of fact in the case, as we will hereafter show. | being a letter written July 24, 1892, by theThe case proceeded to the trial before a jury respondent to her sister, in Ohio, containing of the question thus submitted to them. Of references to her relations to Hulett; as, for course, the contest was over the genuineness example, where she speaks of him as "my of Hulett's signature to the marriage contract. husband" and "your brother Hulett." If While evidence was introduced as to various Hulett had been in no way connected with this collateral facts tending more or less directly to letter, so that it would have been the mere throw light on this question, the bulk of the statement of the respondent herself, it would evidence consisted of the testimony of experts, have been inadmissible. But the testimony of properly so called, and of persons acquainted the respondent was that she wrote it in the with Hulett's handwriting, as to whether his presence of Hulett, and then handed it to him purported signature to the marriage contract to read; that he read it, put it in an envelope. was genuine or a forgery. As is usual in such sealed it, and put it in his pocket. She further cases, the testimony of these witnesses was testified that she subsequently received it back very conflicting; but the jury answered the from her sister, to whom it was written. This question submitted to them in the affirmative, letter, according to respondent's testimony, was and it is not claimed, and could not be success- written the day before Hulett's death. The fully, that the evidence did not justify the next morning he left home to take the cars to verdict. Hence, unless errors of law, duly ex- go to Duluth, but died suddenly at the station, cepted to, occurred during the trial of this is while waiting for the train. After his death, sue, it must stand as a settled fact, with all its a number of letters, addressed, and apparently legal consequences. that Hulett and the intended to be mailed, were found in his pocket respondent did execute the marriage contract by the undertaker, who gave them to a nephew on the 7th of January, 1892. This disposes of of the deceased, who put stamps on them, and the first assignment of error. posted them. As this letter reached the person 2. Of the various assignments of error re- to whom it was written, the fair inferences from lating to the rulings of the court admitting or the evidence are that this was one of the letexcluding evidence on the jury trial only three ters found in Hulett's pocket after his death, -the ninth, tenth, and fourteenth-are worthy that the envelope in which it was inclosed was of special notice. The appellants offered in addressed, and that these letters were put in evidence a mortgage on real estate executed by his pocket by Hulett for the purpose of posting Hulett alone on the 31st of May, 1892, in the them when he reached the city. These facts, certificate of acknowledgment of which the if true, amounted to such a recognition of and notary described Hulett as a single man. This assent to the statements contained in the letter was excluded by the court. Counsel then of as to make them, in effect, the joint declarafered to prove by other documents that tions and statements of both Hulett and the Hulett, subsequent to the date of the alleged respondent, and therefore competent as his admarriage contract, continued to make con- missions. It is urged very strenuously by veyances of property and execute legal instru- counsel for the appellants that the testimony of ments in which he was designated as a single the respondent, by which she was thus enabled and an unmarried man in the same manner as to connect Hulett with the contents of her letter, prior to said date." This offer was likewise impinges upon the statute that it shall not be excluded. Counsel then offered in evidence a competent for any party to an action or inbill of sale executed by Hulett on May 31, terested in the event thereof to give evidence 1892, in the certificate of acknowledgment of therein of or concerning any conversation with which the notary described Hulett as a single or admission of a deceased person relative to man. This offer was accompanied by a state- any matter at issue between the parties. Gen. ment of counsel that this bill of sale was Stat. 1894, § 5660. It was held in Chadwick "simply an additional document on the same v. Cornish, 26 Minu. 28, followed in subsequent line." This offer was also excluded. In view decisions, that the language of the act refers of the specific offers which thus preceded and only to spoken words. If it was a question of followed the general offer, we think the latter first impressions, it might admit of discussion must be construed as meaning, not that Hulett whether the statute ought not to be construed described himself as a single man in the body in accordance with the views of the late Chief of the instrument, but merely that he was so Justice Gilfillan, so as to include any admisdescribed in the certificate of the officers who sion of the party, whether by word or act. took his acknowledgments. But, however The peculiar facts of the present