Sharon v. Sharon , 75 Cal. 1 ( 1888 )

McKinstry, J.

The appeals herein were taken in the lifetime of William Sharon, the original defendant. The first is from a judgment determining and declaring the validity of an alleged marriage of plaintiff and defendant, decreeing a divorce, and that plaintiff is entitled to one half of the community property. The second appeal is from an order directing the payment of counsel fees and alimony.

The court below found:—

“2. That on the twenty-fifth day of August, A. D. 1880, the plaintiff and defendant each signed a certain declaration of marriage, in the words and figures following, to wit:—,

“ ‘ In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, Sarah Althea Hill, of the city and county of San Francisco, state of California, age twenty-seven years, do here, in the presence of Almighty God, take Senator William Sharon, of the state of Nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon, of the state of Nevada. Sarah Althea Hill.

“ ‘August 25,1880, San Francisco, Cal.

“‘I agree not to make known the contents of this paper or its existence for two years, unless Mr. Sharon himself see fit to make it known. S. A. Hill.’

“ ‘In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, Senator William Sharon, of the state of Nevada, age sixty years, do here, in the presence of Almighty God, take Sarah Althea Hill, of the city and county of San Francisco, California, to be my lawful and wedded wife, do here acknowledge myself to be the husband of Sarah Althea Hill. William Sharon. Nevada.

“‘August 25, 1880/

“Which was the only written declaration, contract, or agreement of marriage ever entered into between said parties, and at the time of signing said declaration plaintiff and defendant mutually agreed to take each other as, and henceforth to be to each other, husband and wife.

“ 3. That afterward, and about the-day of September, 1880, the plaintiff and defendant commenced living and cohabiting together in the way usual with married people, although their cohabitation was kept secret, and so continued for the space of more than one year, and down to the twenty-fifth day of November, 1881, and during all of said time the plaintiff and defendant mutually assumed toward each other marital rights, duties, and obligations.

“ 4. That during all the time plaintiff and defendant so lived together, defendant visited her relations with her, escorted her to places of amusement, and introduced her to respectable families and to members of his own family, and wrote to her several letters while absent from her, in which he addressed her as ‘My dear wife/”

“6. The defendant, on or about December 6, 1881, drove plaintiff from her apartments in his hotel, in which she had resided by his direction since September, 1880, and which was the residence selected for her by the defendant, refused to longer live with or provide for her support, and has not since then lived with or sought to live with, or requested the plaintiff to return or live with him, or provide in any manner for her support.”

“8. That it is not true, as stated in the answer of defendaní, that plaintiff has either falsely or fraudulently assumed the name of Sarah Althea Sharon, but, on the contrary, that it is her real name; nor is it true that she, or any one, forged the document mentioned in the complaint and heretofore set out; on the contrary, the said document is genuine and was signed by the plaintiff and defendant at the time it purports to have been signed.

“ 9. That defendant never introduced plaintiff as his wife, nor spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to nor of him to other persons in his presence as her husband;’ that the parties were never reputed among their mutual friends to be husband and wife, nor was there at any time any mutual, open recognition of such relationship by the parties, nor any public assumption by the parties of the relation of husband and wife.”

The appellant contends that, on the findings, the judgment declaring the validity of the marriage must be reversed, and a judgment be ordered that no marriage existed between the parties. This, because of the written promise of the plaintiff that the written declaration of marriage should, at the option of the defendant, be kept secret for the period of two years, and of the facts found showing that, while their cohabitation continued, the alleged marriage was not made known by the plaintiff or defendant to third persons.

The objection that the findings do not sustain the judgment is in the nature of a demurrer to the findings. The evidence is not before us, and we are not to inquire how far, if at all, the secrecy maintained by the plaintiff and defendant, or the insertion of the written promise of secrecy on her part, tended under the circumstances to prove that no marriage was contracted. That was a matter to be argued in the court below. Here, and on this appeal, the facts set forth in the findings are admitted to be true.

If the contemporaneous promise of the plaintiff not to make known the paper writing, or its contents, for a limited period, rendered the agreement of the plaintiff and defendant to take each other as husband, and wife void, or if the parties could not, as matter of law, mutually assume marital rights, duties, or obligations, without making public their relation as husband and wife, the judgment must be reversed. Otherwise we are to consider, as conclusively establishing the marriage, the facts that plaintiff and defendant did sign the paper writing as set forth in finding 2, and mutually agreed to take each other as husband and wife; that in September, 1880, they commenced living and cohabiting together in the manner usual with married people, in an apartment furnished by him, and so continued to live and cohabit together down to November, 1881; that he wrote to her several letters, letters addressed “ My dear wife,” and that during all of said time they mutually assumed “ toward each other ” marital rights, duties, and obligations.

Section 55 of the Civil Code reads: “ 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.”

In the first sentence of the section of the code “ marriage ” is defined in terms which accord with the definition of the status or condition of marriage given by courts and learned law-writers. The civil contract of the parties is simply that they forthwith entér into a certain status or relation. The rights and obligations of that status are fixed by society in accordance with the principles of natural law, and are beyond and above the parties themselves. They cannot modify the terms on which they are to live together, nor superadd to the relation a single condition. (Schouler’s Domestic Relations, 18.)

The code declares marriage to he a personal relation “arising out of contract.” The personal relation created by the contract is not merely a contract. The contract is the portal through which the parties enter into the relation of marriage, and they can enter into that relation in no other way. Although all persons competent may rnarry at their own volition, the law fixes the rights and duties of those who are married. The section of the code defines “ marriage,” which, as distinguished from a present contract to marry, or the act of becoming married, is “ the civil status of one man and one woman united in law for life, for the discharge to each other and to the community of the duties legally incumbent on those whose association is founded on the distinction of sex.” (Bishop on Marriage and Divorce, 3.)

The contract out of which the marriage relation arises must be a contract then and there to become husband and wife. Hence, as appears from the cases cited by appellant, a contract between a man and woman to live and cohabit together, or even to assume the duties of husband and wife for a limited period, or so long as it may prove agreeable to both, or any other agreement which attempts to limit in extent or duration the rights and duties inseparably annexed to the status of matrimony, has sometimes been held not to be an agreement to become husband and wife, out of which arises the relation of marriage.

But to make the principle underlying such decisions applicable to the case at bar, it must be made to appear that, by the terms of our statute, the making public of the marriage relation is a duty or obligation annexed to the status of marriage, without which the status cannot exist. Such is the contention of appellant, based on the last sentence of section 55 of the Civil Code: “ Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations.”

It is claimed, in the first place, that the promise to keep secret the contract of marriage for a period of two years, unless defendant should waive that stipulation, controlled and gave color to the other terms of the contract so that it became, not a contract of marriage, but a contract for illicit intercourse. In the second place, it is claimed that, independent of the stipulation as to secrecy, there was no marriage because of the fact of secrecy; since with secrecy there was and could be no “ mutual assumption of marital rights, duties, or obligations,” within the meaning of the code.

The words “duties” and “obligations” are evidently used in the same sense in' the section of the code. The duties to be assumed are the obligations which flow from the relation of husband and wife. And the word “ marital ” must, to give any effect to the sentence in which it is found,- be treated as the equivalent of “conjugal”,—to include the rights and duties of the wife as well as those of the husband.

The validity of the alleged marriage we are considering must depend upon the fact that it was not made known by the parties. The promise of the plaintiff not to make it known for a period of two years, except with the consent of the defendant, was a collateral agreement, and not a condition to the marriage contract taking effect. The agreement to become husband and wife was complete. If she had published the writing called the declaration of marriage at any time, the publication would not have avoided the marriage contract, because the parties did not, if they could, agree, that the contract should become operative only in case the plaintiff should keep it secret for two years, unless in the mean time secrecy was waived by the defendant.

It is said by Mr. Bishop: “Not unfrequently the courts hold to be void some contract entered into at the time of the marriage, while the sufficiency of the marriage itself is not denied.” (Marriage and Divorce, 266.) Whatever may be the rule where some limitation is introduced into the contract of any of the obligations which accompany the state of wedlock, in such manner as to indicate that the contract would not have been entered into except upon the condition inserted, here, as we have seen, the promise not to make known the contract was an independent promise, and not a condition.

