his own accord, or at the servant's request, comes within the rule of fellow-service, as he does within that of the master's liability. (Degg v. Midland R. R. Co. 1 Hurl. & N. 773; Althorf v. Wolf, 22 N. Y. 355; Stewart v. Harvard College, 12 Allen, 58; Booth v. Mester, 7 Car. & P. 66.) But where a party having an independent interest in the work takes part in it with another's servants, e. g., when the owner of goods assists carrier's servants in loading or unloading them, and is hurt by their negligence, he may recover. (Wright v. London & N. W. R. Co. Law R. 10 Q. B. 298; 1 Q. B. D. 252; 13 Moak, 245; 16 Moak, 314.)

Who are fellow-servants has been discussed in numberless cases from Farwell's, 4 Met. 49, to Randall v. B. & O. R. Co. 109 U. S. 478, cases collected, page 484, and it has been held impossible to exclude any of the employees of a railway company whose labors facilitate the running of trains. (Holden v. Fitchburg R. R. Co. 129 Mass. 268.) Mere superiority in grade does not change the rule. But an employee who has the direction and superintendence of a department is not a fellow-servant with those under him. He represents the master, and this is specially applicable to corporations which can only act through servants. (Corcoran v. Holbrook, 59 N. Y. 517; C. & M. R. Co. v. Ross, 112 U. S. 377; L. & N. R. Co. v. Collins, 2 Duval, 114.) A conductor is such a representative, as to the engineer, brakemen, etc. (L. & N. R. Co. v. Collins, 2 Duval, 114; but four judges dissented, Bradley, Matthews, Gray, Blatchford, holding conductor a fellow-servant.)

CHAPTER THE FIFTEENTH.

OF HUSBAND AND WIFE.*

The second private relation of persons is that of marriage, which includes the reciprocal 2 rights and 2 duties of husband and wife [see note 27, page 751]; or as most of our elder law books call them, of baron and feme. In the consideration of which I shall in the first place inquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.

I. 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 [see note 28, page 753]: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro salute animæ.a‡ And, taking it in this civil light, the law treats it as it does all other contracts: allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.||

[434] First, they must be willing to contract.

a Salk. 121.

*Chap. cited, 12 Ark. 660; 15 Am. Dec. 290.

+- Quoted, 34 Ohio St. 626.

+- Quoted with omissions, 66 Mo. 402.

"Con

+- Quoted with one omission, 4 Mo. 126, 180; with omissions, 4 Fla. 45.

Cited, 2 N. H. 278; 9 Am. Dec. 69; 21 N. H. 54; 6 Halst. 18; 2 Vt. 160; 30 Ga. 181; 8 Ala. 51.

sensus non concubitus, facit nuptias" [see note 29, page 755], is the maxim of the civil law in this case: and it is adopted by the common lawyers, who indeed have borrowed (especially in antient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.*

Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities. What those are, it will here be our business to inquire.

Now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities.? And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons, who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. But such marriages not being void ab initio, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties.¶ For, after the death of either of them, the courts of common law will b Ff. 50. 17. 30.

c Co. Litt. 33.

*Cited, 3 Marsh. A. K. 372 (star page).

+- Quoted, 6 Jones (N. C.) 362; with omissions, 20 Ohio, 5.

- Quoted, 25 N. H. 275.

1- Quoted, 6 Jones (N. C.) 362. Cited, 9 Conn. 326; 7 Ill. 628.

not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties. And therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding [435] to annul the marriage and bastardize the issue, the court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for incest. These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. c. 38. it is declared, that all persons may lawfully marry, but such as are prohibited by God's law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowlege, and fruit of children, shall be indissoluble. And (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money) it is declared by the same statute, that nothing (God's law except) shall impeach any marriage, but within the Levitical degrees; the farthest of which is that between uncle and niece. By the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowlege: in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33. (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry VIII.'s statute, and abolish e Salk. 548.

d Ibid.

f Gilb. Rep. 158.

the impediment of pre-contract, I leave to be considered by the canonists.*

The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. And, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make the contract void ab initio, and not merely voidable; not that they [436] dissolve a contract already formed, but they render the parties incapable of forming any contract at all they do not put asunder those who are joined together, but they previously hinder the junction. And, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union.†

1. The first of these legal disabilities is a prior marriage, or having another husband or wife living [see note 30, page 758]; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void: polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express, that "duas uxores eodem tempore habere non licet."

2. The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the most important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, g Bro. Abr. tit. Bastardy, pl. 8.

h Inst. 1. 10. 6.

*Cited, 19 N. H. 331; 113 Mass. 467; 12 Ark. 657; 56 Am. Dec. 290; 4 Sneed, 694; 70 Am. Dec. 272. As to affinity, 12 Conn. 94, vis 9 Vt. 30. +-+ Quoted, 20 Ohio, 5.