case illustrate that may be, and without considering the com- the fact that admissions by act may often be as petency of such evidence had it been sought much within the mischief aimed at as admisto prove a contract of marriage by "habit and sions by spoken words. But, as the narrower repute," we are clearly of opinion that it was construction placed upon the statute has been inadmissible upon the sole issue then being adhered to and followed for nearly eighteen tried before the jury, to wit, whether Hulett years, during which the legislature has not executed the express written contract of mar-seen fit to amend the law, it is now too late for riage referred to. Any statements he might have made in these conveyances were certainly None of the exceptions to the charge are no part of the res gesta, to wit, the execution of the written contract of marriage. As respects that subject, it seems to us that such evidence would be merely the subsequent self serving statements of one of the parties. The fourteenth assignment is that the court rred in admitting in evidence Exhibit 133, us to reconsider the question. well taken or of sufficient substance to require discussion. In fact, the charge was, in most respects a model one. Instead of merely stating general abstract principles of law (as is often the case), which the average lay juror is usually incapable of correctly applying to the facts of the particular case, the learned judge gave the jury the benefit of a very full, clear, and impartial analysis of the evidence, taking up each important branch of it, and explaining to them its bearing upon the issue which they were to decide. This disposes of all the assignments of error relating to the trial of the issue before the jury. 3. When the other issues came on for trial, by stipulation of the parties all the evidence introduced upon the trial before the jury was deemed as introduced, subject to the same objections and exceptions, in the trial by the court. A small amount of additional evidence having been introduced, both appeals were submitted to the court for its decision. The court thereupon made separate findings of fact and conclusions of law in each appeal. The second finding of fact in each case was to the effect that the deceased and the petitioner were husband and wife, the only difference being that in the one appeal the finding was that they were such on the 7th of January, 1892 (the date of the execution of the marriage contract), and on the 25th of July, 1892 (the date of Hulett's death), while in the other appeal the finding was that they became husband and wife on the 7th of January, 1892; the difference in the two findings being, in our opinion, immaterial. The court held, as conclusions of law, in the one appeal, that the petitioner was entitled, as widow, to an order setting apart to her the homestead of the deceased, etc.; and, in the other, that the will of Hulett, executed in 1862, was revoked by his subsequent marriage to the petitioner. It is to this second finding of fact and to this last conclusion of law that the appellants take exception, and this presents the two principal questions raised by these appeals. The respondent had been for a long time prior to the execution of the marriage contract in the employment of Hulett as housekeeper at his farm at Stoney Point, some miles out of the city of Duluth. Her testimony is that immediately after the execution of this contract she moved into his room, and that from henceforth until his death they occupied the same sleeping apartment, and cohabited together as husband and wife. But she admits that it was agreed between them that their marriage was to be kept secret until they could move into Duluth, and go to housekeeping in a house which Hulett owned in that city. While a feeble effort was made to prove that their marital relation had become known to one or two persons, yet we consider the evidence conclusive that their marriage contract was kept secret, that they never publicly as sumed marital relations, or held themselves out to the public as husband and wife, but, on the contrary, so conducted themselves as to leave the public under the impression that their former relations of employer and housekeeper remained unchanged. Upon this state of facts the contention of the appellants is that there was no marriage, notwithstanding the execu tion by them of the written contract; that, in order to constitute a valid common-law marriage, the contract. although per verba de præsenti, must be followed by habit or reputation of marriage,-that is, as we understand counsel, by the public assumption of marital relations. We do not so understand the law. The law views marriage as being merely a civil contract, not differing from any other contract, except that it is not revocable or dissoluble at the will of the parties. The essence of the contract of marriage is the consent of the parties, as in the case of any other contract; and, whenever there is a present, perfect consent to be husband and wife, the contract of marriage is completed. The authorities are practically unanimous to this effect. Marriage is a civil contract jure gentium, to the validity of which the consent of parties able to contract is all that is required by natural or public law. If the contract is made per verba de præsenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of any civil regulations to the contrary. 