で。 7. Chicago, M. & St. P. R. Co., 39 N. W. Rep. (Wis.) 129; Low v. R. Co., 3 Atl. Rep. (N. H.) 739; 5 Am. & Eng. Encyc. of Law 31. By "market value" is meant such a price as the vendor could obtain after ample time taken to effect a sale. Railway v. Woodruff, 5 S. W. Rep. (Ark.) 792. The question is, what is the value of land sought to be condemned for any purpose, not what it is worth to the Railroad Co. Stinson v. R. Co., 6 N. W. Rep. (Minn.) 784. The "market value" is what the land was worth at the time it was condemned, not what it was worth at the time of the location of the improvements. Stafford v. City of Providence, 10 R. I. 567. See EMINENT DOMAIN, vol. 6, p. 567. Where There Is No Evidence of Value, the Face Value Is Deemed to be the "Market Value."-In Meixell v. Kirk patrick, 29 Kan. 679, BREWER, J., observes: "We do not doubt that a municipal bond so far resembles an ordinary chose in action that where no evidence of value is offered, its face value is to be deemed the market value, but we think that it must be also conceded that such securities have become so abundant, and so much received as an article of ordinary commerce, that they possess, strictly speaking, a 'market value,' and, when such market value is shown, that it is to be deemed as the measure of damages for any conversion. 'Market value' signifies a price established by public sales, or sales in the way of ordinary business." Proof of Market Value.-See Bullard v. Stone, 8 Pac. Rep. (Cal.) 17. "Market Value" of Leases.--In Lawrence v. Boston, 119 Mass. 126, on the trial of a petition under the St. of 1871, ch. 382, § 7, Massachusetts, by the lessee of a part of a building, for the assessment of damages occasioned by the taking of the land on which the building stood by the city, the court instructed the jury as follows: "The value of the leases is their market value. 'Market value' means the fair value of the property as between one who wants to purchase and one who wants to sell any article, not what could be obtained for it under peculiar circumstances, when a greater than its fair price could be obtained; not its speculative value; not a value obtained from the necessities of another. Nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction, under the hammer. It is what it would bring at a fair public sale, when one party wanted to sell and the other to buy. The fact, therefore, that one of these lessees, Lawrence, as has been argued by his counsel, did not want to move, wanted to stay there, would have paid a very large sum to stay there, is not a test of market value, because it is not a case of one who wants to sell and one who wants to buy. If Lawrence had wanted to go out, the question is, what would his lease have brought? Not what it would have been worth to him if he had wanted to stay there, because it may have been of greater value or of less value to him than its value upon the market. The question for you to consider is, if Lawrence wanted to sell this lease, what could he have obtained for it upon the market, from parties who wanted to buy and would give its fair value?" In Dwight v. County Commissioners, II Cush. (Mass.) 201, the court said: "The market value is a near and perhaps the closest approximation to the true value." See also Edmunds v. Boston, 108 Mass. 235; Cobb v. Boston, 112 Mass. 181; Jacksonville & Southeastern R. Co. Co. v. Walsh, 106 Ill. 253; Green v. City of Chicago, 97 Ill. 370; Everett v. Union Pac. R. Co., 59 Iowa 243; Chicago & Evanston R. Co. v. Jacobs, 110 Ill. 414; King v. Minneapolis Union R. Co., 32 Minn. 224. In Green v. The City of Chicago, 97 Ill. 370, the "market value" was spoken of as the minimum of compensation. What is meant by the market value is not the price that the land would bring at a forced sale, but what it, or land similarly situated, would bring at a sale after due notice and under fair conditions. Somerville & Easton R. Co. 7. Doughty, 22 N. J. L. 495; Fall River Print Works v. City of Fall River, 110 Mass. 428; Howard v. City of Providence, 6 R. I. 514; Gardner v. Brookline, 127 Mass. 358. In Everett v. Union Pac. R. Co., 59 Iowa 243, the court said in charging the jury, "Market value is what it would bring when sold as such property is ordinarily sold in the community where it is situated.'" In Kiernan v. C. I. Y. & C. R. Co., 123 Ill. 188 and R. R. Co. v. Moore, 15 ་་ MARQUE.-See LETTER OF MARQUE. N. E. Rep. 164, it was held that "the price fixed should be the price at which a sale could be inade in the market for cash. It has been objected, in Brown v. Calumet River R. Co., 18 N. E. Rep. 284, that such a rule made a distinction between a cash value and a market value, but the objection, after consideration, was overruled. Depreciating in Market Value.