Evening journal., 1921-06-04
contInued from First Page.

IenneWlh, Z. D. delivering the
opinion Of the court;
As we understand the arguments.
the contentious OF the plaintiff may
be summarized as follows:
% That the facts agreed upon
In the case stated show there was a
marriage between the parties, good
at common Law.
CD That at common law an in
formal or non-ceremonial marriage
was valid II there was an agreement
per verba de praesenti between the
parties that they would live together
as husband and wife; and that there
was such an agreement in this case.
CD That the common law OF Eng
land was adopted by this state, and
that part Of Il which related to mar
riage became the law OF this State,
and was such at the time the mar
riage in question was consummated.
Cd That while the statutes Of
this State have directed how mar
riages should be performed and have
gone so far as 10 declare when they
shall be valid. no statute has ever
declared that a common law. or nom
ceremonial marriage shall be void or
invalid.
(5) That practically every State
in this country having statutes sub
stantially similar to ours. and In
which there is no statute making
such marriages invalid. has recog-
nized them as valid.
90 That our present marriage
law expressly recognizes such mar
4 riages as valid by providing that
nothing therein contained shall be
deemed or taken to render any COM
mon law or other marriage, other
wise lawful. invalid by reason OF the
failure TO take out a license as is
therein provided.
The contentious Of the defendants
are;
% That the common law re-
specting marriages was never adopt
ed in this State.
(2) That even II Il was. the mar
riage In question was not a good
marriage at common law because not
contracted by words Of present con-
sent
CD That a non-ceremonial mar
riage was not good at common law
(D That while a large majority
Of the States OF this country have
seen 1T to recognize common law
or non-ceremonial marriage there
are some that have not, and reasor
as well as sound policy require tina
our s-ate should not recognize sucf
marriage.
(5) That the legislation Of thii
State, while not expressly declaring
such a marriage void or Illegal
nevertheless. through its entire his
tory unmistabably show that onl
a ceremonial marriage is valid, AM
by the strongest kind Of implication
4 declares that common law or non
! ceremonial marriage is invalid.
We have to admit that the pre-
ponderance Of judicial and text gu
- thority is in favor Of the validity q
,, a non-ceremonial marriage eve
? when the statutes direct how mar
p riage shall be performed. and whe
IT shall be legal. And all such ac
- Indications are based on the Leg
= principle that while such statut
regulate the mode Of entering in'
L the contract Of marriage. they do M
5 confer the right. Hence they al
l. not within the principle, that whei
d a statute confers a right and confer
d a remedy for its enforcement, Oh
o remedy is exclusive. II is conced
n ed. Of course, that a statute ma
y take away a common law right, bt
il Is insisted that there is always
. presumption that the Legislature ha
4 no such intention unless Il is plainl
expressed.
In the leading case OF Meister v
Moore. 90 u. s. s26. the court said
"A statute may declare that no maj
n riages shall be valid unless they ar
solemnized in a prescribed mannei
but such an enactment Is a very di'
ferent thing from a law requirin
e all marriages to be entered into
n the presence OF a magistrate or
e clergyman, or that IT be precede
n by a license, or a publication
j. banns. or be attested by witnesses
= While the defendants conter
that a marriage is not valid at con
Ie mon law without a ceremony th'
It do not insist on such contention
= this case, because the great majo
l. ity OF the States hold that such ma
IS riage was valid at common law
j. and they claim that such a contei
tion is unnecessary for the dete
d mination OF this case.
a The plaintiff contends that Il
d. common law respecting marrial
le was never adopted in this State b
'b cause the entire subject was ful
h. covered by legislation. which neg
ID tives the existence Of the comml
re law in this particular. Il is n
principle upon which the defendar
mainly rely, and in support Of it q
following authorities are cited;
(Here the authorities are quoted
In this State It has been held IN
the common law of England Is
force only so far as IL has be
adopted in practice, and so far
Is, concerns our condition and circui
es stances. Constitution OF 1875, s.
lis %; starr and Company VS.. Lev
Do and Purden, 3 Harr. 40; State
nd Williams. 3 Houst. 526.
n 1t is argued that when this Stf
ed had covered the subject OF maria
Ia by legislation, and such legislati
cv was inconsistent with the comm
n law. II cannot be held that the col
n mon law respecting marriage !
ever been adopted in practice,
n, was adopted to our circumstan'
"a and conditions.
u. It is undoubtedly true that the Il
80 islation OF this State respecting ms
riage fully covers the subject, a
- show by the strongest implicatiC
az least, that the common law, so
81, as II relates to marriage. was n
III favored or applicable. We are