MARITAL. That which belongs to marriage; as marital rights, marital
duties.
2. Contracts made by a feme sole with a view to deprive her intended husband
of his marital rights, with respect to her property, are a fraud upon him, and
may be set aside in equity. By the marriage, the husband assumes the duty of
paying her debts, contracted previous to the coverture, and of supporting her
during its existence; and he cannot, therefore, be fraudulently deprived, by the
intended wife, of those rights which enable him to perform the duties which
attach to him. 2 Cha. R. 42; Newl. Contr. 424; 1 Vern. 408; 2 Vern. 17; 2 P.
Wms. 357, 674; 2 Bro. C. C. 345; 1 Ves. jr. 22; 2 Cox, R. 28; 2 Beav. 528; 2 Ch.
R. 81; White's. L. C. in Eq. *277; 1 Hill, Ch. R. 1, 4; 13 Maine, R. 124; 1
McMull. Eq. R. 237 3 Iredell's Eq. R. 487; 4 Wash. C. C. R. 224.
MARITAL PORTION. In Louisiana, this name is given to that part of a
deceased husband's estate, to which the widow is entitled. Civil Code, 334, art.
55; 3 Mart. N. S. 1.
MARITIME. That which belongs to or is connected with the sea.
MARITIME CAUSE. Maritime causes are those arising from maritime
contracts, whether made at sea or on land, that is, such as relate to the
commerce, business or navigation of the sea; as, charter parties,
affreightments, marine loans, hypothecations, contracts for maritime service in
building, repairing, supplying and navigating ships, contracts and quasi
contracts respecting averages, contributions and jettisons; contracts relating
to marine insurance, and those between owners of ships. 3 Bouv. Inst. n.
2621.
2. There are maritime causes also for torts and injuries committed at
sea.
3. In general, the courts of admiralty have a concurrent jurisdiction with
courts of law, of all maritime causes: and in some cases they have exclusive
jurisdiction.
MARITIME CONTRACT. One which relates to the navigation of the sea.
2. The admiralty has jurisdiction in case of the breach of such contract,
whether it has been entered into on land or at sea. 4 Wash. C. C. R. 453; see 2
Gallis. 465; 2 Sumn. 1; Gilp. 529.
MARITIME LAW. That system of law which relates to the affairs of the
sea, such as seamen, ships, shipping, navigation, and the like.
MARITIME LOAN. A contract or agreement by which one, who is the
lender, lends to another, who is the borrower, a certain sum of money, upon
condition that if the thing upon which the loan has been made, should be lost by
any peril of the sea, or vis major, the lender shall not be repaid, unless what
remains shall be equal to the sum borrowed; and if the thing arrive in safety,
or in case it shall not have been injured, but by its own defects or the fault
of the master or mariners, the borrower shall be bound to return the sum
borrowed, together with a certain sum agreed upon as the price of the hazard
incurred. Emer. Mar. Loans, c. 1, s. 2; Poth. h. t. Vide Bottomry; Gross
Adventure; Interest, maritime; Respondentia.
MARITIME PROFIT, mar. law. The French writers use the term maritime
profit to signify any profit derived from a maritime lean. Vide Interest
maritime.
MARK. This term has several acceptations. 1. It is a sign traced on
paper or parchment, which stands in the place of a signature, usually made by
persons who cannot write. 2 Cart. R. 324; M. & M. 516; 12 Pet. 150; 7 Bing.
457; 2 Ves. 455; 1 V. & B. 362; 1 Ves., jr. 11. A mark is now held to be a
good signature, though the party was able to write. 8 Ad. & El. 94; 3 Nev.
& Per. 228; 3 Curt. 752; 5 John. 144. Vide Subscription.
2. - 2. It is the sign, writing or ticket put upon manufactured goods to
distinguish them from others. Poph. R. 144; 3 B & C. 541; 2 Atk. R. 485; 2
V. & B. 218; 3 M. & C. 1; Ed. Inj. 814. Vide Trade Marks.
3. - 3. Mark or marc, denotes a weight used in several parts of Europe, and
for several commodities, especially gold and silver. When gold and silver are
sold by the mark, it is divided into twenty-four carats.
4. - 4. Mark is also in England a money of accounts, and in some other
countries a coin. The English marc is two-thirds of a pound sterling, or 13s.
