In April, 1885, the defendant filed his answer to said bill, denying that he and the plaintiff had ever been married, and averred that in June, 1861, the plaintiff had a lawful husband, one Edward Foster, living in Belmont county, Ohio, and that at the time of the alleged marriage with defendant she had a suit pending for a divorce from said Foster in the Court of Common Pleas of said Belmont county, which was afterward dismissed at her costs; that said Foster continued to be the husband of the plaintiff until October 31, 1873, when he died.

In July, 1885, the plaintiff filed an amended bill in which she repeats that she had been married to the defendant at the time and place stated in her original bill, and, by way of amendment, she avers that in the fall of 1873 she learned that one Edward Foster had recently died in Belmont county, and she thereupon conferred with the defendant as to the possibility of said Foster being her former husband and the probable effect on their marriage, and the action, if any, they should take in relation thereto. The bill then avers that "finally, for prudential reasons, it was determined to take no public action; but that plaintiff and defendant would, and they did, mutually consent and agree to, and did, reaffirm their former marriage, and became and continued to be what, in truth and in fact, they had been theretofore, husband and wife; and that thereafter, and from that day henceforth, to and until the— day of October, 1884, at the town of Grafton, State of West Virginia, she was and continued to be the wife of defendant, living and cohabiting with him as such, performing all the duties of a devoted wife, and he, the defendant, so holding the plaintiff out to all persons as such, and representing to all persons with whom plaintiff and defendant were acquainted that plaintiff was his wife, as in fact she was."

The depositions fully prove that the plaintiff and defendant lived together, cohabitated, associated, and represented themselves as husband and wife for over twenty years, and that during that time they kept house together, and four children were born to them, two of whom are still living. It is also clearly proved that in June, 1861, at the time the plaintiff alleges she was married to the defendant, the plaintiff was a married

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woman and the wife of Edward Foster; that both she and the defendant knew this fact; and that she continued to be the wife of said Foster until his death, which occurred October 31, 1873. There is no testimony in regard to the alleged marriage set up in the amended bill as having taken place in 1873, after the death of the plaintiff's husband, Edward Foster, except the deposition of the plaintiff herself. In her first deposition, taken before the filing of her amended bill, the plaintiff testifies that she was married to the defendant June 9, 1861, in West Alexander, Pennsylvania, before a justice whose name she does not remember; that she had never been married to the defendant at any other time; that her former husband, Edward Foster, was then dead, and had died long before; that she had seven children by said Foster; and that he had died about thirtytwo years ago. In her deposition taken after the filing of her amended bill, the plaintiff testifies that in 1873 she visited the State of Ohio, where she had formerly resided, and on her return home to Grafton she informed the defendant that she had heard her former husband, Edward Foster, had died in Ohio a short time before, and that then she and the defendant "had a talk as to whether it was necessary that we should marry again. He said that it was legal, and that we need not marry again; that we will go on as we have been, doing the best we can for our children, as long as life shall last." And then, in an answer to the question, "Did you talk over and agree as to how you should be and live in the future?" she says: "We lived together just as we had been, as man and wife. I was to be his wife, and he my husband, as long as life should last." This is the whole of the evidence in support of the alleged marriage of 1873.

The testimony of the defendant was not taken, but he, in his answer to the amended bill, denies positively that he ever made any statement or agreement such as asserted by the plaintiff, or that he ever pretended or admitted to her that she was his wife or he her husband, as both of them well knew that such was not the fact.

The Circuit Court in its final decree, entered April 1, 1886, decided in favor of the plaintiff, awarding her a divorce a mensa et thoro from the defendant, and requiring him to pay to her

$250 annually for her support. From this decree the defendant has appealed.

The first question to be considered is whether or not any marriage ever took place or existed between the plaintiff and defendant. If there was no marriage, or none is shown by proofs, then, as a matter of course, the decree of the Circuit Court must be reversed and the plaintiff's bill dismissed. It is distinctly proved, both by the depositions and documentary evidence, that the plaintiff was on January 25, 1838, formally and legally married to Edward Foster, in Belmont county, in the State of Ohio; that she lived and cohabited with said Foster as her husband from that time until about the year 1859, and had issue-from seven to ten children-by that marriage; that she knew Foster was living at the time of her alleged marriage in June, 1861, with the defendant, and that said Foster continued to be her legal husband until his death, in October, 1873. It is consequently impossible that the alleged marriage of June 9, 1861, could have taken place, or been lawful in any respect. The question of marriage, therefore, depends entirely upon the allegations of the amended bill, and the testimony in support of them. Both the facts alleged and the proofs to sustain them have been before fully stated. It is insisted for the appellee these show a valid common-law marriage, and that such marriage, under the circumstances in this case, is valid and sufficient in this State.

