enter into another marriage. Courts cannot marry parties by mere presumption, without their consent. In the absence of consent, the status of marriage is never created by any government. The law compels no one to assume the matrimonial status. Without assent, no statute or Constitution can create this relation. Dickerson v. Brown, 49 Miss. 373. In Turpin v. Public Adm'r, 2 Bradf. 424, the surrogate said: "When parties are living in a meretricious state, a promise to marry on some future condition does not effect a marriage by a mere continuance of that connection."

What evidence is there that Lewis ever consented to or even desired to change his connection with Zerelday from an illicit to a matrimonial one? He took no steps to remove the impediment to his marriage with her. The divorce was not sought by him, but was obtained by his former wife in 1846. If he had no knowledge of this divorce, it cannot be presumed that he would have married the same woman. If he had notice of the divorce, and desired to change his connection with Zerelday into that of marriage, it was an easy matter for him to have had solemnized a legal marriage, or for the parties in some public manner to have indicated an intention to enter into such relation. But this was never attempted. It may be said that the holding of Zerelday out to the world as his wife showed a desire to change his connection with her to that of marriage. But little importance can be attached to this circumstance when considered in connection with the other facts of the case. A concubine is often held out to the world as a wife, to conceal an illicit cohabitation, and prevent a criminal prosecution; and in addition to this, if he desired to change his former connection, there was an easy way open to him. The holding of her out as his wife before the divorce was a fraud and a deception; and if Lewis would attempt to deceive the public by creating false appearances, prior to December, 1846, why may not his subsequent acts also have been equally deceptive and fallacious? As said before, there is no evidence in the record showing that Zerelday ever knew that Lewis had a wife living at the time she supposed she married him. She was deceived and imposed upon by Lewis in his falsely assuming to have capacity to marry her, and in concealing the fact of his prior marriage to a then

Not knowing of the

living and undivorced wife. former marriage, she could have had no reason for desiring a second marriage. If she regarded herself as the lawful wife of Lewis, it would be a violent presumption to hold that she assented to a second informal marriage. If she knew of the prior marriage, then her cohabitation with Lewis was meretricious in its inception, and could only be changed after the disability of Lewis was removed, and then only by the mutual consent of both. If she had notice of the illegality of her marriage after the divorce, and cohabited with Lewis after that without a new marriage, it was criminal. If she desired to make her subsequent connection with him lawful, she, no doubt would have insisted upon a public or statutory marriage, so as to preserve the evidence of the same.

Marriage may be shown by circumstantial as well as by direct evidence. It may in a proper case be inferred from continuous cohabitation and repute when nothing appears to prevent the raising of the presumption created by the proof of these facts. If the cohabitation was in its inception illicit, the presumption of the innocence and morality of the parties is at once rebutted and overcome; and without proof of a change in their relation to each other, it will be presumed that this continuance of the connection of the parties is of the same character. Floyd v. Calbert, 53 Miss. 37.

Bishop, in his work on Marriage and Divorce (§ 506), says: "If parties come together intending and choosing an illicit commerce, there being no impediment to marriage, it cannot be presumed without reasons, whatever the law under which they live, that they have altered their choice; for a condition of things once shown is presumed to continue. And it can make no difference in this, that an impediment to marriage existing when the cohabitation began was afterward removed."

In the State of Mississippi the Constitution provided that ail persons who have not been married, but are now living together, cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, etc. The Supreme Court of that State held that where a person claims to be married thereby, there must be some formal and explicit agreement between the parties that they will and do accept the new organic law as establishing thenceforth between them a new relationship, or there must be such open and visible change in the conduct and declaration of the parties that an agreement to accept the new law might fairly be inferred. Floyd v. Calvert, 53 Miss. 37; Dickerson v. Brown, 49 id. 357.

Where both parties are married in the honest belief, founded on apparently good reason, that they are capable of entering into the marriage contract, when in fact one of them is not, if they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law will presume a commonlaw marriage by the act of the parties, in the absence of any evidence to prevent such presumption. In such a case there are many strong and cogent reasons for presuming a new marriage after the removal of the impediment, even though the parties may not have known of its removal. Then the cohabitation in ignorance of facts rendering it illegal is not to be regarded as meretricious or criminal until the parties have knowledge of such facts. Their purpose in such a union is honorable marriage, which the law favors, and not mere illicit intercourse. The fact that Mrs. Lewis had no knowledge of the invalidity of the marriage, and therefore the cohabitation on her part was not criminal, cannot validate the assumed marriage even as to her. If valid as to her, it must be equally so as to him. A contract not mutually binding is void

lease, but continued to use wharf and place for public resort. In an action for damages to C., who was injured by the defect, held, that the action was maintainable against A. and B. jointly.

TRE

TRESPASS on the case. On demurrer to the second count of the declaration.

Augustus S. Miller & Arthur L. Brown, for plaintiff. Nicholas Van Slyck & Cyrus M. Van Slyck, for defendants.