4d., and the Scotch mark is of equal value in Scotch money of account. Encyc.
Amer. h. t.
MARKET. A public place appointed by public authority, where all sorts
of things necessary for the subsistence, or for the conveniences of life, are
sold.
2. Markets are generally regulated by local laws.
3. By the term market is also understood the demand there is for any
particular article; as, the cotton market in Europe is dull. Vide 15 Vin. Ab.
42; Com. Dig. h. t.
MARKET OVERT, Engl. law. Market overt is an open or public market;
that is, a place appointed by law or custom for the sale of goods and chattels
at stated times in public.
2. In London, every day except Sunday, is market day. In the country,
particular days are fixed for market days. 2 Bl. Com. 449.
3. It is a general rule that sales of vendible articles made in market overt,
are good not only between the parties, but are also binding on all those who
have any property or right therein. Id. 2 Chitt. Com. Law, 148 to 154; Com. Dig.
Market, E; Bac. Abr. Fairs and Market, E; 5 B. & A. 624; Dane's Abr. chap.
45, a 2.
4. There is no law recognizing the effect of a sale in market overt in
Pennsylvania. 3 Yeates R. 347; 5 Serg. & Rawle, 130; in New York; 1 Johns,
480; in Massachusetts; 8 Mass. R. 521; 14 Mass. R. 500; in Ohio; 5 Ohio, R. 203;
nor in Vermont. 1 Tyl. R. 341; nor indeed in any of the United States. 10 Pet.
161.
MARLEBRIDGE, STATUTE OF. The name of a statute passed the 52 Hen. III,
A. D. 1267, so called because it was enacted at Marlebridge. Barr. on Stat.
58.
MARQUE AND REPRISAL. The name given to a commission granted by the
supreme power of a state to a private person for the purpose of seizing the
property of a foreign state or its subjects. Wheat. Law of Nations, 340. Vide
Letters of Marque.
MARRIAGE. A contract made in due form of law, by which a free man and
a free woman reciprocally engage to live with each other during their joint
lives, in the union which ought io exist between husband and wife. By the terms
freeman and freewoman in this definition are meant, not only that they are free
and not slaves, but also that they are clear of all bars to a lawful marriage.
Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4, s. 1; Shelford on Mar. and
Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to contract, Able to
contract, and have actually contracted.
3. - 1. They must be willing to contract. Those persons, therefore, who have
no legal capacity in point of intellect, to make a contract, cannot legally
marry, as idiots, lunatics, and infant; males under the age of fourteen, and
females under the age of twelve, and when minors over those ages marry, they
must have the consent of their parents or guardians.
4. There is no will when the person is mistaken in the party whom he intended
to marry; as, if Peter intending to marry Maria, through error or mistake of
person, in fact marries Eliza; but an error in the fortune, as if a man marries
a woman whom he believes to be rich, and he finds her to be poor; or in the
quality, as if he marry a woman whom he took to be chaste, and whom he finds of
an opposite character, this does not invalidate the marriage, because in these
cases the error is only of some quality or accident, and not in the person.
Poynt. on Marr. and Div. ch. 9.
5. When the marriage is obtained by force or fraud, it is clear that there is
no consent; it is, therefore, void ab initio, and may be treated as null by
every court in which its validity may incidentally be called in question. 2
Kent, Com. 66; Shelf. on Marr. and Div. 199; 2 Hagg. Cons. R. 246; 5 Paige,
43.
6. - 2. Generally, all persons who are of sound mind, and have arrived to
years of maturity, are able to contract marriage. To this general rule, however,
there are many exceptions, among which the following may be enumerated.
7. - 1. The previous marriage of the party to another person who is still
living.
8. - 2. Consanguinity, or affinity between the parties within the prohibited
degree. It seems that persons in the descending or ascending line, however
remote from each other, cannot lawfully marry; such marriages are against
nature; but when we come to consider collaterals, it is not so easy to fix the
forbidden degrees, by clear and established principles. Vaugh. 206; S. C. 2
Vent. 9. In several of the United States, marriages within the limited degrees
are made void by statute. 2 Kent, Com. 79; Vide Poynt. on Marr. and Div. ch.
7.