If the promise had been utterly disregarded, it could not be successfully contended that they were not married.

If the last sentence of section 55 means what appellant claims it means, there would have been no marriage in the absence of the promise on the part of plaintiff not to publish it. On the other hand, if there can be a marriage without publicity, the promise of the plaintiff that she would not make it known- for a temporary period did not affect its validity, because not an illegal promise. At the common law, an agreement to keep the marriage secret does not invalidate it. (1 Bishop on Marriage and Divorce, sec. 252, and cases cited in note.)

In the judicial decisions which speak of an open recognition of the matrimonial union, the effect of such open recognition is considered as evidence. The fact of marriage is one thing; the evidence by which it may be established is another. The fact of the publication of their relation, by the conduct and declarations of the parties, may go far to corroborate testimony with respect to an actual contract to marry. And so, in cases where the contract has not been directly proved, evidence that the parties cohabitated together and were reputed to be husband and wife, or recognized or introduced each other as such, is admissible as tending to prove, and if sufficient proves, that they had previously entered into an agreement forthwith to become husband and wife. Yet evidence of cohabitation merely, without evidence of recognition of the relation, or repute of marriage, is not sufficient to establish an inference that there had been a mutual consent to marry, in the absence of direct evidence of such consent. (Estate of Briswalter, 72 Cal. 107.)

Again, it has sometimes been said (and not incorrectly in view of the context) that at the common law marriage may be contracted per verba de prxsenti merely, or per verba de futuro cum copula. But strictly speaking, there can be no contract per verba de futuro which imposes the status of marriage. When the parties have been shown to have agreed to a future marriage, evidence of the copula is admitted to prove that they changed their consent to a future marriage into a present consent. This by reason of a presumption in favor of morality. Thus evidence, whether direct or indirect, of a contract of marriage is always evidence of a consent per verba de prsesenti.

But by our statute such present consent does not constitute marriage. (Civ. Code, sec. 55.) It must be followed by a solemnization, or by a mutual assumption of marital rights or duties. What does this mean?

It is urged that such mutual assumption is put as the alternative for “solemnization,” and as solemnization implies and requires publicity, so it is intended that the assumption of rights and duties shall be public.

By section 78 of the Civil Code, the solemnization of a marriage is mentioned as a thing distinct from the license to marry, from the authentication of the marriage, and from the record of the marriage certificate.

A marriage is solemnized when, in the presence of a judicial officer, priest, or minister, the parties declare that they take each other as husband and wife (Civ. Code, secs. 70, 71), and the officer or minister who witnesses this ceremony is said to “solemnize” the marriage; Every person authorized to solemnize marriage, who willfully solemnizes a marriage forbidden by law, or makes false return of a marriage, is guilty of a misdemeanor. (Pen. Code, secs. 359, 360.) But, if between competent persons, the solemnization makes the marriage complete; although not preceded by license or succeeded by record. Such a marriage is valid, although retained within the knowledge of those present at its solemnization, without any communication of its existence to the community at large, which, in a certain sense, is said to have an interest in all marriages, or rather an interest that the institution of matrimony be maintained in its sacred purity. By the language of section 55 of the Civil Code, the solemnization completes the marriage, although not followed by a mutual assumption of marital rights and duties; since such assumption is required only where there is no solemnization.

It may be said, however, it is giving to the word “solemnization,” in section 55, too narrow a meaning to confine it to the mere ceremony before the officer or minister; that it should be held to include the issuing of the license and the record of the certificate, with the publicity incidental to the license and record; that the purpose of the section must be to facilitate the proof of marriages by requiring their existence to be made public.

But the purpose of a statute can only be derived from its words, read in the light of the previous law. If it is so confused and uncertain that it can be given no intelligible meaning, we must consider the common law unchanged by it. The public policy of the state can only be ascertained by reference to the constitution and statutes.’ The courts cannot create a policy, and then declare, in support of the policy so created, that the legislature must have meant what it has not said. By the common law, private marriages, clearly proved; are valid; and it is a cardinal rule of interpretation that the common law continues except as altered by the statute.

It is certainly remarkable that if it was intended, consent must be followed by a “public” assumption of matrimonial rights and duties, the legislature did not say so in express terms, since, if so much was intended, the departure from the common law would be radical. It may be claimed to be equally strange, if mere “ consummation ” was meant, it was not so declared. But giving force to both of these suggestions, the utmost that could be argued from them would be that the code-makers probably meant neither of the two things,—a public assumption or mere “consummation.”

The commissioners who prepared the Civil Code of California adopted as a foundation for their labors the Civil Code prepared for submission to the legislature of New York, departing in places only from the language of the code proposed in the latter state. It may throw some light upon the question we are considering to compare sections of the proposed New York code and sections of our code.

NEW YORK CODE.

Sec. 34. Marriage is a personal relation, arising out of a civil contract, to which the consent of parties capable of making it is alone necessary.

Sec. 36. Any unmarried male of the age of fourteen years or upward, and any unmarried female of the age of twelve years or upward, and not otherwise disqualified, is capable of consenting to marriage, etc.

CALIFORNIA CODE.

Sec. 55. 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.

Sec. 56. Any unmarried male of the age of eighteen years or upwards, and any unmarried female of the age of fourteen years or upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage.

Sec. 35. Consent to a marriage may be manifested in any form, and may be proved like any other fact.

Sec. 57. Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.

The distribution of a statute into sections is arbitrary, and merely for convenience of reference. The New York and California codes may be read respectively: “The consent of capable parties is alone necessary to constitute marriage; the consent may be manifested in any form, and may be proved like any other fact.” (N. Y. Code.) “ Consent alone will not constitute marriage; it must be followed by a mutual assumption Of marital rights and duties; the consent and consummation may be manifested in any form, and proved under the same general rules of evidence as other facts.” (Cal. Code.)

The word “ consummation,” whenever used as something different from the mere consent or formal solemnization of marriage, had always been held to mean “simply sexual intercourse, copulation, nothing more nor less.” Section 57 of our Civil Code provides how this consummation may be proved. As consummation, if it does not constitute is at least included in an assumption of marital rights and duties, it is a circumstance of some significance that, when providing for the mode of proving “ consent and subsequent consummation,” nothing is said with respect to the manner of proving other rights and duties to be mutually assumed, if the proof of others is contemplated by section 55. It is a circumstance tending to show that it was the intention to change the New York code only by requiring consummation to follow mutual present consent. If more was intended, it would have been easy to say: “ The mutual assumption of marital rights, duties, or obligations maybe proved under the same general rules of evidence as facts in other cases.”

It has been suggested that " consummation,” in sections 56 and 57, is to be interpreted in the broader sense of “ completion ”; and as, by section 55, a marriage is not complete until after a public recognition of it by the parties, the consummation of sections 56 and 57 means the completion of the marriage as provided in section 55. This is only saying that, in the absence of solemnization, there is no marriage until after cohabitation known to others, or public recognition of the marriage and copulation.

This, as we shall see, the sections cannot mean; the legislature could not have intended that (after a present consent to marry) a period of cohabitation, known to others, should be necessary to the constitution of marriage, or precede its “completion”; for if so, the woman would be compelled to live with the man in such manner as that their coition would be inferred before their coition would be lawful.

Each article of the code is preceded by head-notes, numbered to correspond with the sections following, and purporting to give in brief the subject of each of such sections. These head-notes are entitled to more consideration than the “title” to an entire act. They are parts of the statute limiting and defining the sections to which they refer. To refuse to give effect to them according to their import would be to make the law, not to administer it. (Barnes v. Jones, 51 Gal. 303; McKinstry, J., in Ex parte Koser, 60 Cal. 206; Williams v. People, 45 Barb. 201; People v. Molineux, 53 Barb. 15; 40 N. Y. 119.)

As we have seen, section 57 of the Civil Code relates to the proof of “ consent and subsequent consummation.” Additional force is given to the suggestion that it was intended that consent and consummation should constitute marriage by the fact that the head-note to that section is: “ Marriage, how manifested and proved.”

