house of Joanna's father, and thence with the father and the mother of Joanna, in company of the constable, to a justice of the peace to be married. The justice asked Enoch and Joanna if they consented to be married, and told them to join hands; Enoch dropped his hand and turned from Joanna; she took it and held it until they were pronounced man and wife. The justice hesitated when Enoch refused to take Joanna's hand, but proceeded in a minute or two and concluded the ceremony. It was customary for the justice to offer a prayer, but he did not do so on this occasion, and Joanna's father did so instead. During the whole time Enoch said nothing. After the ceremony, Joanna returned to her father's house, but Enoch did not go with her, nor did they ever afterwards cohabit. About three days later, Enoch married another girl, Mary B., and afterwards told a witness that he had married Joanna on Thursday, and Mary on the succeeding Sunday. Mary and Joanna became mothers about the same time, which was between three and six months after the marriage with Joanna. The latter's child was Parthenia. Mary's child was a daughter, still living. Enoch again married after Mary's death, in 1812; the defendant was this wife, and by her he had six children. It also appeared that Joanna subsequently married another man.

In respect to the other part of the defense, the will of Enoch Copley was proved, dated in 1827, whereby he gave one third of his real estate to his wife Elizabeth, the defendant, during her natural life, if she should remain his widow, and then over to three sons named, if they should survive their mother; then, after bequests to his daughter, and a small legacy to Parthenia Copley, the daughter of Joanna Desilva and wife of John Dies, follows the clause: "I also give and devise unto my three sons, George, William, and Myron, the remainder of my property, both real and personal estate, if they should live to come of age, and their mother's thirds after her decease, if she remains my widow." In 1828, probably after this suit was brought, the defendant married.

Verdict for the plaintiff, subject to the opinion of the court. A. Van Vechten, for the plaintiffs.

S. Sherwood, contra.

By COURT. The maxim of the civil law, nuptias non concubitus sed consensus facit, Dig. L. 50, tit. 17, sec. 30, or one of the same import, has ever been regarded in courts of common law as a good definition of marriage. There is an expression

in Wood's Institutes of the Laws of England, Inst. 57, which, if examined without its context, might seem to imply that cohabitation as well as consent was required to make a valid marriage. "Marriage or matrimony," he observes, "is an espousal de præsenti, and a conjunction of man and woman in a constant society;" but the very next sentence is a translation of a Latin maxim, similar to the one quoted from the civil law. "Mutual consent," he says, "makes the marriage before consummation." The language of Jacob, in his Dictionary, tit. Marriage, is less liable to misconstruction. He says: "Nothing is more necessary to complete a marriage, by the laws of England, than a full, free, and mutual consent between parties" not incapable of entering into such a state. Wood, in his Institute of the Civil Law, p. 120, says that "espousals de præsenti, or marriage, is contracted by consent only without carnal knowledge." To ascertain whether a valid marriage was actually solemnized between Copley and Joanna Desilva, we are to look at their situation when before the justice, and what took place on that occasion. The evidence is very satisfactory that they went before him expressly for the purpose of solemnizing their matrimonial contract, and that Copley yielded his consent to it.

Was that consent the result of duress? There is nothing to warrant such conclusion, besides the fact that Copley was in the custody of the constable in a proceeding instituted by the overseers of the poor. The necessary consequence of his marriage was a discharge from any liability to them. If a cohabitation had followed the alleged marriage, neither Copley himself, nor any other person, would have been listened to, if he had attempted to establish its nullity, upon the ground of his restraint. We will not say that we ought to disregard entirely the subsequent conduct of the parties in settling the question as to his free consent. The rule of law on this subject, as established in England, it appears to us would be safe and judicious to follow, although it be the rule of an ecclesiastical court. It is long since the jurisdiction in most matters relating to marriage passed from the courts of law in that country to the ecclesiastical courts. If the parties to an alleged matrimonial contract are infra annos nubiles, the ecclesiastical judge passes upon the assent, and determines what is a sufficient assent, and what not. His certificate is the proof required, and where he has cognizance, courts of law give, and it is necessary to the administration of justice that they should give, the same credit

to the sentence of an ecclesiastical tribunal, as such a tribunal is bound to yield to the judgment of the common law courts on matters within their jurisdiction: 2 Lilly's Abr. 244 c. very evident 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 can not 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. We are therefore bound to say that Copley's marriage with Joanna was valid, and she being still alive, he consequently can have no legitimate issue by any other woman. Parthenia, one of the lessors of the plaintiff, is his only heir at law.

Whether Parthenia inherits anything from him depends upon the construction of his will. The devise in the will is as follows: "I also give and devise unto my three sons, George, William, and Myron, the remainder of my property, both real and personal estate, if they should come to live of age, and their mother's thirds, after her decease, if she remains my widow." One third part of his real and personal estate, by a previous clause in the will, had been given to the defendant, during her natural life, if she should remain his widow. It seems not to be necessary to the decision of the question now before us, to determine whether the estate given to Copley's three sons commenced in præsenti to be enjoyed in futuro, or whether it will vest when they arrive at the age of twenty-one years. We would depart wholly from the language of the devise, should we decide that the sons were entitled to the immediate possession of the property. They can not have it during their minority. Who has it until they are of age? The heir at law, undoubtedly. It is not necessary that we should enter at large into the consideration of the nature of the estate which the heir takes; it may not, however, be improper to say that the case of Roger v. Ross, 4 Johns. Ch. 388 [8 Am. Dec. 575], is a strong authority to show that she takes as a trustee, and not in her own right. It is not reasonable to conclude

that the testator intended to produce such a result; but we can not avoid coming to it if we look to the language he has employed, and apply to it the established rules of law.