9. - 3. Impotency, (q. v.) which must have existed at the time of the
marriage, and be incurable. 2 Phill. Rep. 10; 2 Hagg. Rep. 832.
10. - 4. Adultery. By statutory provision in Pennsylvania, when a person is
convicted of adultery with another person, or is divorced from her husband, or
his wife, he or she cannot afterwards marry the partner of his or her guilt.
This provision is copied from the civil law. Poth. Contr. de Mariage, part 3, c.
3, art. 7. And the same provision exists in the French code civil, art. 298. See
1 Toull. n. 555.
11. - 3. The parties must not only be willing and able, but must have
actually contracted in due form of law.
12. The common law requires no particular ceremony to the valid celebration
of marriage. The consent of the parties is all that is necessary, and as
marriage is said to be a contract jure gentium, that consent is all that is
needful by natural or public law. If the contract be made per verba de presenti,
or if made per verba de futuro, and followed by consummation, it amounts to a
valid marriage, and which the parties cannot dissolve, if otherwise competent;
it is not necessary that a clergyman should be present to give validity to the
marriage; the consent of the parties may be declared before a magistrate, or
simply before witnesses; or subsequently confessed or acknowledged, or the
marriage may even be inferred from continual cohabitation, and reputation as
husband and wife, except in cases of civil actions for adultery, or public
prosecutions for bigamy. 1 Silk. 119; 4 Burr. 2057; Dougl. 171; Burr. Settl.
Cas. 509; 1 Dow, 148; 2 Dow, 482; 4 John. 2; 18 John. R. 346; 6 Binn, 405; 1
Penn. R. 452; 2 Watts, R. 9. But a promise to marry at a future time, cannot, by
any process of law, be converted into a marriage, though the breach of such
promise will be the foundation of an action for damages.
13. In some of the states, statutory regulations have been made on this
subject. In Maine and Massachusetts, the marriage must be made in the presence,
and with the assent of a magistrate, or a stated or ordained minister of the
gospel. 7 Mass. Rep. 48; 2 Greenl. Rep. 102. The statute of Connecticut on this
subject, requires the marriage to be celebrated by a clergyman or magistrate,
and requires the previous publication of the intention of marriage, and the
consent of parents; it inflicts a penalty on those who disobey its regulations.
The marriage, however, would probably be considered valid, although the
regulations of the statutes had not been observed. Reeve's Dom. Rel. 196, 200,
290. The rule in Pennsylvania is, that the marriage is valid, although the
directions of the statute have not been observed. 2 Watts, Rep. 9; 1 How. S. C.
R. 219. The same rule probably obtains in New Jersey; 2 Halsted, 138; New
Hampshire; 2 N. H. Rep. 268; and Kentucky. 3 Marsh. R. 370. In Louisiana, a
license must be obtained from the parish judge of the parish in which at least
one of the parties is domiciliated, and the marriage must be celebrated before a
priest or minister of a religious sect, or an authorized justice of the peace;
it must be celebrated in the presence of three witnesses of full age, and an act
must be made of the celebration, signed by the person who celebrated the
marriage, by the parties and the witnesses. Code, art. 101 to 107. The 89th
article of the Code declares, that such marriages only are recognized by law, as
are contracted and solemnized according to the rules which it prescribes. But
the Code does not declare null a marriage not preceded by a license, and not
evidenced by an act signed by a certain number of witnesses and the parties, nor
does it make such an act exclusive evidence of the marriage. The laws relating
to forms and ceremonies are directory to those who are authorized to celebrate
marriage. 6 L. R. 470.
14. A marriage made in a foreign country, if good there, would, in general,
be held good in this country, unless when it would work injustice, or be contra
bonos mores, or be repugnant to the settled principles and policy of our laws.
Story, Confl. of Laws, 87; Shelf. on M. & D. 140; 1 Bland. 188; 2 Bland.
485; 3 John. Ch. R. 190; 8 Ala. R. 48.
15. Marriage is a contract intended in its origin to endure till the death of
one of the contracting parties. It is dissolved by death or divorce.
16. In some cases, as in prosecutions for bigamy, by the common law, an
actual marriage must be proved in order to convict the accused. See 6 Conn. R.
