neither can bring an action for breach of promise. (100 Mass. 358.) So a cessation of intercourse and correspondence may evidence such release.

When the action is maintainable the plaintiff is entitled to damages for the mental suffering, mortification and pain resulting from the defendant's failure to perform, also to punitive damages in case of seduction. (57 Tex. 215.) Infancy of the defendant at the time the promise was made is a good defense. (Rush v. Wick, 31 O. St. 521.)

Sec. 288. VOID AND VOID AND VOIDABLE MARRIAGES.-The words void and voidable are frequently used in relation to marriages, and it is important to understand at the outset the distinction in effects and consequences between a void and voidable marriage. A void marriage is a mere nullity, and its validity may be impeached in any court, directly or collaterally, and whether the parties be living or dead. A voidable marriage is valid for all civil purposes until a competent tribunal has pronounced the sentence of nullity, upon direct proceedings instituted for the purpose of setting the marriage aside. Voidable marriages once set aside are treated as void from the beginning (ab initio), and are no more protection to the parties or their issue than void marriages; but such suit of nullity must have been concluded in the lifetime of both parties, or it will fail, and the union be treated as lawful from its inception. Modern statutes tend to treat defective marriages as voidable rather than void, and further to mod

ify the doctrine that a sentence of nullity makes a voidable marriage void from the beginning.*

Sec. 289. ELEMENTS ESSENTIAL TO A VALID MARRIAGE.-To constitute a perfect marriage, "the contracting parties should be two persons of the opposite sex, without disqualification of blood or condition, both mentally competent and physically fit to discharge the duties of the relation, neither of them being bound by a previous nuptial tie, neither of them withholding a free assent; and the expression of their mutual assent should be substantially in accordance with the prescribed forms of law." (Schoul. Dom. Rel., Sec. 15.)

These being the essentials of marriage, we shall speak, in turn, as does Schouler, of each of the following topics: 1. Relationship as a disqualification; 2. Civil or social condition; 3. Mental capacity; 4. Physical capacity; 5. Proper age; 6. Prior marriage; 7. Force, fraud and error; 8. Proper celebration of the marriage as prescribed by law.

Sec. 290. RELATIONSHIP AS A DISQUALIFICATION.-Relationship is either by consanguinity or affinity. Consanguinity is blood relationship, or the connection imputed to persons having a common ancestor. Affinity is a relationship resulting from marriage, as between the husband and the blood relations

*Schoul. Dom. Rel., Sec. 14; Stimson, Am. Stat. Law, Sec. 6116.

of the wife, or between the wife and the blood relations of the husband.*

Marriages between near relatives have quite generally been forbidden among civilized nations as unclean and incestuous. Such marriages are also forbidden by the Mosaic law. There can be little doubt but that such prohibitions are well-grounded in reason, and necessary to protect public morals and health, the difficulty arises in fixing a reasonable limit to the prohibition, and in deciding whether relationship by affinity as well as by consanguinity shall disqualify. Ecclesiastical courts at one time in England extended the prohibitions to the seventh canonical degree; which restraint became so intolerable as to demand a statutory modification. (32 Hen. VIII, c. 38.) This statute, which is still essentially in force in England and America, prohibits all marriages nearer than first cousins, and reduces the prohibitions to the third degree of civil reckoning, ascending or descending. The prohibitions of this statute extend to illegitimate children, and to half-blood relations. The principles of this statute are recognized in the United States, but have been re-enacted in State statutes, and modified to some extent. Thus marriage between uncle and niece, or between aunt and nephew, are forbidden in some States. (Harrison v. State, 22 Md. 468.) And in Ohio, Indiana, Nevada and Illinois persons more nearly related than second cousins may

*2 Bl. Com. 202-6; Abbott's Law Dict., "Consanguinity" and "Affinity."

not marry.

(Rev. Stat. Ohio, Sec. 6384; Stimson Am. Stat. Law, Sec. 6111.)

The English law regards affinity as an impediment equally with consanguinity, and enforces the rule though the marriage constituting the relation has ended by death or divorce. So in England a man may not marry his deceased wife's sister, but this rule has never obtained in the United States. (Blodget v. Brinsmaid, 9 Vt. 27.) But by statute in the various States, affinity as applied in a lineal direction constitutes a bar to marriage, thus a man may not marry his father's widow, nor a woman her husband's son. And a man may not marry a son's widow and conversely.

Marriages within the prohibited degrees are considered void in some States, in others parties sue for a decree of nullity. At common law the issue of such marriages are illegitimate. (Harrison v. State, 22 Md. 468; 2 Kent Com. 83-4.)

Sec. 291. CIVIL OR SOCIAL POSITION AS A DISQUALIFICATION.-At common law neither race, color nor social position was an impediment to marriage. While social position, religion, etc., are no bar to marriage in the United States, yet by statutes in some States marriages between different races are forbidden, as between a black and a white, a white and an Indian, or a white and a Chinese. Such marriages are called miscegenation (mixing races) and are punishable in the

*Schoul. Dom. Rel., Sec. 16; I Bish. Mar. & Div., 5 ed., Secs. 315, 317.

States forbidding them.

Such legislation is not con

trary to the Federal constitution.

(Browne, Dom. Rel.

3; State v. Gibson, 36 Ind. 389; Pace v. State, 106 U.

S. 583; State v. Jackson, 80 Mo. 175.)

Sec. 292.

MENTAL

CAPACITY.-The

mar

riage relation is founded upon the consent of the parties, and this consent cannot be given by one incapable of appreciating the nature of the relation. (Turner v. Meyers, 1 Hag. Con. 414.) No one can contract a valid marriage unless capable at the time of giving an intelligent consent; hence the marriage of idiots, lunatics, and all others who have not the use of their understanding at the time of the union are treated as void. (Schouler, D. Rel., Sec. 18.)

Every case of mental incapacity stands on its own merits, and so far as a test can be provided it is, that the party must have sufficient intelligence to understand the nature of the marriage contract, and to perform the duties and responsibilities it creates. (Ward v. Dulaney, 23 Miss. 410; Atkinson v. Medford, 46 Me. 510.) So mere weakness of mind, or eccentricities of conduct are not sufficient to invalidate the marriage. (Smith v. Smith, 47 Miss. 211.)

The disability must have existed before the time of the ceremony, and have been unknown to the party contracting. Insanity accruing after marriage is not a cause for divorce, and nothing which is a consequence of it can be. (Powell v. Powell, 18 Kans. 37; 82 Ind. 146; Nonemacher v. Nonemacher, 159 Pa. St. 634.)

Drunkenness, which is analogous to insanity, is treated