-The makers of a promissory note deposited in pledge with the payee certain certificates of shares in a corporation, and also a life policy of insurance of one of the makers of the note, calling for $5,000. The certificates of stock proved to be counterfeits and worthless. The contract of the parties provided that on default of payment of the note at maturity the pledgee might sell the pledge, and also "in event of said security, or any part thereof, depreciating in market value," that the pledgee might, either before or after maturity of the note, sell the pledge, either at public or private sale, and waived any and all notice of the sale to the pledgors. Held, that the words "depreciating in market value" had no reference to the security of the certificates of stock, for, being worthless, their value could not depreciate; and that a sale by the pledgee before the maturity of his debt did not pass the absolute title, but that the pledgors might redeem the same by payment of the note when due. Nat. Bank of Ill. v. Baker, 128 Ill. 534. The "market value" is the price at which goods can be replaced for money in the market; not the retail value or price for which they are sold at retail. Wehle v. Haviland, 69 N. Y. 448. A "market value," as signifying a price established by public sales, or sales in the way of ordinary business, as of merchandise, is not necessary to the assessment of damages, or the appraisal of property which is the subject of a judicial valuation. Property is of ten the subject of such legal valuation, for which no proof of value in the market could be given, because it is not brought into the course of trade, and is not known in the market, and therefore is incapable of any estimate in that mode. In such cases the real value is to be ascertained from such elements of value as are attainable. Murray 7. Stanton, 99 Mass. 345. Circumstances Peculiar to Plaintiff.-Plaintiff sent goods by the railroad company defendant to his travelling salesman at Cardiff. Through defendant's negligence, the goods were delayed until the traveller had left Cardiff. In consequence, plaintiff lost the profits which he would have derived from a sale at Cardiff. Held, that in the absence of notice to the defendant of the object for which the goods were sent, the plaintiff could not recover from them such profits as damages for the delay. The court held that "the market value of the goods was their value in the market independently of any circumstances peculiar to the plaintiff, and that the profits that would have been made by the sale of the goods at Cardiff through the plaintiff's traveller being present could not be recovered." Great Western R. Co., v. Redmayne, L. R., 1 C. P. 329. See also Borries v. Hutchinson, 18 C. B., N. S. 445; Hadley v. Baxendale, 9 Ex. 341. Query whether knowledge by carrier of purpose would entitle to damages for delay, in the absence of contract to that effect. Wood's Mayne on Damages 400 (*263). Resale of Land.-A co-owner of land, selling the same representing that he has the authority of all the other owners, is liable to the vendee in case the others disavow his sale. The damages is the difference between the contract price and the market price, besides costs. In case of sale to another vendee by the lawful owners, the sum obtained on the effectual sale is prima facie evidence of the market price. Godwin 7. Francis, L. R., 5 C. P. 295. The rule of Flureau v. Thornhill, 2 W. Bl. 1078, "is confined to the single case of failure of title." Engell v. Fitch, L. R., 4 Q. B. 665; Godwin v. Francis, L. R., 5 C. P. 308. See Sikes . Wild, 4 B. & S. 421. Bad faith was once thought to render the proposed vendor liable for loss of the bargain. 1 Sutherland on Damages 150. See the cases reviewed in Wood's Mayne 53. Difference between sum bid at auction sale of land and that bid at resale is a proper criterion against the first bidder who refused to comply with his bid. Gardner v. Armstrong, 31 Mo. 535. See also Springer 7. Berry, 47 Me. 330. The market value of the land at the time of a breach of contract of sale, with interest from that date, is the true rule of damages in action for such breach. Brinckerhoff v. Phelps, 24 Barb. (N. Y.) 100. MARRIAGE (See DIVORCE; DOMICIL; HUSBAND AND WIFE). I. Preliminary Matters Relating to Marriage. 470. 1. Definitions, 470. 2. Contracts to Marry (Breach in Restraint of Marriage, 474. 6. Contracts to Provide for Marriage Property Rights (Marriage Settlements), 479. 7. Contracts in Evasion of Marriage Rights, 479. II. Essentials of a Marriage, 482. 1. Essentials in General, 482. a. Competent Parties, 482. b. A Contract of Marriage, 482. c. A Marriage Celebration or Marriage Formalities, 482. d. A Consummation, 482. 2. Valid, Void, Voidable and Illegal Marriages, 482. 3. Conflict of Laws, 486. 4. Capacity of Parties as an Es- 5. Capacity of Parties, 487. b. As to Mental Capacity, 489. f. Race, 498. g. Former Marriage, 499. 6. Consent of Parties, 508. a. As to Its Necessity, 508. b. As to Its Form, 511. c. As to Its Effect, 514. [496. III. 7. Celebration or Ceremonies of Marriage, 514. a. Necessity, 514. c. Effect, 518. 