446. This rule is much qualified. See Bigamy.
17. But for many purposes it may be proved by circumstances; for example,
cohabitation; acknowledgment by the parties themselves that they were married;
their reception as such by their friends and relations; their correspondence, on
being casually separated, addressing each other as man and wife; 2 Bl. R. 899;
declaring, deliberately, that the marriage took place in a foreign country; 2
Moo. & R. 503; describing their children, in parish registers of baptism, as
their legitimate offspring; 2 Str. 1073; 8 Ves. 417; or when the parties pass
for husband and wife by common reputation. 1 Bl. R. 639; S. C. 4 Burr. 2057;
Dougl. 174; Cowp. 594; 3 Swans. R. 400; 8 S. & R. 159; 2 Hayw. R. 3; 1
Taylor, R. 121; 1 H. & McH. 152; 2 N. & McC. 114; 5 Day, R. 290; 4 R.
& M. 507; 9 Mass. R. 414; 4 John. 52; 18 John. 346. After their death, the
presumption is generally conclusive. Cowp. 591; 6 T. R. 330.
18. The civil effects of marriage are the following: 1. It confirms all
matrimonial agreements between the parties.
19. - 2. It vests in the husband all the personal property of the wife, that
which is in possession absolutely, and choses in action, upon the condition that
he shall reduce them to possession; it also vests in the husband right to manage
the real estate of the wife, and enjoy the profits arising from it during their
joint lives, and after her death, an estate by the curtesy when a child has been
born. It vests in the wife after the husband's death, an estate in dower in the
husband's lands, and a right to a certain part of his personal estate, when he
dies intestate. In some states, the wife now retains her separate property by
statute.
20. - 3. It creates the civil affinity which each contracts towards the
relations of the other.
21. - 4. It gives the husband marital authority over the person of his
wife.
22. - 5. The wife acquires thereby the name of her husband, as they are
considered as but one, of which he is the head: erunt duo in carne una.
23. - 6. In general, the wife follows the condition of her husband.
24. - 7. The wife, on her marriage, loses her domicil and gains that of her
husband.
25. - 8. One of the effects of marriage is to give paternal power over the
issue.
26. - 9. The children acquire the domicil of their father.
27. - 10. It gives to the children who are the fruits of the marriage, the
rights of kindred not only with the father and mother, but all their kin.
28. - 11. It makes all the issue legitimate.
Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h. t.; Com. Dig.
Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr. 194; Ayl. Parergon, 359; 1 Bro.
Civ. Law, 94; Rutherf. Inst. 162; 2 Supp. to Ves. jr. 334; Roper on Husband
& Wife; Poynter on Marriage and Divorce; Merl. Repert. h. t.; Pothier,
Traite du Contrat de Marriage; Toullier, h. t.; Chit. Pract. Index, h. t.;
Dane's Ab. Index, h. t., Burge on the Confl. of Laws, Index, h. t.; Bouv. Inst.
Index, h. t.
MARRIAGE BROKAGE. By this expression is meant the act by which a
person interferes, for a consideration to be received by him, between a man and
a woman, for the purpose of promoting a marriage between them. The money paid
for such service is also known by this name.
2. It is a doctrine of the courts of equity that all marriage brokage
contracts are utterly void, as against public policy; and are, therefore,
incapable of confirmation. 1 Fonb. Eq. B. 1, ch. 4, s. 10, note a; 1 Story, Eq.
Jur. 263; Newl. on Contr. 469.
MARRIAGE PORTION. That property which is given to a woman on her
marriage. Vide Dowry.
MARRIAGE, PROMISE OF. A promise of marriage is a contract entered into
between a man and woman that they will marry each other.
2. When the promise is made between persons competent to contract matrimony,
an action lies for a breach of it. Vide Promise of Marriage.
MARRIAGE SETTLEMENT. An agreement made by the parties in contemplation
of marriage by which the title to certain property is changed, and the property
to some extent becomes tied up, and is rendered inalienable. Rice's Eq. R. 315.
See 2 Hill, Ch. R. 3; Ril. Ch. Cas. 76; 8 Leigh, 29; 1 Dev. & Bat. Eq. 389;
2 Dev. & Bat. Eq. 103; 1 Bald. 344; 15 Mass. 106; 1 Yeates, 221; 7 Pet. 348;
4 Bouv. Inst. n. 3947. Vide Settlement, Contracts.
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