EMERY, V. C.

Bill by George Ingle against Annie Ingle to annul their marriage. Dismissed.

W. Leslie Edwards and Mr. Richards, for complainant.

Harry V. Osborne, for defendant.

EMERY, V. C. The bill in this cause is filed to annul a marriage, on the ground of fraud and duress; and, after considering the evidence and the arguments of the counsel and the authorities bearing upon the questions involved, I reach the conclusion that the bill must be dismissed. The marriage ceremony was performed by a justice of the peace on January 2, 1897, while the complainant was in jail, under arrest upon a warrant issued by this justice of the peace upon the complaint of the defendant, charging complainant with seduction under promise of marriage, resulting in her pregnancy. Upon the marriage he was released from custody. Two grounds are relied on for annulling the formal marriage contract:

First. That the complainant was not lawfully under arrest. The claim of illegal arrest is based upon the contention that the complainant was not, in fact, guilty of the crime for which he was arrested. The statute (1 Gen. St. p. 1086, par. 204, "Crimes") provides that if any single man over the age of 18 years, under promise of marriage, shall have sexual intercourse with any single female of good repute for chastity, under the age of 21 years, and she shall thereby become pregnant, he shall be guilty of a misdemeanor, etc. Upon marriage with the female, the party offending is by the act released from custody. Sexual . intercourse was admitted by the bill, but pregnancy and the promise to marry were both denied. At the hearing, it was admitted that the evidence established the defendant's pregnancy at the time of the marriage. The complainant denies that there was any promise of marriage, and insists that, on the whole evidence now given in the case, the court must find that there was no crime committed under the statute, and that the arrest was therefore unlawful. Defendant, on the other hand, claims that a promise of marriage was made, under which the intercourse took place; and the evidence produced on her part, if true, justifies the claim that a promise of marriage was made, and that the crime had been in fact committed. Complainant now claims that the lawfulness or unlawfulness of the arrest is to depend upon this court's decision upon the question whether, upon the evidence now produced, the crime is or is not made out. But in cases of this character, to make the arrest unlawful, not only must it be established that the charge was a false one, but that the defendant who made the charge knew it to be false, and made the charge maliciously and without probable cause. The cases establish this rule. 2 Nelson, Div. & Sep. § 612, and cases cited. To base the lawfulness or unlawfulness of the arrest solely upon the sufficiency of the evidence of the crime to be produced in a subsequent suit to annul the marriage would practically place it in the power of the accused to change the forum for the trial of the accusation. In many cases, by loss of evidence for the state or other causes, this would enable the party arrested to defeat one object of the statute by a marriage under it, to escape the imprisonment or fine, with a chance of subsequently annulling the marriage, on proof that he was not guilty of the crime. The relief in cases like the present, so far as the present point is concerned, is in reality based on the fraud of the defendant in procuring an arrest upon a charge which she knew to be baseless. Not only is there no evidence in this case sufficient to establish fraud on the part of the defendant in making the charge, but the weight of evidence as now presented is that the crime was committed. The arrest therefore cannot be considered unlawful.

The second claim is that the complainant entered into the marriage contract under duress, the particular duress relied on beinga representation by the justice who issued the warrant that the punishment by imprisonment for the crime was 20 years' confinement, which would cover a long time of his life, and that this representation as to the time induced him to consent to the marriage, in order to escape this long imprisonment. The representation as to the length of the term is not claimed to have been made to the complainant directly by the justice, but by complainant's sister, who says she was so told by the justice, and was told by him to inform her brother then in jail. The justice denies this charge, and says he told her the term was five years, and read to her, from an abridgment of the statutes, the true term and the fine. Taking the sister's statement to be true, and that the justice misstated the term of imprisonment, the case as presented is not one where the marriage can be annulled in equity on the ground of duress, under our decisions. In Frost v. Frost (1886) 42 N. J. Eq. 55, 6 Atl. 282, Runyon, Ch., examined and applied the rule as established by the previous cases, and the same rule is applicable here. On the authority of these cases, it may be thus stated: "Where a man has been guilty of illicit intercourse with a woman, and marries her under the constraint of either civil or criminal proceedings based thereon, such constraint does not of itself constitute a valid ground for annulling the marriage." If this be the true rule, I fail to see how a misconception as to length of the term of imprisonment changes the character of the case as to the duress, or prevents the application of the rule. The rule is based on the theory that the marriage for the purpose of obtaining a release from imprisonment for a crime committed is not, in equity, to be considered a constraint, and this rule is applicable equally whether the imprisonment be for one term or another. On the authority of these cases, and in the absence of evidence justifying any conclusion of conspiracy or fraud, the bill must be dismissed.