The opinion of the court was delivered by
Read, J.Theodore Barnett, a minor, with his uncle, David Hamilton, entered into a bond with warrant of attorney to Emma Kimmell, in the penal sum of six hundred dollars, conditioned for the payment of three hundred dollars within sixty days from the 9th June 1858, with stay of execution for that period, and on the 14th June in the same year, judgment was entered upon it. At the same time, and of the same date with the bond, another paper was drawn up and executed by the obligee, and delivered to Hamilton, one of the obligors, in which, after reciting the giving of the bond, &c., it was provided that, if within sixty days, Barnett proposed to marry Miss Kimmell, and was rejected by her, or on the other hand, if his proposition was accepted, and he married her, then and from thenceforth the bond was to be null and void. On the 14th July 1858, they were married in the presence of witnesses, at the house of Miss Kimmell’s sister, where she resided, by the Rev. Mr. Babcock, a minister of the Methodist Episcopal Church. Upon a rule taken on the 13th June 1859, on the plaintiff, to show cause why the judgment should not be marked satisfied, the court directed an issue to determine whether the conditions expressed had been complied with, which was tried, and under a strong charge from the presiding judge, the jury gave a verdict for the plaintiff. The fact of marriage was not denied, but it was alleged, that it was accompanied by such circumstances of fraud as to render it null and void; or, in other words, that the parties were not married at 'all. This is a startling proposition, and requires a careful examination, as it would give the courts the power, in an entirely collateral proceeding, to divorce man and wife.
Barnett, by the obligation, was bound to make the offer to marry. This was imposed upon him as a duty by the plaintiff, and one which- she knew he was unwilling to perform. His connections were opposed to the match, and this was well known to the plaintiff, who provided for it, by securing the payment to her of three hundred dollars, in case he did not give her the opportunity, within a limited period, of accepting or rejecting him.
The plaintiff declined taking any smaller sum, and the defendant then proposed to marry her, to which she consented, and they were legally married by the ceremony of the Methodist Episcopal Church. Whatever was said by him immediately before the marriage is immaterial, as it was said to the plaintiff herself, who was fully aware of his feelings; and the loose declarations made three months after his marriage,- that he would not live with her, or .do anything for her, may be classed in the same category.
The only fact proved to invalidate the marriage was, that since *20it took place he has not lived with her. This clearly does not render it null and void ab initio, or a state of divorce would become the rule instead of the exception.
The Act of the 8th May 1854 empowers the Courts of Common Pleas to grant divorces, where the alleged marriage was procured by fraud, force, or coercion, and has not been subsequently confirmed by the acts of the injured party. In the present case, there was clearly neither force nor coercion, and any fraud between man and wife should only be tried between those parties by the tribunal, and in the manner, pointed out by the Act of Assembly. Mrs. Barnett has never applied for a divorce, nor did she ever deny or repudiate the marriage, until this question of fraud of intention was raised, on the trial of this issue, a year and more after the event itself. It is clear, that Theodore Barnett is a married man, and if he married another woman during the life of his present wife, he would be guilty of bigamy, and if Mrs. Barnett did a similar act, she would be'guilty of a like offence.
The contract of marriage differs from all others, in having a specific remedy provided by positive statute, in which its validity or invalidity may be finally determined between the parties. This is necessary for the peace and comfort of society, as well as for the safety and happiness of the helpless progeny.
The learned judge was clearly wrong in submitting to the jury a hypothetical case of conspiracy and fraud in. giving the bond, for which there was not the slightest warrant in the evidence,which has. been all spread on the paper-book. Prior to the marriage there was really nothing but the unwillingness of Barnett (which was well known to his- intended wife) to prove what his real intention was, at the time of the marriage. As was well said by Lord Redesdale, in McAdam v. Walker, 1 Dow’s Rep. 190 : “ There was no proof that Mr. McAdam did not intend a consortium vitce, at the time of the marriage, and even though he had not that intention, still it was not to be allowed, that a civil contract (as this was by the law of Scotland) should be avoided by a secret reservation of one of the parties.”
In Jackson v. Winne, 7 Wendell 47, Copley was arrested under the Bastardy Act, upon the charge of having gotten Joanna Desilva with child; and he went, in company with Joanna-, her father, mother, and the constable, to the house of a justice of the peace, to be married. The justice asked Copley and Joanna if they consented to be married, and told them to join hands. Copley dropped his hand and turned from Joanna — she took it, and held it until they were pronounced man and wife. Upon Copley refusing to take the hand of Joanna, the justice hesitated, but, after a minute or two, proceeded, concluded the ceremony, and pronounced them man and wife; Copley, during the whole time, said nothing. Joanna returned to her father’s, but Copley *21did not return with her, and they never cohabited after the marriage. Three days afterwards Copley married another girl; both became mothers within' six months of the two marriages, and Joanna married another man during Copley’s life. The question was, whether Joanna’s child, Parthenia, was legitimate. “It is very evident,” say the court, “that the Ecclesiastical Court, in deciding upon the sufficiency of the assent of the parties, can regard only what takes place at the ceremony. We ought, therefore, to confine our attention almost exclusively to the facts attending the espousals before the justice; and doing so, we cannot say, that the mere circumstance that Copley had involved himself in difficulty with the overseers of the poor, by his previous connection with Joanna, and that he took the step he did with some reluctance, is enough to show that he did not yield his full and free assent to the marriage solemnized before the justice. To nullify, on such slight grounds, so solemn a contract as that of marriage, would jeopardize) in too many instances, the blessings which spring from the dearest civil and social relation.”
The light in which such marriages were regarded by William Penn, may be seen in one of his earliest laws, which enacts “ That if any single man commit fornication with any single woman, he and she shall be punished by enjoining marriage, or fine, or corporal punishment, or all or any of these, according to the discretion of the county court before whom it shall be proved.”
The conclusion, then, is, that these parties were legally married, and never having been divorced for any cause whatsoever, the stipulation in the paper, accompanying the bond, has been complied with; and, of course, that the judgment entered on it should have been marked satisfied. Such a result is absolutely necessary, to protect the offspring, whether bom before or after the marriage, from the stain and disabilities of illegitimacy.
This view of the case makes it unnecessary to consider the charge of the court in detail, or to discuss particularly the errors assigned.
Judgment reversed, and a venire de novo awarded.