8. Consummation of Marriage, Proof of Marriage, 519. 1. In General, 519. [518. 2. Presumptions in General, 519. 7. Proof in General, 522. 8. Records, Certificates, etc., 523. 9. Witnesses, 525. 10. Parties as Witnesses, 526. II. Cohabitation and Repute, 527. 12. When Proof by Cohabitation and Repute Is Sufficient, 529. 13. When Celebration and Actual Marriage Must be Proved, 530. 14. Proof of Foreign Marriages.. 531. 15. Proof Under Special Statutes, 531. IV. Nullity Suits, 532. 1. In General, 532. 2. Factitation of Marriage, 532. 3. Kinds of Nullity Suits, 533. 4. Declaring Void Marriage Void Where No Decree Is Necessary, 533. 5. Nullifying Voidable Marriage Where Decree Is Necessary, a. Furisdiction, 535. b. Causes, 536. c. Parties, 536. d. Effect of Decree, 537: [535 V. Penalties Attending Illegal Marriages, 538. I. PRELIMINARY MATTERS RELATING TO MARRIAGE-1. Definitions.-Marriage is the legal status or condition of husbands and wives (see HUSBAND AND WIFE, vol. 9, p. 520), just as infancy is the legal status or condition of persons under age. A marriage is the combination of acts by which a man and a woman become husband and wife.1 1. In Stewart's Marriage and Divorce, ch. 11, are found the following definitions: Marriage: The legal conditions under which man and woman may lawfully cohabit and have legitimate children. The conditions are precedent, continuing and subsequent. A Marriage: Those legal conditions which must exist or be performed before man and woman may lawfully co habit constitute a marriage. Valid and Invalid: A marriage is valid when all these conditions exist or are performed; invalid when one or more of them is wanting. Legal and Illegal: A marriage is legal when all the provisions of law relating thereto have been complied with; illegal when one or more of them has been omitted. Valid and legal: A marriage if legal must be valid, but a valid marriage may be illegal. Void, voidable and prohibited: A void marriage is not a marriage at all; it is invalid and illegal. A voidable marriage is one which is valid until duly avoided, or void until duly confirmed; thus it may be valid or invalid, and it is illegal. A prohibited marriage is a valid marriage, in respect to which some one has done or omitted something prohibited or commanded by law, sometimes under penalty; it is simply illegal. Husband, Wife, Children: After a valid marriage between them, man and woman are husband and wife, and their offspring are legitimate or legal children. The married state: Those continuing conditions which determine the legal position of husband and wife with regard to each other, their children and the rest of the community, constitute the status of marriage, or the marriage or married state. Dissolution: The married state may come to an end wholly by the death of one of the parties; partially by the act of one or both the parties; and wholly or partially by act of law. Decrees of nullity and of divorce: A decree separating parties validly married is a decree of divorce; a decree declaring a void marriage void, or making a voidable marriage void, is a decree of nullity. Results of dissolution: After dissolution, the parties, or the survivor, have special rights and liabilities; the conditions subsequent of marriage apply. Divisions: Marriage laws thus fall into three great divisions: (1) the formation of marriage; (2) the marriage state; (3) the dissolution of marriage. Some other definitions are as follows: "Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law. And such contract is good and valid if the parties (1) were at the time of making it willing to contract, (2) able to contract, and (3) actually did contract in the proper forms and solemnities required by law." I Black. Com. 439. "A contract." "The most beneficial institution of society." 2 Kent Com. 75, 76. "It is a present and perfect consent the which alone maketh matrimony, without either public solemnization or carnal copulation, for neither is the one nor the other the essence of matrimony, but consent only." Swinburne, Esq. 4. "A civil contract regulated and prescribed by law, and endowed with civil consequences." Story Conf. L. 108. "A contract according to the form presented by the law, by which a man and woman, capable of entering into such a contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and his wife.” Shelford M. & D. I. M. & D. I. "A lawful coupling and joining together of a man and woman in an individual state or society of life, during the lifetime of one of the parties; and this society of life is contracted by the consent and mutual good will of the parties toward each other." Ayliffe Paregon Jur. 359. "Marriage is, first, that act by which a man and woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife. The act of marriage having been once accomplished, the word comes afterwards to