From the examination of the plaintiff's points, it appears that he does not press his claim to more than two third parts of the premises. To this extent he is entitled to recover. We do not mean to intimate an opinion that had he insisted on more, judgment for more would have been given. Our impressions are strongly to the contrary.

Judgment for plaintiff, for two thirds of the premises.

Considered one of the cases settling the proposition in New York, that consent of the parties is the only requisite to the marriage contract, and that it is complete when there is a full, free, and mutual consent by the parties capable of contracting, even when such consent is not followed by cohabitation. Upon this point it is cited in Caujolle v. Ferrié, 23 N. Y. 106; S. C., 26 Barb. 185; Cheney v. Arnold, 15 Id. 351; Jaques v. Public Administrator, 1 Bradf. 508. Cited further as settling that when no provision is made in the will the property descends to the heir at law until the vesting of the contingent estate, in Tayloe v. Gould, 10 Barb. 398; and that the heir takes as trustee for the one eventually entitled to the estate, bound to account for the rents and profits, and subject to be displaced as trustee, for misconduct or want of responsibility, in Hoxie v. Hoxie, 7 Paige, 189. The principal case is also referred to as an authority that a direction to an executor to sell land, though positive and absolute, is but a power in trust, in Hall v. McLaughlin, 2 Bradf. 113.

MARRIAGE PER VERBA DE PRÆSENTI.-See notes to Londonderry v. Chester, 9 Am. Dec. 72; Fenton v. Reed, 4 Id. 244, and Taylor v. Swett, ante, 156. EXECUTOR'S ESTATE IN LANDS PROVIDED BY THE WILL TO BE SOLD.-Lockwood v. Stradley, 12 Am. Dec. 97, and note, 102; McCants v. Bee, 16 Id. 610; Dabney v. Manning, 17 Id. 597.

JEFFERSON INSURANCE CO. v. COTHEAL.

[7 WENDELL, 72.]

THE OPINIONS OF UNDERWRITERS, who had no particular knowledge in re gard to the erection of steam saw-mills, are not admissible to prove that the inclosure of the boiler in a particular manner materially increased the risk.

PERSONS OF SKILL MAY GIVE THEIR OPINIONS IN EVIDENCE when, from the nature of the case, facts disconnected from such opinions can not be given to the jury to enable them to pass upon the question with the requisite knowledge and judgment.

A WARRANTY IS NEVER CREATED BY CONSTRUCTION.—It must appear in express terms or must necessarily result from the terms of the contract. It must appear on the face of the policy.

PRINTED PROPOSALS, TO BE CONSTRUED AS WARRANTIES, should be referred

to by the policy, which should in express terms declare that it had been made and accepted in reference to them. ALTHOUGH THE DESCRIPTION IN THE REPRESENTATION may differ very considerably from the actual state of the property insured, if such variation were not fraudulently intended, and did not in fact affect the rate of insurance, or change the actual risk, the policy is not avoided. ON POLICY INSURING "WHOM IT MAY CONCERN," the loss to be paid to two assured individuals named, those named may maintain an action without joining as plaintiff a third person, a part owner.

ERROR from the superior court, in an action on a policy insuring a steam saw-mill against fire. The plaintiffs, while erecting the mill, presented to the defendants an application for a policy of insurance, in the words: "A steam saw-mill on the river Nantikoke, near Vienna, in Maryland; wooden building, about one hundred and thirty feet long by thirty feet broad, with two saw-gates; engine of low pressure; on account of whom it may concern. In case of loss, payment to be made to H. & D. Cotheal." In November, 1824, a policy was issued for one year: "H. & D. Cotheal, or whom it may concern, against loss or damage by fire, to the amount of five thousand dollars, on a steam saw-mill, built of wood, situate on, etc. Loss, if any occurs, to be paid to H. & D. Cotheal of the city of New York,” etc. The policy was renewed in 1825 and in 1826 for a year. In May, 1827, the mill was destroyed by fire, the loss exceeding the amount insured. It appeared that the mill was completed in December, 1824; the boiler and furnace being placed on the outside of the building adjoining, and in the summer of 1825 a shed was erected over the same and attached to the mill by rafters. The plaintiffs proved that it was safer to have the boiler outside of the building than underneath; that it was customary so to have it; and that a covering was necessary to preserve it from rust. The defendants proved that the representation made by the plaintiffs in 1824 was the basis of the renewal in 1826. They then called Franklin and Swords, presidents of different fire insurance companies, and asked them their opinions in regard to the effect of the boiler being inclosed upon the risk and the rates. One Guion, the defendants' secretary, was called and asked a question regarding the erection of the boiler-house. The nature of all these questions, which were rejected by the court, appears from the opinion.

Verdict and judgment for the plaintiffs for five thousand five. hundred and eighty-one dollars and twenty-five cents.

S. P. Staples, for the plaintiffs in error.

D. Selden, contra.

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