
    HERBERT SHORO v. ANNA SHORO.
    
      Marriage. Divorce. Duress.
    
    A marriage may be annulled when it has been procured by duress; thus, a marriage was annulled on proof that the consent of the petitioner, a boy sixteen years old, was extorted by bastardy proceedings, maliciously instigated by the petitionee without probable cause.
    PetitxoN to annul' a marriage contract under section 2849 of tbe Revised Laws. Trial by court at September Term, Rut-land County Court, 1887, Rowell, J., presiding. Petition dismissed as a matter of law. Section 2349 R. L. is as follows : ‘ ‘ Tbe marriage contract may be annulled when * * * or when tbe consent of either party was obtained by force or fraud.” Tbe exceptions stated that “ tbe petitioner bad tbe alternative of going to jail or of marrying tbe petitioner.” Tbe other facts are sufficiently stated in tbe opinion.
    
      Ormsbee & Briggs, for the petitioner,
    cited Scbolu. Dom. Rel. p. 37; 1 Bisb. Mar. & Div. (4th ed.) s. 211; Clark v. Field, 13 Yt. 460; 11 Yt. 226; Scott v. Schufeld, 5 Paige, 43; jReynolds v. Reynolds, 3 Allen, 610.
   Tbe opinion of the court was delivered by

Ross, J.

This is a petition to have tbe marriage solemnized between tbe parties annulled, alleging among other things that the petitioner’s consent was obtained by force and fraud. It comes to this court on tbe facts found by tbe County Court, and tbe exceptions of the petitioner to tbe refusal of tbe County Court to annul tbe marriage.

We have given the matter somewhat careful attention, both because the marriage contract is one in which the public generally is interested, and because no attorney has appeared for the petitionee.

The controlling facts found by the County Court are that the petitioner, a lad sixteen years old, never had sexual intercourse with the petitionee before or after the performance of the marriage ceremony, and never cohabited nor lived with her. She was older, of bad repute for chastity, and without probable cause, maliciously caused him to be arrested upon bastardy proceedings. He was greatly frightened by the arrest, protested his innocence, but was told by the officer he must get bail or go to jail. He applied to his father to bail him and was refused. The father told him to marry her, or go to jail, and advised him to marry her and not live with her. When protesting his innocence to the officer, the officer assured him, that would, not save him. He took his father’s advice, went through- the marriage ceremony performed by the magistrate who signed the warrant for his arrest, while under arrest, in the presence of the officer, and while greatly frightened, with the fixed intention of never living with, her, which he has fully carried out. Can there be a doubt that the marriage ceremony was procured by duress ? What is duress ? Says Mr. Bishop, Vol. 1, Marriage and Divorce, s. 210: “ Where a consent in form is brought about by force, menace, or duress, — a yielding of the lips, but not of the mind — it is of no legal effect.” Bacon’s Abridgement under the title Duress: “If a man takes A. S. to wife by duress, though the marriage be solemnized in facie ecclesice, yet it is merely void, and they are not husband and wife, for without free consent there can be no marriage.” Again he says :“ It seems clearly agreed, that where a person is illegally restrained of his liberty by being confined in the common jail, or elsewhere, and dui’ing such restraint enters into a bond or other security, to the person who causes the restraint, he may avoid the same for duress or imprisonment.” Mr. Bishop in section 213 gives a case agreeing in its facts with the facts found by tbe County Court in the case at bar except the arrest was made without warrant, in which the marriage was annulled for duress. He intimates that if the arrest was on a legal process, it would be otherwise. No doubt that would be true if by ‘ ‘ legal process,” he means, one issued for legal cause. . But, as to the petitionee, the process on which she caused his arrest, was a pretence, a fiction; because procured maliciously, and without probable cause. If anything, it was worse than an arrest without process, but claiming to have one. Mr. Bishop, s. 212, says : “ A doubt may be entertained whether a process would not be void, if shown to be both malicious and without probable cause.” But illegal pretence, as it was, so far as regards the petitionee, it accomplished her wicked and unlawful purpose, frightened the boy, and caused him to- consent to the performance of the marriage ceremony in form only — a yielding of his lips but not of his mind. Sartwell v. Horton, 28 Vt. 370, and Hoyt v. Dewey, 50 Vt. 465, are full authority that money procured by a threatened arrest, on a charge which the maker knows to be false and without foundation in fact, may be recovered back. In Sartwell v. Horton, the case of Cadaval v. Collins, 4 Ad. & Ell. 858 is cited with approval. The case and decision is stated as follows : “ That was an action to recover money paid to the defendant after the plaintiff had been served with process. The fact ivas found by the jury that the defendant knew that he had no claim upon the plaintiff when he sued out his writ. Coleridge, J., observed-that ‘ ‘ no case has decided that when a fraudulent use has been made of legal process, both parties knowing throughout that the money claimed was not due, the party paying under such process is not to have the assistance of the law.” PattersoN, J., observed that “the jury concluded that the defendant knew that the debt did not exist, and that he used the process colorably. To say that money obtained by such extortion can not be recovered back would be monstrous.” Much more monstrous in our judgment, would it be to hold that a boy only sixteen years old whose verbal consent to a marriage ceremony had been extorted by the use of a process known to be without probable cause, and used maliciously, instigated and set on foot by an unchaste, pregnant woman of mature age, cannot be relieved from the life-long bondage of such a wife.

The judgment of the County Court is reversed, the pretended marriage annulled and vacated.  