It may be added, that when the propriety of requiring a public declaration to accompany unsolemnized marriages was directly called to the attention of the legislature of California, the legislature refused to act upon the suggestion, but permitted section 55 to remain as it now is. Among the amendments reported by the revisory commissioners, appointed in 1873, was one to make section 55 of the Civil Code read: “Marriage is a personal relation arising out of a civil contract, to which the consent of the parties is necessary. To render marriage hereafter contracted in this state valid, the contract must be accompanied by a solemnization, or by a public declaration, as provided in this chapter.” While adopting many of the amendments proposed by the commissioners, the legislature rejected this one.

We do not propose to decide the question whether at the common law consummation as well as consent was necessary to constitute marriage.

Mr. Bishop says: “Consummation—the copula—is no part of the marriage; it only serves, to some extent, as evidence thereof. A maxim of the civil law, equally also of the ecclesiastical, of the common,—indeed, of all law governing the subject is, Consensus, non concubitus, facit matrimonium. Hence, when parties capable of intermarrying agree to a present marriage, the relation is made thereby complete. This is true everywhere, subject to the qualification that in some countries there are laws requiring the addition of specified ceremonies and forms, but the copula gives the marriage nowhere any additional strength.” (Bishop on Marriage and Divorce, 228; and see cases cited in the note.)

And Chancellor Kent says: “ If the contract be made per verba de prsssenti without cohabitation, .... it amounts to valid marriage in the absence of all civil regulations to the contrary.” (2 Kent’s Com. 87.)

In this country, in those states where there is no statute prohibiting common-law marriages, and declaring all invalid except those solemnized in some particular form, the decided weight of authority is, that to constitute marriage, the contract per verba de prsesenti need not be succeeded by a consummation.

Nor is it necessary here to decide whether, at the common law of England, a present consent, with or without subsequent cohabitation, constituted marriage, in the absence of religious sanction, evidenced by the presence and approval of a clergyman of the established church.

In a note to section 55 of our Civil Code, the California commissioners say: “As to whether consent alone constitutes marriage: In Jewell’s Heirs v. Jewell, 1 How. 219, the court was equally divided. In Regina v. Millis, 10 Clark & F. 534, the House of Lords, on appeal from Ireland, were also equally divided on the same question. On reference of the question to the court, Tindal, C. J., gave the unanimous opinion of the court that it was not a valid marriage, and held ‘ that by the law of England, as it existed at the time of the marriage act, a contract of marriage per verba de prsesenti was indissoluble between the parties themselves, and afforded to either of them, by application to the spiritual court, the power of compelling the solemnization of an actual marriage; but such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders. The civil contract and the religious ceremony were both necessary to a perfect marriage by the common law.’ ” (Civ. Code, annotated, sec. 55.)

The opinion referred to in the note as the opinion of the court was, in the opinion of the judges, in response to questions put to them by the lords, and did not decide the case. The judgment of the Queen’s Bench was affirmed because the votes in the House of Lords for reversing or affirming it were equal. The views of the judges in their answers to the questions submitted to them in Regina v. Millis have since been doubted, perhaps overruled, in England. But the question discussed in that case was, whether by the law of England, prior to the marriage act, 26 George II., a contract per verba de prsesenti, without the intervention of a minister in orders, was sufficient to make a complete marriage, so that, by marrying a second time, the defendant made himself liable to the pains and penalties of bigamy.

In Jewell v. Jewell, 1 How. 219 b, also referred to in the note, the circuit court directed the jury that, in the absence of solemnization, “if the contract be made per verba de prsesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve.” Upon this question the supreme court of the United States was equally divided.

The reference to the two cases in the commissioners’ note was evidently to indicate that the object of the last clause of section 55 was to declare “a solemnization” not necessary, provided the mutual consent be followed by something else. The cases referred to leave unsettled the questions whether in England a religious ceremony was necessary prior to the marriage act, and whether, in some of the American states, where peculiar laws requiring certain ceremonies obtain, a solemnization in accordance with the forms required by such laws is necessary, in addition to the consent of the parties.

They are of no assistance in the present inquiry, except so far as they tend to show the purpose of the code, — already sufficiently clear from its language, — that, in the absence of solemnization, more than mere consent should be requisite to constitute marriage.

As we have said, the Civil Code of California is based upon and in the main follows the Civil Code as reported to the legislature of New York. The California com-

missioners changed section 34 of the New York code. That section provided that consent alone is necessary to constitute marriage. Our commissioners altered this by declaring, “Consent alone will not constitute marriage,” and then added the clause so often quoted. This was done with the note of the New York commissioners (to section 34) before them. That note clearly shows the object of section 34. There had been two opinions among jurists, many holding that present consent makes marriage; some that, to make a marriage, either consummation or solemnization was also requisite. The New York commissioners determined to provide that present consent, without consummation or solemnization, ■ should be sufficient. The note of the New York commissioners reads: “By 2 Bev. Stats. 138, sec. 1, marriage is declared to be a civil contract to which consent is necessary; but whether anything more than consent is necessary has been mooted, some authorities deeming that either consummation or solemnization is also requisite. (Jaques v. Public Administrator, 1 Bradf. 499; and see 2 Parsons on Contracts, 5th ed., 74.) This provision makes consent alone sufficient, and is in accordance with the views declared in Starr v. Peck, 1 Hill, 270; Jackson v. Winne, 7 Wend. 47; Caujolle v. Ferrie, 23 N. Y. 106; Hayes v. People, 25 N. Y. 390; 82 Am. Dec. 364.”

It is difficult to avoid the conclusion that the California commissioners, with the foregoing note before them, decided to adopt the position rejected by the New York commissioners, and to provide that in the absence of solemnization consent alone should not constitute marriage, but that it must be followed by “consummation.” And yet it may be said, the phraseology does excite a suspicion that something more or different was intended, since it is hard to believe that the commissioners were actuated by a hyperdelicacy in rejecting a term in that particular sentence which they subsequently did not hesitate to employ.

The difficulty of arriving at the meaning of the last ' clause of section 55 of our Civil Code was very fully set forth and illustrated by John Norton Pomeroy, late professor in the college of law of the University of California, in two articles published by him. (4 West Coast Rep. 50, 152.) These articles were referred to by counsel at the argument. The theme of the series of articles in which the two above cited are included is the necessity of applying well-known, uniform, and consistent principles of interpretation in adjudicating upon, applying, and enforcing all the various sections of the Civil Code. (3 West Coast Rep. 585.) His conclusion is, that the only method by which any certain, consistent, and just results can be attained through an interpretation of the provisions of the code is by adopting and following the principle that they are, “in general,” declaratory of common-law and equity rules. (4 West Coast Rep. 150.)

And he points out, that where the provisions of the code are clearly not merely declaratory of the common law, the great, and in some instances apparently insurmountable, difficulty is to ascertain how far the particular provision departs from or changes the pre-existing law. This arises from a defect “which may be said to characterize the entire code as a work of legislation.” “From their constant but wholly unnecessary practice of abandoning well-known legal terms and phrases, the signification, force, and effect of which had long been settled and certain, and of adopting instead thereof an unknown and hitherto unused language and terminology, as well in their ordinary definitions as in the statement of general doctrines and single rules, they constantly create an uncertainty whether they intend merely to declare and re-state, without change, a known common-law definition, doctrine, or rule, or whether, on the other hand, they intend to alter or modify such definition, doctrine, or rule; and if the latter be their general intent, they make it uncertain how far the alteration extends.”

(3 West Coast Rep. 586.) Among other illustrations of the employment of language which renders the meaning, intent, and consequent effect of a particular section “ obscure and uncertain,” he cites section 55 of the Civil Code.