2 Kent, Com. p. 87; 2 Greenl. Ev. 460; 1 Bishop, Mar. & Div. §§ 218, 227–229. The maxim of the civil law was Consensus, non concubitus, facit matrimonium. The whole law on the subject is that, to render competent parties husband and wife, they must and need only agree in the present tense to be such, no time being contemplated to elapse before the assumption of the status. If cohabitation follows, it adds nothing in law, although it may be evidence of marriage. It is mutual, present consent, lawfully expressed, which makes the marriage. 1 Bishop, Mar. Div. & Sep. SS 239, 313 315, 317. See also the leading case of Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. 54, which is the foundation of much of the law on the subject. An agreement to keep the marriage secret does not invalidate it, although the fact of secrecy might be evidence that no marriage ever took place. Dalyrmple v. Dalrymple, supra. The only two cases which we have found in which anything to the contrary was actually decided are Reg. V. Millis, 10 Clark & F. 534, and Jewell v. Jewell, 42 U. S. 1 How. 219, 11 L. ed. 108, the court in each case being equally divided. But these cases have never been recognized as the law, either in England or in this country. Counsel for appellants contend, however, that the law is otherwise in this state, citing State v. Worthingham, 23 Minn. 528, in which this court used the following language: "Consent, freely given, is the essence of the contract. A mutual agreement, therefore, between competent parties, per verba de præsenti, to take each other for husband and wife, deliberately made, and acted upon by living together professedly in that relation, is held by the great weight of American authority sufficient to constitute a valid marriage with all its legal incidents;" citing Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164. Similar expressions have been sometimes used by other courts, but upon examination it will be found that in none of them was it ever decided that, although the parties mutually agreed per verba de præsenti to take each other for husband and wife, it was neces sary, in order to constitute a valid marriage, that this agreement should have been subsequently acted upon by their living together professedly as husband and wife. In some cases where such expressions were used the court was merely stating a proved or admitted fact in that particular case, while in others the contract of marriage was sought to be proved by habit and repute, and the courts merely meant that the act of parties in holding them- Ication obtained. The chief reason why marselves out as husband and wife is evidence of a marriage. In State v. Worthingham, supra, which was a prosecution for bastardy, the defendant offered as proof of his marriage to the mother of the child that during all the time they lived and cohabited together the woman held herself out to her friends generally as his wife, and that both of them represented to the world that they had been married. The point really decided by the court, and evidently the only one it had in mind, was that this was competent evidence of a marriage, and that no formal solemnization or ceremony was necessary to give it validity. The statement in the opinion already quoted is probably subject to the criticism that it does not accurately dis criminate between the fact of marriage and the proof of it. The case of Hutchins v. Kimmell, supra, cited by this court, does contain such expressions as "followed by cohabitation," and "from that time lived together professedly in that relation;" but this language was evidently used simply as a recital of the actual facts in that particular case. There is nothing in the opinion indicating that the court intended to hold that a mutual, present consent to be husband and wife will not constitute a valid marriage unless followed by cohabitation of the parties, and a holding of themselves out as man and wife. Sharon v. Sharon, 75 Cal. 1, and Id. 79 Cal. 633, is not in point, for the reason that § 55 of the Civil Code of that state provides that "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 view of the increasing number of common-law widows laying claim (in many instances, doubtless fraudulently) to the estates of deceased men of wealth, it is a question for the legislature whether the common law should not be changed; but with that the courts have nothing to do. riage and the birth of issue was deemed such a change of condition on part of the testator as would work a revocation of his will was that otherwise his issue, which was the natural object of his bounty, would be wholly unprovided for, differing in that respect from the widow, for whom the law had made provision by means of dower. Hence it seems to have been the rule that marriage and the birth of issue would not produce the revocation of a will where provision was made by the will itself for