DURFEE, C. J. We think the second count of the plaintiff's declaration sets forth a good cause of action, and that the demurrer to it must be overruled. Briefly stated the case set forth is this: On February 15, 1881, the defendant Martin was, and for a long time had been, the owner of an estate in East Providence, bounding on Providence river, known as "Silver Springs," being a place of public resort and entertainment to which the public had long been in the habit of resorting, and of a wharf extending therefrom into said river, over which the people were in the habit of coming and going in great numbers to and from said "Silver Springs," and at which many steamboats were accustomed to touch. This wharf was, at the time mentioned, and long had been unfit for such use in this; that there was a large opening in the top of it which was accustomed to close when the steamboats touched, to the great danger of persons standing there, the wharf being without proper protection against the resulting shock. On February 15, 1881, Martin, knowing this, leased said “Silver Spring" and wharf to the defendant Bliss, who was then ignorant of it, for the term of eight years, at $1,500 per annum, "Silver Spring" being let to be used as a place of public entertainment and resort, and said wharf as a suitable landing place and place of egress for the numerous visitors thereto. Bliss soon became acquainted with the condition of the wharf, but left it unrepaired until after July 31, 1886, while he continued to invite the public to his resort, both he and Martin, meanwhile, deriving great gains and profits therefrom. On July 31, 1886, the plaintiff's son, Henry D. Joyce, a boy of eleven years, was on the wharf as a visitor, at the invitation of Bliss, and while in the exercise of due care, got his foot caught in the opening and crushed by the closing thereof when a steamboat touched the wharf. The plaintiff sues for damages for loss of the boy's services, etc.

In Owings v. Jones, 9 Md. 108, the plaintiff sued for damages for injuries received by falling into a vault appurtenant to the property of the defendant and built under the sidewalk of a public street. It was shown in defense that the property had been leased by the defendant for the term of seven years, the lessee agreeing to pay an annual rent therefor, but not in any manner stipulating to keep the devised premises in repair nor to have the sink kept clean, and that the lessee was in possession at the time of the accident. But the court held that the defendant was not relieved from liability if the vault was so constructed as to be unsafe for passers by when the premises were let, or as to be liable to become unsafe in the necessary opening for the purpose of cleaning it. The court, in giving its opinion, laid down the two following doctrines, relying on the authority of Rich v. Basterfield, 4 C. B. 784, and the cases cited there, to-wit: First, where property is demised and at the time of the demise is not a nuisance and becomes so only by act of the tenant while in his possession, and injury happens during such possession, the owner is not liable; second, but where the owner leases premises which are a nuisance, or must in the nature of things become so by their use, and receives rent, then whether in or out of possession, he is liable for injuries resulting from such

nuisance. Numerous cases support this view. Rosewell v. Prior, 1 Salk. 460; also 12 Mod. 635, 639; The King v. Pedly, 1 A & E. 822; The King v. Moore, 3 B. & Ad. 184; Todd v. Flight, 9 C. B. (N. S.) 377; Nelson v. Liverpool Brewery Co., 2 C. P. Div. 311; Pretty v. Bickmore, L. R., 8 C. P. 401. In the last named case the lessor was held to be exempt from liability because he let the premises by lease in which the tenant covenanted to keep them in repair. See also the following American cases: Staple v. Spring, 10 Mass. 72; Fish v. Dodge, 4 Denio, 311; Davenport v. Ruckman, 37 N. Y. 568; Anderson v. Dickie, 26 How. Pr. 105; House v. Metcalf, 27 Conn. 631.

In Godley v. Haggerty, 20 Penn. St. 387, affirmed in Carson v. Godley, 26 Penn. St. 111, it was held that when the owner of real estate erected thereon a row of buildings with the intention of renting them to the government as bonded warehouses, and with the knowledge that they would be obliged as such to susLain very great weights, he was liable in damages for any injury to a person employed in one of the stores occasioned by its fall, after having been so rented, though the immediate cause of the accident was the storage of heavy merchandise in an upper story, it appearing that the building had been constructed on a defective plan and of insufficient strength.

In Swords v. Edgar, 59 N. Y. 28; S. C., 15 Am. Rep. 295, it was held that the lessors of a pier, which was in possession of their lessee from whom they were receiving rent for it, were liable for an injury received by a longshoreman engaged in discharging a cargo thereon, the cause of the injury being a danger or defect which existed at the date of the demise. The pier, though private property, was kept for use by all vessels which might come to it for the purpose of loading and unloading, and the court held that the longshoreman, being in the employ of such a vessel, was to be regarded as there by invitation, and therefore as entitled to the protection which would result from having the pier in an ordinary state of security and strength. The court also held that though the lease contained a covenant binding the lessee to keep the pier in good order and repair, the lessors were not exonerated thereby, dissenting from Pretty v. Bickmore, supra.

In Edwards v. New York & Harlem R. Co., 98 N. Y. 245; S. C., 50 Am. Rep. 659, the plaintiff was injured by the falling of a gallery in a building let to be used for public exhibitions; and it was held that the lessors were not liable, there being no evidence that they either knew or had reason to know that the gallery would be used in such a way as to endanger its security. The court however in delivering judgment said: "If one builds a house for public amusements or entertainments, and lets it for those purposes, knowing that it is so imperfectly or carelessly built that it is liable to go to pieces in the ordinary use for which it was designed, he is liable to the persons injured through his carelessness." A vigorous dissenting opinion, arguing that the lessors ought to be held to respond to damages, was drawn up by Ruger, C. J., and concurred in by Danforth and Finch, JJ. See also Camp v. Wood, 76 N. Y. 92; S. C., 32 Am. Rep. 282.

The case of Albert v. State, 66 Md. 325; S. C., 59 Am. Rep., appears to have been almost indentical in its circumstances with the case at bar. It was an action brought by or for a minor for damages sustained by him by the death of his parents, who were drowned by reason of the defectiveness of a wharf in the occupation of the defendant's tenant. The instruction given on trial to the jury was that "if the jury found that the defendant was the owner of the wharf and that he rented it out to a tenant, and that at the time of the renting the wharf was unsafe, and the defendant knew, or by the exercise of reasonable diligence could have known of its unsafe condition, and the accident hap