With reference to that, section he says: '“Consent alone will not constitute a marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations.’ What is the meaning of this strange phrase? The phrase is absolutely unknown to the law. Does it mean that the two spouses must live openly as husband and wife,—must hold each other out to the world as husband and wife, etc.? There are strong arguments against that meaning. In the first place, the phraseology to describe exactly that condition has long been settled, and is very familiar; and if the authors of the code had such a meaning, it seems hardly possible that they should reject this familiar and expressive phraseology. Instead of saying that consent must be followed by 'habit and repute/ or 'by the parties holding themselves out to the world as husband and wife/ which would have left no doubt as to their meaning, they adopt this uncouth phrase, which does not necessarily have such a meaning. But, in the second place, such an alteration of the common-law rule seems to be entirely without any reason, and opposed to common sense. Under the law previous to the code, proof that two parties had treated each other as husband and wife, had lived together as such, and had held each other out to the world as such, was sufficient to enable a jury or court to infer and find the fact of marriage. Why? Not at all because such living and holding out of itself constitutes a marriage; but solely because from such living and holding out the court or jury may find that at some previous time the two parties did, as a fact, consent to be married,—did, as a fact, agree to be husband and wife. This conclusion is sustained by all the decisions of authority. The previous actual consent or agreement to be husband and wife is the ultimate and essential fact which the jury must find; the mode of life, the holding out, and the like, are nothing but circumstantial evidence from which that fact may be inferred. Now, when living as husband and wife, and holding out as such, were only necessary as evidence for the purpose of inferring the fact of a previous consent, it seems strange and useless to require evidence of the same kind, of holding out and living as husband and wife, and the like, when the fact of a prior consent has already been clearly established by other and independent evidence.” (4 West Coast Rep. 51.)

In a subsequent article (4 West Coast Rep. 152) the same learned writer said: “Whatever weight may he due the considerations before suggested in a former article, there are, in my opinion, equal if not greater obstacles to an interpretation which treats the section [55] as having made no material alteration in the rule as previously settled,—the common-law rule. If, by the previous rule, after verba de prsesenti, the copula was sufficient to constitute a marriage, it seems almost impossible to suppose that in the phrase, “by a mutual assumption of marital rights, duties, or obligations,’ the authors of the code and the legislature did not mean something more and different,—something additional. We may wonder at the employment of terms so unlike the usual phraseology of statutes, and may regret that words more certain and definite in their meaning were not selected; and still, if we give any fair and reasonable construction to all the language, we can hardly escape the conclusion that ‘a mutual assumption of marital rights, duties, or obligations’ imports acts and conduct of the two parties toward each other, and rights and duties belonging to the marriage relation, which cannot possibly be embraced in the word ‘copula,’ or the word ‘consummation,’ or even, perhaps, the word ‘ cohabitation.’”

There is no statement in either article that, in the opinion of the writer, a public recognition of the marriage relation is required by the code. The writer does not pretend to interpret the provision of the code, and his interpretation would not have been authoritative. His very purpose is to show the uncertainty of its language, by pointing out the objections to holding it to mean either consummation alone, or more than consummation.

Much of the force of the argument of the second article is taken away when the uncertainty of the premise on which it is based is considered. “If, by the previous rule, after verba de prsesenti, the copula was sufficient,” would seem to imply that, at the common law, the copula was necessary to constitute marriage. But, as we have seen, Mr. Bishop, in his work on marriage' and divorce, —referring to authorities in support of his position,— lays down the rule that the copula adds no force to the present consent, but the latter makes a complete marriage without the copula. Kent holds to the same view; and such is the effect of the decided weight of authority in this country. The New York cases cited in the note of the commissioners in that state are to the effect that, where the contract is per verba de prsesenti, neither consummation nor solemnization is requisite to make a complete marriage. Yet the case in Bradford, and what is said in Parsons on Contracts, induced the New York commissioners to declare in express words that neither should be necessary. The California commissioners deemed it wiser to declare that consent alone should not constitute matrimony, but it cannot be assumed that the provision of our code was based upon the hypothesis that by the previous law there was no marriage unless consent was followed by consummation.

At the most, the result of the statements of Professor Pomeroy is, that it is doubtful whether the language of section 55 of the Civil Code means that the consent must be followed by consummation, or by consummation and something more.

It is claimed that in Graham v. Bennett, 2 Cal. 503, the supreme court (by Heydenfeldt, J.), speaking of an unsolemnized marriage,—entered into in 1845,—decided that to constitute such a marriage there must be an open assumption of the relative duties of husband and wife; and that the code commissioners clearly showed their intention to adopt the rule laid down in that case. In Graham v. Bennett, supra, the facts showed that the consent was in the presence of witnesses, and was followed by open and acknowledged cohabitation as man and wife. The learned judge delivering the opinion there said; “ Marriage is regarded as a civil contract, and no form is necessary for its solemnization. If it take place between parties able to contract, an open avowal of the intention, and an assumption of the relative duties which it imposes on each other, is sufficient to render it valid and binding. The ceremony, therefore, which took place between the plaintiff and defendant, as shown by the complaint was sufficient to constitute them man and wife,” etc. The ceremony set forth in the complaint was the signing by the parties of the writing, witnessed by persons therein named, which reads: “ Marriage in the year 1845. Isaac Graham of Santa Cruz, and Catherine Bennett of San Francisco, were married at Lyant, by banns, this twenty-sixth day of September, 1845, by one who was requested to read the ceremony-, Henry Ford. This marriage was solemnized between us, Isaac Graham, Catherine Bennett. In presence of William Werm, Henry Ford.” The “ceremony” held to be sufficient to constitute the parties man and wife was the execution of the foregoing writing. By it, in the presence of the witnesses, they made open avowal of their intention, and agreed to take upon themselves the relative duties imposed by marriage. Even if the language of the court should be construed to mean more than an assumption, as proved by the ceremony or consent, it was at most but a decision that upon the facts of that case—the consent and subsequent open assumption of marital duties—the parties were married. The language of a court must always be read in view of the facts before it. This is an established canpn of legal criticism. The court did not decide that all the facts appearing in that case must exist to constitute marriage, but that the facts there appearing proved a marriage. The former could not have been intended, because it would be in violation of every precedent. The marriage involved in Graham v. Bennett took place prior to the acquisition of California by the United States, but the court assumed that the law of Mexico was the same as the common'law. It had never been held in this country that, at common law, a contract per verba de prsesenti — followed or not followed by the copula—must be succeeded by a public assumption of the relative duties arising out of the status of marriage. Nor was such an interpretation placed upon the decision of Graham v. Bennett during the twenty odd years intervening between that decision and the adoption of the codes.

While this action was pending in the court below, a judgment of the circuit court of the United States for Maryland was reversed by the supreme court of the United States. (State of Maryland for the Use of Markley v. Baldwin, 112 U. S. 490.) One of the issues there was, Was Markley, the real plaintiff, a son and heir of Daniel Lord, deceased? And it involved the validity of an alleged marriage between the deceased and the mother of the plaintiff. In the circuit court there was a general verdict for the defendants.

A witness, one Cross, testified at the trial that the deceased had admitted to him his marriage with plaintiff’s mother, and had given a certain reason for concealing his own name and taking hers; also, that after her death deceased had spoken of his marriage, and attributed all his early success to her. One of the defendants was permitted, against the objection of the plaintiff, to testify to conversations with the deceased about Gross, and that the deceased had expressed great distrust of him, calling him anything but an honest man, etc.

The supreme court held this last testimony clearly inadmissible, it being mere hearsay. For the error in admitting it, against the objection of the plaintiff, the judgment of the circuit court was reversed, and the cause remanded for a new trial. No exception seems to have been taken to the charge of the circuit judge.

Mr. Justice Field said that, as for the error mentioned the cause must go back for a new trial, it was proper to say that by the law of Pennsylvania, where, if at all, the parties were married, a. marriage could be made per verba de prsssenti, without attending ceremonies, religious or civil; that such is the doctrine of the common law. “ But where no such ceremonies are required, and no record is made to attest the marriage, some public recognition of it is necessary as evidence of its existence.” He adds, the charge of the court should direct the jury as to the necessity of such recognition in the absence of statutory regulations on the subject. And the learned judge said: “ The law of Pennsylvania, as we are advised, requires in some form such recognition. See Nathan’s Case, 2 Brewst. 149, 153; Commonwealth v. Stump, 53 Pa. St. 132.”

In Maryland v. Baldwin no witness was present at any marriage ceremony, or at any contract of marriage; a marriage, if it existed, was to be inferred from their declarations and living together (p. 493, 494). The language of the court is to be interpreted in view of the facts. If, however, as claimed by appellant, it was intended to be said that, when there is direct evidence of a contract of marriage, by words in the present tense, there must also, by the law of Pennsylvania, be evidence of a public recognition of the marriage, a reference to the two cases cited shows that the learned judge was wrongly advised as to the law of that state.