the children of the future marriage. At common law a married woman could not inherit from her husband. In case of her husband dying intestate, she was not entitled to anything out of his estate except her dower. While by our statutes dower eo nomine has been abolished, yet the law makes provision for the widow, independently of the act of the husband, much more liberal than the common law did. She is entitled-First, to a life estate in the homestead of her deceased busband, free from any testamentary devise or other disposition to which she shall not have assented in writing, and free from all debts or claims against his estate; second, to an undivided third in fee simple, or such inferior tenure as the deceased husband was at any time during coverture seised or possessed thereof, of one undivided third of all other lands of which the deceased was at any time during coverture seised or possessed, free from any testamentary or other disposition thereof to which she shall not have assented in writing, but subject in its just proportion with other real estate to the payment of such debts of the deceased as are not paid from the personal estate. Of the personal estate of which her husband dies possessed the widow is entitled to all his wearing apparel, his household furniture, not exceeding in value $500; other personal property to be selected by her, not exceeding in value $500; a reasonable allowance for her maintenance during administration, which, in case the estate is insolvent, is not to be for more than one year. Gen. Stat. 1894, SS 4470, 4471, 4477. Such is the provision which the law makes for the widow. The statute then provides that, where the husband dies intestate, the residue of his estate, real and personal, shall descend and be distributed as follows: First, to his children, and to the lawful issue of any deceased child by right of representation; second, if there be no child, and no lawful issue of any deceased child, then to the surviving wife. It is mainly on this last provision by which the wife may inherit from her husband that counsel for the respondent base their contention that in this state marriage alone will revoke by implication of law the prior will of the husband. Their argument may all be summed up in the proposition that, inasmuch as a widow may now inherit from her husband (which she could not do at common law), therefore marriage alone effects the same change in the condition or circumstances of the husband as was effected under the common law by his marriage, and the birth of issue who could inherit. The courts of two or three western states have taken substantially this position. See Tyler v. Tyler, 19 Ill. 151; Morgan v. Ireland, 1 Idaho, 786; 4. This brings us to the last and most im portant question in the case, viz., Was the will of Hulett revoked by his marriage to the respondent? At common law the marriage of a woman absolutely revoked her will. The reason usually given was that, a married woman having no testamentary capacity, her will was no longer ambulatory. But the marriage of a man did not revoke his previous will in regard to either real or personal estate. This was not considered such a change of condition as would work a revocation by implication or inference of law. The reason usually given was that the law made for the wife a provision independently of the act of the husband by means of dower. But the marriage and the birth of issue conjointly revoked a man's will, whether of real or personal estate; these circumstances producing such a total change in the testator's condition as to lead to a presumption that he could not intend a disposition of property previously made to continue unchanged. The is sue, the birth of which would revoke a will, must have been such as could have inherited the property which was the subject of the will, so that the effect of throwing open the property to the disposition of the law would have been to let in the after-born child or children, r whose benefit alone the implied revo not usually justify courts in holding that these doctrines, when once thoroughly established, have been abrogated, any more than it would justify them in holding that a statute had been abrogated because the reason for its enactment had ceased. Any such rule would leave the body of the common law very much emasculated; as, for example, that pertaining to real estate. While, undoubtedly, the common law consists of a body of principles applicable to new instances as they arise, and not of inflexible cast-iron rules, yet where the rules of the common law have become unsuited to changed conditions, political, social, or economic, it is the province of the legislature, and not of the courts, to modify them. While we do not wish to be understood as intimating that no condition of legislation upon the subject of the rights of married women in the estates of their husbands would effect by implication a change of the common-law rule, yet our conclusion is that, in view of the main reason upon which the common-law rule was based that marriage alone would not, but that marriage and the birth of issue conjointly would, revoke the prior will of a