The Supreme Court of Nevada, in the very late case of Ex parte Rosenblatt (1887), also follows the Robbins Case. Here the petitioner was a traveling salesman or drummer, taking orders and selling goods for his principal, a California house. The act of Nevada made it a misdemeanor to exercise such occupation without having first obtained a license therefor. He was convicted in the lower court, and upon habeas corpus was discharged by the Supreme Court. After commenting upon the Robbins Case, the court observed: "The statute of

Tennessee and that of this State do not materially differ. Neither imposes a tax upon citizens of other States that does not equally apply to its own citizens, nor is there any discrimination in either statute against other States or their products. The principles of the decision of the Supreme Court in the Robbins Cuse must be accepted as establishing the unconstitutionality of the statute under which the petitioner was convicted." EUGENE MCQUILLIN.

St. Louis, Mo.

Supreme Court of Appeals of West Virginia.

BEVERLIN v. BEVERLIN.

Common-law marriages when contracted in this State are not recognized by our courts as valid.

No marriage contracted in this State is valid when it affirmatively appears that it has not been solemnized according to the requirements of our statutes on that subject, although the parties may thereafter have associated and cohabited together as husband and wife.

APPEAL and supersedeas from Circuit Court, Taylor County.
Bill for divorce. The opinion states the case.

John W. Mason and B. F. Martin, for appellant.
S. P. McCormick, for appellee.

SNYDER, J.-Suit in equity, instituted November 20, 1884, by Elizabeth Beverlin against Israel A. Beverlin, in the Circuit Court of Taylor county, for a divorce a mensa et thoro, and for alimony. In the original bill the plaintiff alleged that she was lawfully married to the defendant in the State of Pennsylvania, in June, 1861; that at that time she was a widow, and her name was Elizabeth Foster, and that from the date of said marriage until October, 1884, she and the defendant lived, associated, and cohabited with each other as husband and wife; that in October, 1884, the defendant, by his harsh, cruel, and inhuman treatment, compelled her to abandon home and children, and has since refused to permit her to return, etc.

In April, 1885, the defendant filed his answer to said bill, denying that he and the plaintiff had ever been married, and averred that in June, 1861, the plaintiff had a lawful husband, one Edward Foster, living in Belmont county, Ohio, and that at the time of the alleged marriage with defendant she had a suit pending for a divorce from said Foster in the Court of Common Pleas of said Belmont county, which was afterward dismissed at her costs; that said Foster continued to be the husband of the plaintiff until October 31, 1873, when he died.

In July, 1885, the plaintiff filed an amended bill in which she repeats that she had been married to the defendant at the time and place stated in her original bill, and, by way of amendment, she avers that in the fall of 1873 she learned that one Edward Foster had recently died in Belmont county, and she thereupon conferred with the defendant as to the possibility of said Foster being her former husband and the probable effect on their marriage, and the action, if any, they should take in relation thereto. The bill then avers that "finally, for prudential reasons, it was determined to take no public action; but that plaintiff and defendant would, and they did, mutually consent and agree to, and did, reaffirm their former marriage, and became and continued to be what, in truth and in fact, they had been theretofore, husband and wife; and that thereafter, and from that day henceforth, to and until the day of October, 1884,

at the town of Grafton, State of West Virginia, she was and continued to be the wife of defendant, living and cohabiting with him as such, performing all the duties of a devoted wife, and he, the defendant, so holding the plaintiff out to all persons as such, and representing to all persons with whom plaintiff and defendant were acquainted that plaintiff was his wife, as in fact she was."

The depositions fully prove that the plaintiff and defendant lived together, cohabitated, associated, and represented themselves as husband and wife for over twenty years, and that during that time they kept house together, and four children were born to them, two of whom are still living. It is also clearly proved that in June, 1861, at the time the plaintiff alleges she was married to the defendant, the plaintiff was a married

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woman and the wife of Edward Foster; that both she and the defendant knew this fact; and that she continued to be the wife of said Foster until his death, which occurred October 31, 1873. There is no testimony in regard to the alleged marriage set up in the amended bill as having taken place in 1873, after the death of the plaintiff's husband, Edward Foster, except the deposition of the plaintiff herself. In her first deposition, taken before the filing of her amended bill, the plaintiff testifies that she was married to the defendant June 9, 1861, in West Alexander, Pennsylvania, before a justice whose name she does not remember; that she had never been married to the defendant at any other time; that her former husband, Edward Foster, was then dead, and had died long before; that she had seven children by said Foster; and that he had died about thirtytwo years ago. In her deposition taken after the filing of her amended bill, the plaintiff testifies that in 1873 she visited the State of Ohio, where she had formerly resided, and on her return home to Grafton she informed the defendant that she had heard her former husband, Edward Foster, had died in Ohio a short time before, and that then she and the defendant "had a talk as to whether it was necessary that we should marry again. He said that it was legal, and that we need not marry again; that we will go on as we have been, doing the best we can for our children, as long as life shall last." And then, in an answer to the question, "Did you talk over and agree as to how you should be and live in the future?" she says: "We lived together just as we had been, as man and wife. I was to be his wife, and he my husband, as long as life should last." This is the whole of the evidence in support of the alleged marriage of 1873.

The testimony of the defendant was not taken, but he, in his answer to the amended bill, denies positively that he ever made any statement or agreement such as asserted by the plaintiff, or that he ever pretended or admitted to her that she was his wife or he her husband, as both of them well knew that such was not the fact.

The Circuit Court in its final decree, entered April 1, 1886, decided in favor of the plaintiff, awarding her a divorce a mensa et thoro from the defendant, and requiring him to pay to her

$250 annually for her support. From this decree the defendant has appealed.

The first question to be considered is whether or not any marriage ever took place or existed between the plaintiff and defendant. If there was no marriage, or none is shown by proofs, then, as a matter of course, the decree of the Circuit Court must be reversed and the plaintiff's bill dismissed. It is distinctly proved, both by the depositions and documentary evidence, that the plaintiff was on January 25, 1838, formally and legally married to Edward Foster, in Belmont county, in the State of Ohio; that she lived and cohabited with said Foster as her husband from that time until about the year 1859, and had issue-from seven to ten children-by that marriage; that she knew Foster was living at the time of her alleged marriage in June, 1861, with the defendant, and that said Foster continued to be her legal husband until his death, in October, 1873. It is consequently impossible that the alleged marriage of June 9, 1861, could have taken place, or been lawful in any respect. The question of marriage, therefore, depends entirely upon the allegations of the amended bill, and the testimony in support of them. Both the facts alleged and the proofs to sustain them have been before fully stated. It is insisted for the appellee these show a valid common-law marriage, and that such marriage, under the circumstances in this case, is valid and sufficient in this State.

There is much controversy as to what constitutes a valid common-law marriage. It always has been and still is a doubtful question in England: Reg. v. Millis, 10 Clark & F. 534; 1 Bish. Mar. & Div., §§ 270, 278. In the American States where such marriages have been recognized and held valid there is considerable diversity as to their requisites. In North Carolina, Tennessee, Massachusetts, Maine, and Maryland some ceremony or celebration seems to be necessary to a valid common-law marriage, and in most or all of these States it has been questioned whether or not the statutes have not superseded common-law marriages, and that a marriage, to be valid, must be in conformity with the statutes: State v. Samuel, 2 Dev. & B. 177; Grisham v. State, 2 Yerg. 589; Com. v. Munson, 127 Mass. 459; State v. Hodgskins, 19 Me. 155; Denison v. Denison, 35 Md. 361, 379.