In Commonwealth v. Stump the supreme court of Pennsylvania decided: “ Where there is no proof of actual marriage, cohabitation and reputation are necessary to ground a presumption of marriage; proof of cohabitation alone is insufficient.” (Commonwealth v. Stump, 53 Pa. St. 132, 135; 91 Am. Dec: 198.)

In Nathan’s Case the court of quarter sessions held that the wife was a competent witness to prove a present contract to marry; and independent of her testimony (p. 168), the marriage was sufficiently proved by the acts and declarations of the parties; that reputation and cohabitation are sufficient evidence of marriage, and may be conclusive where the rights of third persons are affected, and the legitimacy of children called in question.

Even if the “mutual assumption,” etc., bo a broader expression than “ consummation,” it may be given full effect by holding it to include, not only consummation directly proved, as it rarely is or can be, but also the mutual taking on, by a man and woman, of marital rights and duties from which consummation may be inferred. The phrase called by Professor Pomeroy “uncouth” does not, as said by him, require that they shall “ hold themselves out to the world as husband and wife.”

The common law underlies all our legislation, and furnishes the rule of decision except in so far as the statutes have changed the common law. When the common law is departed from by a provision of the code, effect is to be given to the provision to the extent — and only to the extent—of the departure. This is not saying that the code must be strictly construed, as those terms were sometimes applied to classes of statutes prior to the codes. Every provision of the code expressed in intelligible language must be given full force and effect. But, under pretense of an interpretation,—or explanation in different language,—the courts cannot add to the significant terms of a "statute; nor, by resorting to conjecture, can they go beyond the intent derivable from the terms actually employed, considered with the pre-existing law. Certainly the courts are not authorized to declare something more must have been intended, because, in the opinion of individual judges, a greater departure from the common law would be wise or expedient. As said by Lord Stowell, secrecy sometimes attends the moct regular marriages, “from prudential reasons” (Dalrymple v. Dalrymple, 2 Hagg. Const. 54), although when prudential reasons do not appear, that may cast doubt upon the fact of marriage. As valid marriages might be secret at the common law, we cannot say that the departure in the code from the common law requires that in every case they must be public unless the words employed demand such interpretation.

The question presented by these findings (and we can know nothing of the case except from the findings) is this: Shall a man be permitted to say: “True, this woman and I agreed to enter into the marriage state, by words in the present tense. That agreement was followed by cohabitation, and by our mutually taking upon ourselves ‘toward each other’ marital rights, duties, and obligations. But we are not married, because we did not discharge a marital duty, to wit, make public the relation between us; but, on the contrary, by mutual consent, kept it secret for a period; and I never acknowledged it. The community had a right to know that we were married, or pretended to be married, and I appeal to public policy,—as declared by section 55 of the Civil Code,—and to great principles of morality, which demand that such a union as ours shall be declared to be illicit.” Surely, if the legislators had intended consequences such as would flow from upholding a party in a position like that, they would have expressed their purpose in unmistakable terms.

If the position of appellant be correct, there is no marriage, notwithstanding previous consent, until after a public recognition of the marriage relation. But from cohabitation and such recognition, sexual intercourse may properly be inferred, and there can be no lawful intercourse of that character before marriage. It would • follow, therefore, that in the absence of solemnization, a marriage could only be proved by establishing a fact from which unlawful intercourse could be inferred. On the other hand, if consummation, “the most intimate union of the sexes,” completes the marriage, and is an assumption of marital rights and duties, and the consummation may be proved directly, or as an inference from another fact from which it may be inferred, no such anomaly is presented.

The statute either means that, after present consent to marriage, the consummation (however proved) is sufficient evidence of an assumption of marital rights and duties; or the acts, other than consummation, must precede consummation; the consummation must be the last of the series of acts. If cohabitation as man and wife, to the knowledge of the acquaintances of the parties, must precede the consummation, how long must it be continued, and to what extent must it be made public, to authorize sexual intercourse? It is incredible the legislature intended that copulation may take place before the marriage is complete; or to put it in the power of the man, after he has enjoyed the person of the woman, to say, “I will proceed no further.” Yet it is the duty of the woman, after the mutual consent to present marriage, to live with .the man; and their cohabitation must, from the náture of things, create the presumption of copulation; which reduces the statute to an absurdity.

It does not require a public assumption of the marriage relation to create a presumption of consummation. The cohabitation of persons of opposite sexes, whether legal or illicit, suggests sexual intercourse (Imperial Diet.), and is evidence of it. When previous consent is

proved, cohabitation is itself evidence of an assumption of marital rights and duties, and is evidence of such assumption by means of the consummation which has completed the marriage.

It is urged there can be no “mutual assumption” of marital rights and duties which is unknown to the community at large, or to the acquaintances of the parties; that the word “mutual” requires an “open and respectful” recognition before the community “in all their social intercourse” ; that they stand to each other in the relation of husband and wife. But where the holding out to the world of the relation is evidence of a prior contract, such evidence does not necessarily depend for its effect upon amenity of manners, or upon the degree to which the parties extend to each other the affectionate respect which should attend the intercourse of husband and wife in well-ordered households. The statute does not make the validity of a marriage by consent depend upon the full performance of their mutual duties; the failure to perform certain important obligations is made ground for divorce; it may be conceded the code requires the mutual assumption of such duties.

The assumption of rights and duties by the parties must be mutual, and the code is given effect if they are assumed between and toward each other. The title of a tale by a great novelist—“Our Mutual Friend”—has been much criticised as a misapplication of terms, and it presents, perhaps, the only instance in standard literature of the application of the word “ mutual” to that which cannot be interchanged. The adjective “mutual” is defined: “Reciprocally acting or related; reciprocally receiving; reciprocally given and received; reciprocal; interchanged; as mutual love, assistance, advantage, aversion.” (Webster.) If the words had been “mutual performance” of the duties common to both, they would have demanded simply the performance of such duties to each other, and would not have required that the relation should be made public, unless the making it public is a duty inherent in the relation, such as cannot be waived; which it is not.

It is said, however, the “assumption” of the code implies publicity; that the word is ordinarily used as appearing to others in a given character, station, or relation, and necessarily conveys the idea of a public appearance. But the first definition of the lexicographer referred to in the briefs is, “the act of assuming or taking to or upon one’s self.” {Ad and sumere.) It is sometimes used to express the pretension of having or possessing; the taking on in appearance, and not in reality. But when used in the last sense, it does not necessarily mean a pretense presented to the eyes of the community, although it may include such general pretense. To adopt the illustrations of counsel, one may assume to an individual,—take upon himself by words, manner, or bearing, — in the presence of one person alone, a virtue, though he “have it not.” To deceive a single soul, the Devil hath power to assume a “pleasing shape.”

The section of the code requires that the parties shall mutually take on themselves marital rights and duties. This they agree to do when they agree to become husband and wife, but inasmuch as the section provides that the mutual assumption shall “follow” consent, it may be conceded there must be evidence of other facts, showing the assumption, in addition to direct evidence of consent; that the code does away with the presumption of consummation, which has sometimes been said to arise out of a contract per verba de prsesenti.

But the code does not declare that the fact of marriage must be proved independently of, and without regard to, direct evidence of an actual present consent. Since, as before the code, evidence of cohabitation, and that the parties, in the presence and hearing of their acquaintances,—openly, “in their social intercourse,”—

have recognized each other as husband and wife, is sufficient to prove previous consent, and therefore marriage. In effect, the contention of appellant is, that direct evidence of a consent to marry per verba de prsesenti¡ however full and satisfactory, shall count for nothing; but that in every case, in the absence of solemnization, there must be evidence sufficient, in and of itself, to prove the marriage, independent of direct evidence of an actual contract. But such independent and complete proof of the marriage is not made necessary by the words “ consent alone will not constitute marriage; it [the consent] must be followed by the mutual assumption,” etc. The language clearly implies that the “mutual assumption” is to be shown, not by evidence sufficient of itself to prove consent, but as something in addition to consent already proved.

Under the code, the fact to be proved is the existence of the relation which “arises out of a civil contract.” Beside evidence of the mutual consent of the parties, which makes the contract, there must be other evidence that they have assumed toward each other marital rights and duties.

