"This rule, that every man's house is his castle, when applied to arrests in legal process, hath been carried as far as the true principles of political justice will warrant—perhaps beyond what, in the scale of sound reason and good policy, they will warrant.” from or being annexed to the land, and not therefore extending to the tenant or lessee*; and all the authorities agree, that, where the Crown aliens the freehold, the privilege does not extend to the patentee †. It is also an important rule connected with tithes, that MODUS DE NON DECIMANDO NON VALET. (Cro. Eliz. 511).—In lay hands, a modus or prescription for the non-payment of tithes is bad. See Com. Dig. "Dismes," (E. 5. 7); 2 Bla. Com. 31, 32; Hobart, 297. Accordingly, it was held, in a recent case, that mere non-payment of tithes is no answer to a claim of tithes by a lay impropriator, for, as against him, there can be no prescription in non decimando. (Andrews v. Drever, 2 B. N. C. 5). *2 Bla. Com. 31. † 2 Bla. Com. 31, 16th ed., n. (9); Com. Dig. “ Dismes,” (E. 3). § II.-RULES RELATING TO MARRIAGE AND DESCENT. It seemed most convenient to insert a selection of rules relating to Marriage and Descent immediately after those which concern more peculiarly the legal rights and liabilities attaching to property in general. For additional information on the subjects treated of in this Section, the reader may consult with advantage the different authorities and references given in the note (a). CONSENSUS, NON CONCUBITUS, FACIT MATRIMONIUM. (Co. Litt. 33. a.)—It is the consent of the parties, and not their concubinage, which constitutes a valid marriage. stitutes mar Marriage is constituted by the conjunctio animorum, or what conpresent consent of the parties expressed under such circum- riage. stances as by law required, so that, though the parties, after consent so given, should, by death or disagreement, or any other cause, happen not to consummate the marriage conjunctione corporum, they are, nevertheless, entitled to all the legal rights consequent on marriage (b). The above maxim has been adopted from the civil law by the common lawyers, who, indeed, have borrowed (especially in ancient times) almost all their notions of the le (a) 2 Steph. Com., book iii., c. ii., which treats of Husband and Wife. The important judgments delivered in the case of Reg. v. Millis, (reported 7 Jur. 911, 983; 8 Jur. 717), which contain learned researches respecting the nature and requisites of the marriage contract; the 2nd volume of Sir W. Blackstone's Commentaries, chap. xiv., which, however, must be (b) See Bell, Dict. and Dig. of Verba de præsenti. Reg. v. Millis. gitimacy of marriage from the canon and civil laws (c); and, by the latter, as well as by the earlier ecclesiastical law, marriage was a mere consensual contract, only differing from other contracts of this class in being indissoluble even by the consent of the contracting parties. It was always deemed to be a contract executed without any part performance; so that the maxim was undisputed and peremptory, Consensus, non concubitus, facit nuptias vel matrimonium (d). By the law of England, also, marriage is considered in the light of a contract, and therefore the ordinary principles which attach to contracts in general are, with some exceptions, applied to it (e). The principle expressed in the above maxim, and which alone we propose to consider, is, that, in order to render a marriage valid, the parties must be willing to contract. The weight of authority, indeed, seems to shew, that, even prior to the Marriage Act, (26 Geo. 2, c. 33), a present and perfect consent, that is, a consent expressed per verba de præsenti, was sufficient to render a contract of marriage indissoluble between the parties themselves, and to afford to either of them, by application to the spiritual court, the power of compelling the solemnisation of an actual marriage; but that such a contract never constituted a full and complete marriage in itself unless made in the presence, and with the intervention, of a minister in holy orders (g). In the recent case of Reg. v. Millis (h) the facts were these: (e) 1 Bla. Com. 434; Co. Litt. 33. a.; see 2 Voet. Com. Pandect., lib. 23, tit. 2. (d) Per Lord Brougham in Reg. v. Millis, 7 Jur. 923. (e) 2 Steph. Com. 279, 280. (9) Per Tindal, C. J., delivering the opinion of the judges in Reg. v. Millis, 7 Jur. 912. (h) Reported 7 Jur. 911, 983; 8 Jur. 717. See the recent stats. 7 & 8 Vict. c. 81, s. 83; 5 & 6 Vict. c. 113. A. and B. entered into a present contract of marriage per verba de præsenti in Ireland, in the house and in the presence of a placed and regular Presbyterian minister. A. was a member of the Established Church; B. was either a member of the Established Church, or a Protestant dissenter. A religious ceremony of marriage was performed on the occasion by the said minister between the parties, according to the usual form of the Presbyterian Church in Ireland. A. and B., after the contract and ceremony, cohabited and lived together for two years as man and wife. A. afterwards, and whilst B. was living, married C. in England. It was held, that A. was not indictable for bigamy. futuro. It is important here to remark the difference which exists Verba de between a contract of marriage per verba de præsenti and a contract per verba de futuro, for the latter does not, under any circumstances, constitute a marriage by our law: it only gives a right of action for damages in case of its violation, though mutual consent will relieve the parties from their engagement (i); and this, like most other contracts, is not valid unless the party making the promise be of the full age required by the law, viz. twenty-one (k); so that, if there are mutual promises to marry between two persons, one of whom has attained the age of twenty-one, and the other of whom is within that age, the first is so far bound by the contract as to be liable to an action, if it be broken (1); but the latter may avoid it, if he pleases (m); and this distinction is founded on the well-known principle, that, where a contract may be to the benefit of an infant, or to his pre (i) Per Tindal, C. J., 7 Jur. 915; per Lord Lyndhurst, C., 8 Jur. 718. As to a plea of exoneration, and the evidence necessary to support it, see particularly the recent case of King v. Gillett, 7 M. & W. 55, 59. (k) 2 Steph. Com. 282, 283. Want of age. Consent of other parties. judice, the law so far protects him as to give him an opportunity of reconsidering it when he comes of age, and it is good or voidable at his election (n). But not only is want of age sufficient to avoid a contract of marriage to take place in futuro, but, in some cases, it renders void, or rather voidable, the actual ceremony, by reason of the presumed imbecility of judgment in the parties contracting, and their consequent inability to consent. Therefore, if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to full age, that party may disagree, and declare the marriage void, without any divorce or sentence in the spiritual court; and this is founded on the civil law, whereas the canon law pays greater regard to the constitution than the age of the parties, and, if they are habiles ad matrimonium, the marriage is good, whatever be their respective ages; and in our law the marriage will be good to this extent, that, if at the age of consent they agree to continue together, they need not be married again (o). If, moreover, the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she, for in contracts the obligation must be mutual; both must be bound, or neither; and so it is, vice versâ, when the wife is of years of discretion, and the husband under (o). Again, by the common law, if the parties themselves were of the age of consent, the concurrence of no other party was necessary in order to make the marriage valid, and this was agreeable to the canon law. Where, however, one of the contracting parties is under age, the law is now regulated by the stat. 4 Geo. 4, c. 76, which enacts, (sect. 8), (n) Judgment, 2 Stra. 939. (0) 1 Bla. Com., by Stewart, 470; 2 Steph. Com. 282. |