It is not questioned that a parent may proceed to annul a marriage entered into by a son at the age of sixteen. The age of seven is not to be compared to sixteen in reference to marriage and its consequences. Seven years by the canon law was not a competent age for marriage at all, but only for espousals, and even that is something, says Phillimore, “ of which our present law takes no notice.” (1 Eccl. Law, 554.) The idea that a marriage, even called inchoate, could be then entered into probably came from a misunderstanding of the later sense of sponsaiia, which Swinburne says “ signifieth nothing else but promises of future marriage.” (Swinburne Espousals, p. 3, § 5.) But the precise point here is whether such a wife before annulment of a marriage of a minor aged sixteen has a remedy for tortious parental acts, such as false representations concerning her in order to alienate the husband’s affections. When this action for alienation was begun, the marriage had not been annulled, so that plaintiff had *37the status of a wife. The rule of decision is the quo animo of the parent. (Hutcheson v. Peck, 5 Johns. 196, 209, per Kent, Ch. J.) On this trial, the court accepted the wife’s further offer to show that defendants’ annulment action was brought “ maliciously.” Parental acts with a tortious purpose (Winsmore v. Greenbank, Willes’ Rep. 577, 581), and especially false representations concerning the wife, are not protected. (13 R. C. L. “ Husband & Wife,” § 522; Multer v. Knibbs, 193 Mass. 556.) This rule applies even to a marriage of one under the legal age, in which case parental interference must be fair and honest. The marriage relation is not to be broken by unfair means, much less by malicious slander.
Marriage and its annulment originally were subjects of ecclesiastical jurisdiction. In that court of conscience every remedy depended on good faith. Thus, after the first husband’s disappearance, a second marriage contracted in belief that he had died must be “ in good faith.” (R. S. pt. 2, chap. 8, tit. 1, art. 2, § 23; Code Civ. Proe. § 1749.)*
Where a parent broke up a daughter’s marriage entered into at the age of sixteen, just over the age of consent, the husband’s action was held maintainable, the motive having been malice, not protection. (Holts v. Dick, 42 Ohio St. 23.) Parents enjoy the presumption of good faith, but presumptions yield to proof. Hence, I think neither parental authority nor right of custody of minors may be rightly made an absolute privilege in defense of this action.
Order setting aside verdict and granting new.trial reversed, with costs, and motion denied.
See 2 R. S. 142, § 23; Code Civ. Proc. § 1745, as amd. by Laws of 1882, chap. 401, and Laws of 1913, chap. 444. Since amd. by Laws of 1919, chap. 202. See, also, Code Civ. Proc. § 1749, as since amd. by Laws of 1919, chap. 202. [Rep.