“There are two principal ends of marriage,—a lawful indulgence of the passions to prevent licentiousness, and the procreation of children under the shield and sanction of the law.” (Stewart on Marriage and Divorce, sec. 103.) The intercourse, which is the means by which these ends are attained, is both a right and duty. Evidence that the man and woman have enjoyed the right and discharged the duty, whether, direct, or consisting of proof of another fact from which the intercourse may be inferred,—as cohabitation, —is, when preceded by present consent to marry, evidence that the parties to the contract have actually assumed all the duties incident to marriage. Whether, in addition to and in the light of the consent, there is sufficient evidence that they have taken on themselves marital rights and duties, must depend upon the circumstances proved in each case.

When parties agree to a present marriage, they mutually agree to take on themselves the obligations appertaining to the marriage state; but the code requires that to justify a finding of marriage, there shall be additional evidence that they have assumed marital rights or obligations. If a case be supposed, where, immediately after consent to present marriage, the parties have permanently separated, there would, perhaps, be no marriage; not because they would not have mutually agreed to assume marital obligations, but because the section of the code requires evidence of other and subsequent facts showing the actual assumption of marital obligations. In considering the evidence of such facts subsequently occurring, however, the direct evidence of previous consent is not to be rejected. All the evidence is to be taken together.

As we have seen, cohabitation alone does not prove marriage, because the relation between aman and woman cohabitating may not be that of husband and wife. But cohabitation, with evidence of a reputation that they were married, created by the conduct of the parties, proves a previous consent, and marriage. So, under the code, cohabitation with direct evidence of previous consent proves a marriage, because, when viewed with the previous consent, cohabitation is evidence of a mutual assumption, etc. Cohabitation being proved, direct proof of previous consent is at least as effective as is evidence of reputation from which the previous consent may be inferred.

So far as we are informed, the only law-writer, other than Professor Pomeroy, who has employed language similar to that of our Civil Code is Mr. Stewart, in his work on marriage and divorce, published in 1884. At section 103, speaking of “the consummation,” he defines consummation as “subsequent sexual intercourse between the parties, or the assumption of the rights, duties, and obligations of husband and wife, from which such intercourse may be implied.”

In a note he refers to section 55 of the California code, and to the dissenting opinion of Judge Mills of the Kentucky court of appeals, in Dumaresly v. Fishly, 3 A. K. Marsh. 377. That was an action of slander, in which the defendant pleaded that the plaintiff was his wife. The court held that the position that consummation, in addition to present consent, was necessary to constitute a valid marriage in fact, was “ neither founded on reason nor supported by authority”; citing 1 Ruth. Inst. 345; Co. Lit. 35; 1 Bla. Com. 433. The dissenting judge thought that a marriage not solemnized according to statutory formalities “ should require consummation evidenced by cohabitation.” If the learned author intended to say that the California code bad adopted the rule thought by Judge Mills to be the proper one, then the code simply requires that the consent shall be followed by cohabitation from which sexual intercourse may be inferred. It is only by the inference to be drawn from cohabitation as husband and wife cohabit that such intercourse is ordinarily proved. In his dissenting opinion, Judge Mills nowhere suggests that a public recognition of the marriage relation is necessary; and the language of Mr. Stewart, read in the light of his note, intimates that the consummation is the important matter; that the consummation may be inferred from the mutual assumption of marital rights and duties, and that such assumption may be proved under our code by evidence of Co habitation.

Cohabitation may be lawful or illicit. It is lawful if preceded by consent, by words in the present, however such consent may be proved. When cohabitation follows consent, it is evidence that the parties have mutually assumed marital rights and duties, as it is evidence that the marriage has been completed by consummation.

The rights and duties of married persons are manifold.

Except as to property rights, the code does not pretend to enumerate them, except by saying that the parties contract “ toward each other obligations of mutual respect, fidelity, and support.” (Civ. Code, sec. 155.) The common-law decisions do not define them save in general terms. Nor does the code provide that consent shall not constitute marriage unless followed by a full enjoyment and complete performance of all the rights and duties appertaining to marriage. Whatever else the section may mean, it does not mean that present consent followed by consummation and cohabitation, and by other acts tending and sufficient to show that the parties have mutually assumed conjugal rights and duties, shall be held no marriage, at the instance of one who may have become dissatisfied with the relation, in case it is shown that either party has not actually discharged all the duties which an exalted view of the subject may induce one to believe to be incidents of marriage.

The court below found as facts that, during a certain period after the consent to marry, “ the plaintiff and defendant lived and cohabited in the way usual with married people, .... and mutually.assumed toward each other marital rights, duties, and obligations.” If, as we have said, they might mutually assume marital rights and duties, although their relation was kept secret, the insertion of the words “toward each other” does not vitiate the finding, and the finding of facts is conclusive on this appeal.

Moreover, marital rights and duties are correlative; there can be no rights without corresponding duties. The rights of the wife are to those things which she may claim of the husband, and vice versa. The claim to some of her rights may be waived temporarily, and when waived, there is no corresponding duty to be done while the claim is in abeyance. To make public the marriage relation, notwithstanding a mutual assent to privacy, may be conceded to be a duty, when the claim to publicity is asserted; but it is not an absolute duty to be performed while the mutual consent to privacy continues. Our conclusion is, that the provision of the code requiring a mutual assumption of marital rights and duties to follow consent does not make it indispensable to the validity of the marriage that the relation between the parties shall be made public. The section of the code does not purport to require it. The policy of the common law does not demand it, and the policy of the common law has not been changed by statutory enactment.

It would be giving the words of the statute a meaning which does not accord with just and established rules of interpretation to hold that these parties, who, as found by the superior court, mutually consented to become husband and wife, thereafter cohabited in the manner usual with married people, and mutually assumed toward each other marital rights and duties, were not married. We cannot so construe the code to meet the supposed exigencies of the particular case.

On the 16th of February, 1885, the following order was entered in the cause:—

“ It is hereby ordered that the defendant pay to the plaintiff, or her order, on or before the ninth day of March, 1885, the .sum of seven thousand five hundred dollars as alimony herein, and the further sum of twenty-five hundred dollars on or before the eighth day of April, 1885, and the same amount on or before the eighth day of each and every month thereafter, as alimony, until the further order of this court.

“ It is further ordered that the defendant pay as counsel fees herein, on or before the ninth day of March, 1885, the sum of fifty-five thousand dollars, that is to say, twenty thousand dollars to Messrs. Tyler and Tyler, or order; ten thousand dollars to George Flournoy, or order; ten thousand dollars to Walter Levy, or order; ten thousand dollars to David S. Terry, or order; and five thousand dollars to R P. Clement, or order; and in case any of such payments are not made on or before the time herein fixed, then the party or the parties entitled thereto shall have execution therefor, pursuant to'section 1007 of the Code of Civil Procedure of the state of California.”

The court has held the foregoing order to be appeal-able.

The order, so far as it relates to counsel fees, is, in effect, a judgment that the defendant in this action pay to Messrs. Tyler and Tyler, and to the other counsel named, respectively, the several sums mentioned,—aggregating fifty-five thousand dollars,-—and that Messrs. Tyler and Tyler and each of the others shall have execution for the sum directed to be paid to them or him.

Section 137 of the Civil Code provides while “an action for divorce is pending the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” There can be no doubt the order must require the alimony to be paid to the wife, and it seems equally plain it was intended that the money ordered to be paid, as necessary to prosecute or defend the action, should be ordered paid to her.

Section 137 regulates the matter in this state, and that section contemplates an order to pay to the wife. It would seem that where the statutes are silent on the subject, temporary alimony and suit money can be awarded to the wife. (2 Bishop on Marriage and Divorce, sec. 396.) But when awarded, either by statute or upon general principles, “suit money” is awarded to her; and by section 137 counsel fees, if ordered to be paid, are ordered as part of .her necessary expenses for prosecuting or defending the action for divorce. There is a great deal of American authority that the wife’s legal agent cannot recover compensation of the husband, in a distinct action, for his services rendered her in a suit for divorce. (Cases cited to section 391, 2 Bishop on Marriage and Divorce.) He certainly cannot recover a judgment for such services, past and contemplated, upon a motion in the suit for divorce. The order here was a direct judgment for money in favor of persons not parties to the suit, and to that extent was irregular and void.

