21 N.J.Eq. 225 (N.J.Ch. 1870), McClurg v. Terry

• Date: Invalid date
• Docket Number: .
• Citation: 21 N.J.Eq. 225
• Parties: MCCLURG v. TERRY.[a1]
• Court: New Jersey Superior Court

Page 225

21 N.J.Eq. 225 (N.J.Ch. 1870)

MCCLURG

v.

TERRY.^[a1]

Court of Chancery of New Jersey.

October Term, 1870

1. A marriage ceremony, though actually and legally performed, when it was in jest, and not intended to be a contract of marriage, and it was so understood at the time by both parties, and is so considered and treated by them, is not a contract of marriage. Intention is necessary, as in every other contract.

2. The Court of Chancery has the power to declare a marriage void, when performed in jest, and where it was not intended to be a contract of marriage.

3. The legislative acts and the constitutional provision bearing on the subject, examined.

Argued on final hearing, upon pleadings and proofs.

Mr. A. K. Brown, for complainant.

Mr. A. S. Jackson, for defendant.

THE CHANCELLOR.

The complainant seeks to have the ceremony of marriage performed between herself and the defendant, in November, 1869, declared to be a nullity. The ground on which she asks this decree is, that although the ceremony was actually performed, and by a justice of the peace of the county, it was only in jest, and not intended to be a contract of marriage, and that it was so understood at the time by both parties, and the other persons present; and that both parties have ever since so considered and treated it, and have never lived together, or acted towards each other as man and wife. The bill and answer both state these as the facts of the case, and that neither party intended it as a marriage, or was willing to take the other as husband or wife. These statements are corroborated by the witnesses present. The complainant is an infant of nineteen years, and had returned late in the evening to Jersey City, from an excursion with the defendant and a number of young friends, among whom was a justice of the peace, and all being in good spirits, excited by the excursion, she in jest challenged the defendant to be married to her on the spot, he in the same spirit accepted the challenge, and the justice at their request, performed the ceremony, they making the proper responses. The ceremony was in the usual and proper form, the justice doubting whether it was in earnest or in jest. The defendant escorted the complainant to her home, and left her there as usual on occasions of such excursions; both acted and treated the matter as if no ceremony had taken place. After some time the friends of the complainant having heard of the ceremony, and that it had been formally and properly performed before the proper magistrate, raised the question and entertained doubts whether it was not a legal marriage; and the justice meditated returning a certificate of the marriage to be recorded before the proper officer. The bill seeks to have the marriage declared a nullity, and to restrain the justice from certifying it for record.

Mere words without any intention corresponding to them, will not make a marriage or any other civil contract. But the words are the evidence of such intention,...