There is much controversy as to what constitutes a valid common-law marriage. It always has been and still is a doubtful question in England: Reg. v. Millis, 10 Clark & F. 534; 1 Bish. Mar. & Div., §§ 270, 278. In the American States where such marriages have been recognized and held valid there is considerable diversity as to their requisites. In North Carolina, Tennessee, Massachusetts, Maine, and Maryland some ceremony or celebration seems to be necessary to a valid common-law marriage, and in most or all of these States it has been questioned whether or not the statutes have not superseded common-law marriages, and that a marriage, to be valid, must be in conformity with the statutes: State v. Samuel, 2 Dev. & B. 177; Grisham v. State, 2 Yerg. 589; Com. v. Munson, 127 Mass. 459; State v. Hodgskins, 19 Me. 155; Denison v. Denison, 35 Md. 361, 379.

The rule is fully as liberal, if not more so, in New York and Pennsylvania, than it is in any of the other States. In New York it has been held that no religious form or ceremony of any kind is essential to validity of the marriage. All that is requisite in that State is that the parties should be capable of contracting, and that they should actually contract to be man and wife; but such contract must be proved to the satisfaction of the court, and may be proved by the wife when her testimony is corroborated and entitled to credit: Bissell v. Bissell, 55 Barb. 325; Van Tuyl v. Van Tuyl, 57 Id. 235. In Pennsylvania it has been decided that " marriage is, in law, a civil contract, not requiring any particular form of solemnization before officers of church or State, but must be evidenced by words in the present tense, uttered for the purpose of establishing the relation of husband and wife, and should be proved by the signature of the parties or by witnesses present when it is made. Therefore, when the evidence of the contract was the declaration of the wife that, 'about thirty-one years since, she went to the house of A. S., to live with and keep house for him, under a mutual promise and agreement that they would sustain toward each other the relation of husband and wife, and that they did thus live and cohabit together,' it was held that there was not proof of a marriage in fact:" Com. v. Stump, 53 Pa. St. 132. I have been unable to find any case in which the courts of Virginia or of this State have ever held that a common-law marriage was valid. This is certainly persuasive evidence that such marriages have never been regarded as valid in these States.

Referring to the facts in this case, it does not seem to me that they are sufficient to prove a marriage according to the liberal rule adopted in the States of New York and Pennsylvania. Before any pretense of a legal marriage the parties had lived and cohabited together for over twelve years. It is a well-settled rule of law everywhere that a cohabitation, illicit in its origin, is presumed to be of that character unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption

that the former relation continued, and must satisfactorily prove that it had been changed into that of actual matrimony by mutual consent: Foster v. Hawley, 8 Hun 68; Williams v. Williams, 46 Wis. 464; Appeal of Reading F. Ins. & Trust Co., 23 Cent. Law J. 472; Hantz v. Sealy, 6 Bin. 405.

In the case before us the testimony of the pretended wife is contradictory, and so unsatisfactory as to render it extremely improbable and unreliable. But if we admit its credibility, it falls far short of establishing any actual contract of marriage. It simply proves the continuance of the illicit association and cohabitation which is shown to have existed between the parties, without interruption, for over twelve years before the alleged marriage. The plaintiff simply says that she and the defendant did not deem it necessary to marry again, as they considered their former illegal marriage legal, and that they thereafter lived together just as they had been doing, as man and wife. There is no semblance of a change in their relations or actual agreement of marriage shown here, and this is all the evidence we have of the alleged marriage. But, in the view this court takes of the law, it is unnecessary to rest our decision upon the conclusion just indicated. We think our statute has wholly superseded the common law, and in effect, if not in express terms, renders invalid all attempted marriages contracted in this State which have not been solemnized in compliance with its provisions. The statute in force in this State in 1873, when it is alleged the marriage now in question occurred, is embraced in chapter 63, Code 1868. The first section of said chapter provides for the issuance of marriage licenses; the third, fourth, and fifth sections, by whom, and the manner in which, marriages may be solemnized; and the sixth section is as follows: "Every marriage in this State shall be under a license, and solemnized in the manner herein provided; but no marriage solemnized by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected, on account of any want of authority in such person, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage; nor shall any marriage