Moreover, it would seem to be an undeserved reflection upon the administration of justice in the superior courts to hold that at least six lawyers were “necessary” to present the merits of plaintiff’s cause. The wife cannot, as of course, employ as many attorneys as she chooses, and compel the husband to furnish funds for whatever she is to pay them. The rule was laid down in Massachusetts to be, that the sum required to be paid by him is not to exceed what, under all the circumstances, may be reasonable for the compensation of counsel and the payment of other charges, without regard to what might properly be demanded, as between counsel and client, by the counsel actually employed. (Baldwin v. Baldwin, 6 Gray, 341.)

In Williams v. Williams, where it would seem several members of the bar were employed, the supreme court of Wisconsin said: “There can be no doubt whatever that any one of the attorneys for plaintiff, without any severe strain upon his professional ability, would have prosecuted this action to the same result.” (29 Wis. 528.)

Making every allowance for the suggested difficulties in the prosecution of the case at bar and the labors of counsel,—the full extent of which does not, perhaps, appear on this appeal,—we can conceive of no case of the character of the present which can require, as necessary, the array of counsel who appeared for the plaintiff herein. Of course the “necessity” must be gauged by the services rendered in a cause such as are strictly those of attorney and counselor. Independently of the fact that the order was irregular, in that it provided for a recovery and collection by those not parties to the action, we are of the opinion the amount was too large, and beyond the legal discretion to be exercised by the court.

This action was commenced November 1, 1883. On the twenty-third day of October, 1883, George W. Tyler, member of the firm of Tyler and Tyler, to whom a fee was allowed by the order above recited, entered into a written agreement with the plaintiff herein, in words and figures following:—

“ This agreement, made and entered into this twenty-fourth day of October, 1883, by and between Mrs. William Sharon, formerly Sarah Althea Hill, of the city and county of San Francisco, party of the first part, and George W. Tyler of the same place, party of the second part,—

“Witnesseth, that whereas, about three years ago the party of the first part entered into a contract of marriage with one William Sharon, as provided by the Civil Code of California, no ceremony having been performed; and whereas, said William Sharon is now disposed to repudiate said marriage, and deny its binding force and efficacy; and whereas, said party of the first part has employed said party of the second part to commence and prosecute to final hearing or settlement all such suit or suits asmay .be necessary to vindicate the good name of the party of the first part, and secure to her a division of the common property of herself and her husband, or a just and suitable provision for her support out of his property, and to defend all such suits as may be brought against her by said Sharon,—

“Now, therefore', it is mutually agreed by and between the parties hereto as follows: The party of the second part, as the attorney of the party of the first part, is to commence and prosecute to final determination, and defend, all such suits as may be brought, or may be necessary or proper, for the complete vindication of the name of the party of the first part, and the enforcement of her rights as against said William Sharon, and is to advance the money to pay the costs and all ordinary expenses of any litigation that may ensue in carrying out the objects of this agreement, and, as compensation, he is to receive one half of all sums realized or secured to her by such litigation. The party of the second part agrees that he will not settle with said Sharon, or dismiss or compromise any suit or suits that may be brought, without the consent of the party of the first part, obtained, and of her agent, W. M. Neilson. The party of the second part agrees to pay one third of the amount necessary to secure the legal services of D. M. Delmas, or some other person she may desire, as counsel on such litigation, provided his services can be secured for the sum of one thousand dollars.

“ The party of the first part agrees to pay the party of the second part one half of all money or property secured from said William Sharon by settlement, promise, or litigation, and said party of the first part agrees not to settle or compromise with said Sharon without the consent of the party of the second part.

“This agreement is executed in duplicate.

“ In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written. Executed in duplicate.

“ October 24, 1883. “Geo. W. Tyler,

“S. A. Hill.

“Witness: F. A. Robney.”

On the hearing of the motion for alimony and counsel fees, no fact was presented to the court below tending to prove either the incapacity of Mr. Tyler or any indisposition on his part fully to discharge all the obligations assumed by him under his agreement, or that he had in any way failed to perform them. On the contrary, there was evidence that up to that time he had done, with the assistance of others, all he had agreed to do. If he had not, that, perhaps, would have been sufficient reason for not allowing him twenty thousand dollars, or, any other sum.

It is not necessary to decide whether, as between the parties, the written agreement is valid and enforceable; and for obvious reasons we express no opinion as to its validity. In Reynolds v. Reynolds, 67 Cal. 177, this court declined to decide the effect on an order for counsel fees, “ of an agreement between plaintiff and her attorney that the latter have, as compensation for his services, a share of the property ultimately recovered.” Conceding that the agreement cannot be enforced, in case, as the final result of the litigation, the plaintiff shall realize a share or portion of the community property, the agreement was a fact which should have influenced the action of the court below. If it had appeared at the hearing of the motion that Mr. Tyler, actuated solely by a desire to vindicate justice and the good name of the plaintiff, had promised to prosecute the action without compensation, that he was fully competent and had prosecuted it, the circumstances would show that she had no necessity for money to pay counsel. The question is not whether, as between the parties, counsel ought to be paid, but whether the wife has need of money to prosecute her action.

We can neither assume that plaintiff will, nor that she will not, perform her promise to Mr. Tyler if the event contemplated shall occur. Counsel learned in the law must be supposed to have considered and determined to their own satisfaction whether a contingent arrangement of the character mentioned could be enforced, and to have relied upon the contract or upon the.honor of their client to fulfill her promise when she should be in a position to do so. They ought not now to be permitted to say for her, or for themselves, that they are entitled to compensation from another source.

If counsel had abandoned her cause, it might perhaps have been necessary for the court to provide the plaintiff means for securing legal assistance.

We think the order directing the defendant to pay fifty-five thousand dollars counsel fees should be reversed.

In what we shall say with respect to the remaining question,—whether the court below erred in directing the payment to the plaintiff of certain sums as alimony pendente lite,—we shall confine ourselves to the points made by counsel for appellant.

In a suit for divorce, when the marriage is denied by the defendant’s answer, three things must be made to appear on application for temporary alimony: the marriage,—by satisfactory evidence showing, at least prima facie, a marriage in fact; the needs of the party applying for the order; and the “faculties” or ability of the husband to furnish the support ordered. (2 Bishop on Marriage and Divorce, secs. 386,402.) Evidence of these things has been called “ auxiliary proofs ”; it is evidence subsidiary to and in support of the order. The making of the order implies a finding of the marriage as to and for the purposes of the order. But it does not determine the issue made by the pleadings, so as in any degree to affect the final judgment. It has been said that it is not necessary to prove the marriage as fully, or the faculties as exactly, on a preliminary application for a temporaay allowance, as will sustain a final decree. (2 Bishop on Marriage and Divorce, sec. 386; Brinkley v. Brinkley, 50 N. Y. 184.) And it is distinctly to be understood that, in affirming an order for temporary alimony, the court expresses no opinion upon the merits of the main controversy, or as to what should be its final determination. (Brinkley v. Brinkley, supra.)

It is claimed by appellant that, as the main purpose of the action was to obtain a decree declaring the validity of the alleged marriage, — and the principal issue was marriage or no marriage,—the plaintiff should not have been allowed a support for the time occupied in contesting that issue, and the order was on its face unauthorized, or at least excessive. But the suit was not brought merely to secure a decree declaring the validity of the marriage. The complaint contains all the averments necessary to a complaint in a suit for divorce, including allegations of causes for a divorce, and it prays for a decree of divorce. In every action for divorce, the marriage must be averred by the plaintiff, and if it be denied by the answer of the defendant, it must be proved. The only fact alleged in the complaint, in addition to the marriage and causes for divorce, is that the defendant had refused to recognize the marriage. But in his answer the defendant denies the marriage. In this state of the pleadings, the allegation that, prior to the commencement of the action, the defendant had denied or refused to recognize the marriage, did not make it necessary for the plaintiff to introduce other or different evidence than such as would have been necessary if the allegation, as to his previous denial of the marriage, had not been inserted. The application for alimony should be treated,' therefore, as made in an action for divorce, the marriage being denied by the answer.