man, and in view of the very liberal provision made by statute for the widow independently of the act of her husband the mere fact that she may now, under the statute, in certain contingencies, inherit more from her husband, is not sufficient to warrant us in holding that the common-law rule has been so changed that marriage alone is such a change of condition or circumstances as will work an implied revocation of the prior will of the husband. We should have stated that our statute relating to the revocation of wills is substantially, if not literally, the same as that of 29 Car. II., which has been so generally adopted by the American states. Gen. Stat. 1894, 4430. Brown v. Scherrer, 5 Colo. App. 255, approved | part ceased to exist. But this fact alone will and affirmed in 21 Colo. 481. In Tyler v. Tyler, supra, the question was not discussed at any great length, and the weight of that case as authority is somewhat impaired by the fact that in a subsequent case the court placed its refusal to reconsider the question mainly on the ground that the legislature had subsequently enacted that marriage alone, without the birth of issue, revoked a will, and hence that any decision which the court might make would be merely retroactive. The most able and forcible presentation of the arguments on that side of the question is to be found in the opinion of the Colorado court of appeals in Brown v. Scherrer, supra. But, after carefully considering all that has been said on that side, we are compelled to the conclusion that due weight has not been given to the fact that the main reason why, at common law, marriage and the birth of issue was deemed such a change in the condition or circumstances of the husband as would work an implied revocation of his prior will was that otherwise his is sue would be wholly unprovided for,-a thing which was not to be supposed to have been in the contemplation of the testator; whereas, under our statutes, and, we assume, without special examination, under the statutes of those states in which the decisions cited were rendered, even if the will stands, very liberal provision has been made for the widow independently of any act of the husband. There is a prevailing sentiment, often expressed by both courts and text-writers, that marriage alone should be deemed such a change in condition and circumstances as will revoke & prior will. A statute to that effect was passed in England in 1837 (1 Vict. chap. 26), followed by the enactment of statutes to the same effect in many of the states of the Union. How far this sentiment may have unconsciously influenced the decisions referred to it is impossible to say, The conclusion at which we have arrived on but no court has ever assumed to hold on this this question renders it unnecessary to consider ground alone, and in the absence of legislation other questions discussed by counsel; as, for affecting the question, that the common law rule example, as to the power of the probate court was abrogated, or so far modified, that mar- to set aside the probate of a will. In the ap riage alone would revoke a will. It is also sug-peal from the judgment setting aside to the petitigested that the common-law rule had its origin oner the homestead of the deceased, and giving in part in the ancient desire to build upon her an allowance out of his estate for her mainfamilies and family estates a consideration tenance during administration, the judgment is which has no place in this country. It is un-affirmed. doubtedly true that many of the doctrines of the common law had their origin in social or political conditions which have in whole or in In the other appeal the judgment setting aside the probate of the will and adjudging such will to be of no force or effect is reversed. NORTH CAROLINA SUPREME COURT. engaging in the milling business in the vicinity of a certain city after the completion of the agreement for the sale of their business, although it extends for their lives, is not illegal as in restraint of trade. 2. To take stock or help to organize or manage a corporation formed to carry on C.) 4 L. R. A. 154, and note; Herreshoff v. Boutineau (R. I.) 8 L. R. A. 469, and note; National Benefit Co. v. Union Hospital Co. (Minn.) 11 L. R. A. 437, and note; also Oakdale Mfg. Co. v. Garst (R. I.) 23 L. R. A. 639. a business after one has agreed, on the sale of 1 Being unlimited as to time is not objectionsuch a business, not to continue it in that local-able. It is for seller's and buyer's life. ity, is a breach of his contract. (October 20, 1896.) APPEAL by defendants tank County the Superior Court for Pasquotank County restraining them from violating their contract not to engage in the milling business in Elizabeth City. Modified and affirmed. The facts sufficiently appear in the opinion. Mr. W. J. Griffin, for appellants: Contracts in restraint of trade are void unless partial, that is, restricted either in time or territory; and when so restricted they are void unless made upon an actual valuable consideration. Holmes v. Martin, 10 Ga. 503; Chappel v. Brockway, 21 Wend. 157: Clark, Cont. 83. All contracts in restraint of trade are presumed to