denote the relation itself." Schouler Dom. Rel. 22; Hus. & W. 11. "The civil status of one man and one woman united in law for life, under the obligation to discharge to each other and the community those duties which the community by its laws holds incumbent on persons whose association is founded on the distinction of sex." I Bish. M. & D. 3. "Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties or obligations." Hart's Cal. Civ. Code 55. "Union of one man and one woman so long as they shall both live, to the exclusion of all others, by an obligation which, during that lifetime, the parties cannot of their own volition or act dissolve, but which can be dissolved only by the authority of the state." PERKINS, J., 19 Ind. 57. "Is to be considered in law as a civil contract, to which the consent of parties is essential; the marriage ceremony may be regarded either as a civil contract or as a religious sacrament; but the marriage relation shall only be entered into, maintained or abrogated as provided as provided by law." Kan. Rev. L. 1881, 3121. Is a civil contract to which the consent of the parties is essential." Rev. Laws of Ark. 1874, 4171; Col. 1877, p. 611; Ind. ISSI, 5324; Iowa 1880, 2185; Minn. 1878, p. 623; Mo. 1879, 3264; Neb. 1881, p. 341; Nev. 1873, 195; N. Y. 1881, p. 2331; T More generally, marriage is the set of legal terms or conditions. under which a State allows its people to live in sexual union. In all countries one finds the intercourse of the sexes regulated and a system of marriage more or less complex adopted, the nuptials being accompanied by more or less ceremony and the durability and nature of the union varying greatly. In international law, all the various systems of marriage are not recognized, the line being drawn, seemingly, at polygamous and incestuous unions, which are not regarded as marriages at all. (See CONFLICT OF LAWS, vol. 3, p. 601, n. 2.) Many disputes have arisen over the definition of marriage, and some of these are discussed in the notes, where there will also be found a list of general authorities on the subject of this title.2 Marriage is not a contract, nor is the relation of husband and wife a contractual relation ;3 but there are many contracts which are connected with marriage, which will now be discussed. (See also UNLAWFUL CONTRACTS RELATIVE TO MARRIAGE, vol. 9, p. 918.) Wash. 1881, 2380; Wis. 1878, 2328. For other definitions and discussions see Mr. Bishop's work, 1 Mar. & D., ch. 1. 1. Herbert Spencer, Data_of Sociology, vol. I, pt. 3; Encyc. Brit., vol. 15, p. 565; Duntze v. Levett, 3 Eng. Ec. 300, 495, 502; Maguire v. Maguire, 7 Dana (Ky.) 181. 2. Bishop on Marriage and Divorce has a world wide reputation; Stewart on Marriage and Divorce contains a brief logical statement of the law with a great number of authorities; Schouler on Husband and Wife is sometimes cited. 3. Marriage Not a Contract. - The consent of the parties is essential to a valid marriage, but, as will appear further on, it is only one of several essentials, and does not alone make a marriage. Marriage is constantly referred to as a civil contract, but in such cases it is intended to emphasize the word civil and not the word contract, and to mark the fact that under modern law marriage is not controlled by the peculiar mandates and dogmas of particular churches or sects. That the distinctive rights and obligations of married persons arise, not from any contract between them, but by law, is seen from the following facts: (1) The obligations and rights of husband and wife are not only mutual, but also to and against the community. HUSBAND AND WIFE, vol. 9, p. 789; 1 Bish. M. & D., § 4; Niboyet v. Niboyet, 4 L. R., P. D. 11; Maguire v. Maguire, 7 Dana (Ky.) 181. v'. (2) Except as to property the parties cannot by contract before marriage settle their rights and obligations. MARRIAGE SETTLEMENTS, post; Duntze v. Levet, Serg. 68; 3 Eng. Encyc. 360, 385, 397; Lindo . Belisaris, 1 Hog. Con. 216; Holmes z'. Holmes, 4 Barb. (N. Y.) 295; Sandford 7. Sandford, 5 Day (Conn.) 353; Crane v. Meginnis, 1 Gill & J. (Md.) 463; Harding v. Alden, 9 Greenl. (Me.) 140. (3) Nor can they after marriage by contract merge or modify them. HusBAND AND WIFE, vol. 9, p. 789; MARRIAGE SETTLEMENTS, post; Ditson v. Ditson, 4 R. I. 87. (4) These rights and obligations may change with a change of residence. Dicey Domicil, Rules 46, etc. CONFLICT OF LAWS, vol. 3, p. 499. (5) They may change by a change of law. DIVORCE, Vol. 5. p. 746; Townsend v. Griffin, 4 Har. (Del.) 440. (6) Disregard of them gives no right of action for breach of contract. 1 Bish. M. & D., § 4. (7) They may be put an end to by divorce, although the contract was for life, without impairing the obligation of any contract. DIVORCE, Vol. 5, p. 746. The latest of this subject from high authority is found in Maynard v. Hill, 125 U. S. 190; 31 L. Ed., p. 659, MR. JUSTICE FIELD saying: "It is also |