It is said by counsel for appellant that, in this case, the court is called on to determine whether “the opinion, judgment, and findings” are sufficient to justify the conclusion of the court below, that the marriage relation existed at the commencement of the action, and thereupon to make the order for temporary alimony.

The order was made February 16, 1885, and the findings and judgment were subsequently filed and entered. The opinion referred to was filed December 24, 1884. It was filed after, the trial of the action; refers to and discusses portions of the evidence given at the trial; discusses questions of law arising thereon, and foreshadows the findings to be afterward filed. It is now before us only because incorporated in an affidavit of the defendant, used on the hearing of the motion for alimony and suit money.

It is urged that the opinion clearly shows that, in the mind of the judge below, it was sufficient, to constitute an unsolemnized marriage, for the parties to enter into a secret marriage contract, secretly to indulge in sexual intercourse, etc.; that the court below erred in this view, and therefore there was no marriage, and the order for alimony should be reversed.

What has been said with reference to the appeal from the judgment is, in our view, a sufficient response to this point.

It is further urged that the order should not have been made,—or at least the amount allowed is excessive, —because, in his opinion, the judge below declared that the plaintiff, as a witness, had sworn falsely to various matters, and that she had produced and attempted to introduce in evidence fabricated and forged documents. If she attempted to support her cause by forged papers, or by her own perjury, her conduct was evidence tending to prove an admission of the falsity or fraudulent character of her claim. And if, as a witness, she willfully swore falsely with respect to any material matter, her whole testimony was to be distrusted, and it was in the power of the court below to reject all of it. But the evidence given at the trial is not before us, and we cannot say how far the testimony of the plaintiff was corroborated as to such of her statements, if any, as were accepted as true by the court below; nor can we, in the absence of the evidence given at the trial, say but that, as to the material issues, the evidence may have been sufficient to sustain the conclusion reached by the judge in his opinion, even after rejecting all the testimony of the plaintiff, and giving due weight to the discredit cast upon her claim by her resort to fraud in maintaining it.

We cannot say, as the case comes to us, the court should have allowed nothing as alimony.

Nevertheless the evidence before the court below, when the order for alimony was made, shows that the fact of marriage was warmly contested, and that the alleged marriage was not made public. As appears from the opinion, the plaintiff had testified that when “ the contract ” was signed the defendant had agreed to let her have five hundred dollars a month for her expenses. His payments to her always aggregated at least five hundred dollars; but “ in many instances,” the sums given during a month were largely in excess of five hundred dollars. Conceding that, for the purposes of the order, the implied finding of the marriage should be held conclusive on this appeal, the actual conditions should have been considered in fixing the amount of the temporary allowance.

The order for temporary alimony always precedes the final judgment. After the decree for divorce is granted for the offense of the husband, the court may compel the husband to make a suitable allowance to the wife for her support during her life, etc. (Civ. Code, sec. 139.) And if a dissolution of the marriage be decreed, on the ground of the adultery or extreme cruelty of the husband, the community property may be assigned to the parties in such proportions as the court may deem proper. (Civ. Code, sec. 146.) The order for permanent alimony may provide for the payment of the allowance from the appearance of the defendant in the action, or from its commencement. (Wilson v. Wilson, 45 Cal. 402.)

Temporary alimony should, of course, under all ordinary circumstances, be less than permanent alimony. It is not given as the ultimate award of justice, but as a needful step in the course of ascertaining what justice demands. (2 Bishop on Marriage and Divorce, sec. 458.)

No uniform rule can be laid down with respect to the amount to be allowed for support pendente lite. The husband’s income is but one of the elements entering into the inquiry. Mr. Bishop says a common rule of the English ecclesiastical courts is “ subject to variations,” to allow for temporary alimony about one fifth of the joint income, though the proportion will vary according to circumstances,—sometimes as little as one eighth being given,—and that the English practice has been generally followed in this country. (2 Bishop on Marriage and Divorce, secs. 455, 457, 460.) An examination of the cases in which such general statements are made shows that they were cases in which the marriage was not disputed.

On the other hand, in New York, even where the marriage is admitted, a wife proceeding against the husband is, according to some of the judicial decisions there, allowed in general no more than will meet her actual wants; the object of the rule being to discourage vexatious suits, and other like abuses, and to prevent indiscreet friends from fomenting family quarrels. Mr. Bishop says of the New York practice: “A yet stronger claim to favor is its admirable equity, when with it another rule, sometimes resorted to in this state, is permitted to operate; namely, to let the permanent alimony commence from the date of the suit, deducting from it the temporary alimony already paid.” (2 Bishop on Marriage and Divorce, sec. 461.) As we have seen in California the decree for permanent alimony may provide for its payment from a date anterior to the order.

But without adopting the New York rule in its strictness, it seems very clear that the amount of temporary alimony named in the order appealed from is excessive.

Where the income of the husband is very large, and the parties have publicly lived together in a style conformable to such income, a just allowance would seem to be one sufficient to enable the wife to continue the enjoyment of many luxuries which habit has made apparent necessities; this, however, subject to the limitation, that, while her suit is pending, she is to live in the discreet and quiet manner appropriate to one whose domestic relations are being made the subject of public investigation, and without expenditures for mere display or the gratification of personal vanity.

In the case now here the plaintiff never enjoyed a portion of the defendant’s income accordant with the position of his recognized wife. Assuming every fact in her favor, she was, at the commencement of their relations, willing that the marriage should be kept secret for a definite time, and, during that period, to live in comparative obscurity upon an allowance of five hundred dollars a month. .That large sum (however small a portion of the defendant’s actual income) was amply sufficient for her comfortable support, and to supply her with many of the appliances of wealth. An order providing for the continuance during the pendency of the action of the sum that the defendant had agreed to pay her during their cohabitation, and until their marriage should be made public, would surely have provided fqr her reasonable, not to say liberal, support; whatever was more than reasonable was excessive. The discretion of the court below is a legal discretion, to be reasonably exercised. “Abuse of discretion ” in making such orders does not necessarily imply a willful abuse, or intentional wrong. In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason,—all the circumstances before it being considered.

An application for temporary alimony may be made at any time,—at least after answer. The fact that, in this case, the application was made so late does not alter the principle on which it is to be determined. Ordinarily, when the application is heard, the ultimate decree cannot be anticipated, — the plaintiff may fail to establish any cause of action. When the marriage is denied, although the marriage may be shown prima facie on the hearing of the motion, it is unreasonable to allow the wife, for her support pendente lite, not only more than is necessary to supply her actual wants, but more than the defendant agreed to pay her until the marraige should be openly acknowledged, that sum being fully sufficient to secure every comfort and many of the luxuries of life.

The judgment appealed from (entered on the nineteenth day of February, A. D. 1885) is affirmed. The judgment or order appealed from (made and entered the sixteenth day of February, 1885), directing the payment of alimony to the plaintiff and the payment of counsel fees, is modified by striking out therefrom the words “the sum of seven thousand five hundred dollars as alimony herein, and the further sum of two thousand five hundred dollars on or before the eighth day of April, 1885,” and inserting in the stead and place of those words “the sum of one thousand five hundred dollars as alimony herein, and the further sum of five hundred dollars on or before the eighth day of April, 1885.” And the judgment or order appealed from (so as aforesaid made and entered on the sixteenth day of February, 1885) is further modified by striking out therefrom the portion thereof which reads: “It is further ordered that the defendant pay as counsel fees herein, on or before the ninth day of March, 1885, the sum of fifty-five thousand dollars; that is to say,—twenty thousand dollars to Messrs. Tyler and Tyler, or order; ten thousand dollars to George Flournoy, or order; ten thousand dollars to Walter Levy, or order; ten thousand dollars to David S. Terry, or order; and five thousand dollars to E. P. Clement, or order; and in case any of such payments are not made on or before-the time herein fixed, then the party or parties entitled thereto shall have execution therefor, pursuant to section 1007 of the Code of Civil Procedure of the state of California”; and the portion of said order of February 16,1885, «so as aforesaid providing for the payment of counsel fees is hereby reversed.

Temple, J., Searls, 0. J.., and Paterson, J., concurred.