be void, and the burden of showing their validity is upon the party setting them up. Ross v. Sadgbeer, 21 Wend. 166. The fact that such contract is under seal does not import a consideration. Clark, Cont. 83. The sale of the goodwill of a business is not an undertaking to abstain from entering into that business. Diamond Match Co. v. Roeber, 106 N. Y. 484, 60 Am. Rep. 464; Whittaker v. Howe, 3 Beav. 383; McClurg's Appeal, 58 Pa. 51; Bininger v. Clark, 60 Barb. 113; Chappel v. Brock4; 21 Wend. 157; Lewis v. Langdon, 7 Sim, 422; Addison, Cont. 1154; Clark, Cont. 447, 449, 454. Avery, J., delivered the opinion of the court: The courts in later years have disregarded the old rules by which it was sometimes attempted arbitrarily to fix by measurement the geographical area over which a contract in partial restraint of trade might be made to extend, and to prescribe a limit of time beyond which it could not be made to operate. The modern doctrine is founded upon the basic principles that one who by his skill and industry builds up a business acquires a property at least in the goodwill of his patrons, which is the product of his own efforts (Cowan v. Fairbrother, 118 N. C. 406, 32 L. R. A. 829), and has the fundamental right to dispose of the fruits of his own labor, subject only to such restrictions as are imposed for the protection of society, either by express enactments of law or by public policy (Hughes v. Hodges, 102 N. C. 239; Bruce v. Strickland, 81 N. C. 267). But the property which one thus creates by skill or talent and industry is not marketable unless the owner is at liberty to sell his right of competition to the full extent of the field from which he derives his profit, and for a reasonable length of time. Cowan v. Fairbrother, West Virginia Transp. Co. v. Ohio River supra; 2 High, Inj. § 1174; Leather Cloth Co. Pipe Line Co. 22 W. Va. 600, 46 Am. Rep. 527. v. Lorsont, 39 L. J. Ch. N. S. 86; Rousillon If the contract is binding the Olds may law-v. Rousillon, L. R. 14 Ch. Div. 351; Clark, fully be employed by the defendant company. Baker v. Cordon, 86 N. C. 116, 41 Am. Rep. 448; 10 Am. & Eng. Enc. Law, p. 947, note. Contracts in restraint of trade partaking largely of bartering away a person's liberty should be strictly construed. The defendants only contracted to refrain from participating in the lumber business as individuals. Does it prohibit their taking stock in a milling company. 2 Addison, Cont. 742, *1154. Contracts in restraint of trade may be divided into two classes: those in which the parties to the contract are alone interested; those in which the public are interested directly as well. If the contract partakes of the latter nature it is absolutely void. Mr. E. F. Aydlett, for appellees: When the injunction relief is not merely auxiliary to the principal relief demanded in the action, but is the relief, the court will not dissolve the injunction upon a preliminary hearing. Love v. Davidson County Comrs. 70 N. C. 532; Marshall v. Stanly County Comrs. 89 N. C. 106. This contract is not in restraint of trade. Public policy requires that when a man has by skill or other means obtained something that he wants to sell he should be at liberty to sell it in the most advantageous way in the market, and in order to do this it is necessary that he should be able to preclude himself from entering into competition with the purchasers. Hughes v. Hodges, 102 N. C. 239; Cowan v. Fairbrother. 118 N. C. 406, 32 L. R. A. 829; Morse Twist Drill & Mach. Co. v. Morse, 103 Mass. 73, 4 Am. Rep. 513; Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464; High, Inj. 1174; Clark, Cont. 451. | Cont. p. 451. To the extent that the assignor of this species of property is left at liberty to come into competition with the assignee, the market value of what is sold must fall below that of the untrammeled right to freedom from competition in the whole field from which the former derived the support of his business. The test of the reasonableness of the territorial limit covered by such contracts is involved in the question whether the area described in the contract is greater than it is necessary to make it in order to protect the purchaser from competition in his efforts to hold and get the full benefit of the business or right of competition bought by him. The three defendants who sold to the plaintiff retained the undisputed right to continue in the same business and operate at any point beyond Elizabeth City and the vicinity, and exercised it by operating their mills. But in our case it was not contended that the area of territory covered by the restrictive agreement was so unreasonably great as to vitiate the contract, but that the time for which the defendants covenanted to refrain from entering into the same business imposed an unnecessary restriction upon the rights of the three defendants, and was, therefore, contrary to public policy, and void. It must be conceded that, in so far as it is consistent with the power to sell the property which is the creation of one's own labor, physical or mental, society has the right to claim an open field for every man's labor, skill, and competition with |