I concur in the opinion of Mr. Justice Scott, hut not upon all of the grounds therein stated. I am of the opinion that the complaint, as such, states a cause of action — that is, that under the allegations there set forth proof would be admissible to establish that the defendant’s conduct constituted cruel and inhuman treatment of such a character as to render it unsafe and improper for the plaintiff to longer cohabit with him. I cannot conceive of any more cruel and inhuman treatment to a highly sensitive, educated and moral woman than open and notorious acts of adultery on the part of the husband. What act could be more humiliating or likely to affect the health of such a person than that the husband should insist upon keeping his mistress in the home, or that he should frequently be seen in public with her ? Such acts to many women would be more cruel and do more to impair their health than threats or physical injury. For this reason it seems to me the complaint states a cause of action for a separation under section l'?62 of the Code of Civil Procedure.
The complaint alleges that the parties were married on or about January 12th, 1891. The answer denies knowledge or information sufficient to form a belief as to this allegation. This is not a good answer in my judgment. I cannot conceive of a case where a party could have been married and not have knowledge of that fact sufficiént to form a belief. If, when the alleged marriage took place, the party did not know what he was doing — in other words, was in such a condition of mind that he did not know he was entering into a contract — then a legal marriage never took place, and in his answer he could deny the fact of the marriage. A marriage is a contract and nothing else, which presupposes the meeting of two minds on the subject-matter of it. If the defendant, when the ceremony was performed, “ was either drugged or was so far under the influence of liquor as tc be unable to understand the contracting of such marital relation,” then in law the proceeding amounted to nothing, because the meeting of minds presupposes sufficient intelligence to determine whether the contract shall be made. Unless there be present this degree of intelligence at the time the marital relation is entered into, then there is no contract. The answer, in so far as it denies the allegation of the complaint that *842five years have not elapsed since the plaintiff discovered the fact of the alleged adultery, and affirmatively alleges that more than five years have elapsed since such fact was discovered, is good. If these facts be established at the trial, they will constitute a defense to the plaintiff’s cause of action.
ITpon this ground alone, therefore, I concur in the reversal of the order appealed from.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.