matrimonially meant and continued, after the disability is removed, will, in law, make them husband and wife from the moment that such disability no longer exists: 1 Bishop on Marriage, Divorce, and Separation, secs. 970, 979. Or, as otherwise stated by this author: "To employ words more nicely accurate, and cover a larger ground, the living together of marriageable parties a single day as married, they meaning marriage, and the law requiring only mutual consent, makes them husband and wife": 1 Bishop on Marriage, Divorce, and Separation, sec. 975.

The facts in this case certainly bring the parties within the doctrine above announced. They attempted, in good faith, to enter into a legal marriage contract by procuring license, and solemnization of marriage in the usual way. After the disability of Mrs. Poole had been removed, they continued to live together as husband and wife, held each other out to the public as sustaining that relation; and although no subsequent marriage ceremony was performed, as 515 is usual to evidence contracts of this character, they having originally assumed the marriage relation in good faith, in pursuance of what they believed to be a valid contract of marriage, and having continued that relationship for a long period after it could have been legally assumed, raises the presumption that thereby they intended and meant marriage, mutually assented to a contract of that character.

The objection to the decree was, that it was not properly certified under the act of Congress, the certificate thereto being signed by a deputy clerk. Whether the attestation of the decree of a court of a sister state is sufficient when signed by a deputy clerk of the court only, it is not necessary to determine. The decree in question purported to find that the parties were, on the first day of April, 1882, capable of entering into a marriage contract, and that they were, on the said day, legally married. If not properly attested, the introduction of this decree might have been error on account of its possible influence on the jury in determining the issue of marriage; but the evidence of the plaintiff in error on this subject was, that Mrs. Poole and himself had lived together and recognized each other as husband and wife for a number of years after the impediment to their legal marriage was removed; and this admission, coupled with the uncontroverted fact that they had attempted, in good faith, to enter into the marriage relation before that time, conclusively established this relationship, and, therefore, the admission of the

copy of this decree was not prejudicial error. Regarding this decree, Mrs. Poole testifies that her husband told her he had compared the identical copy which was offered in evidence with the original, and informed her it was a true copy, and that, in discussing the matter further, they agreed to accept it as evidencing their true relation; so, for the purpose of showing the character of this agreement, it was proper for the jury to consider the copy admitted. This, apparently, was the view entertained by the trial court, in ruling upon its admissibility, and subsequently instructing the jury upon the subject.

516 The statute authorizes the acceptance of a bond in lieu of the penalty provided; true, it does not designate that the bond shall be executed in any penalty, or in express terms empower the court to fix the penalty thereof; the bond shall be conditioned for the support of the wife for a specific period, but there can be no objection if the order therefor names the penalty in which it shall be executed, or the sum to be paid at stated intervals for her support. In the absence of specific provisions regarding the terms and conditions of the bond, the court has authority to make such order in relation thereto, as will subserve the purposes for which it is to be given, viz., the support of the wife for the period of six months from and after conviction of the husband for nonsupport.

Plaintiff in error was arraigned and pleaded not guilty before the justice. On appeal, the cause came up for trial de novo on the issues made in the court below, and it was not necessary that he be rearraigned, or replead in the appellate court any more than it was necessary for the people to file another information. By arraignment before the justice, he was informed of the nature of the charge. Having there pleaded, the issues were made, and the effect of the appeal was to permit the plaintiff in error a new trial on such issues.

The statute upon which this prosecution is based does not change the law as to the civil liability of the husband to furnish his wife reasonable support; it provides a penalty in case he fails to do so, unless excused by physical incapacity or other good cause; he is not relieved from furnishing such support on account of the financial means of his wife, either by the general law, or the statute, and so the offer of plaintiff in error to prove that the prosecuting witness had means of her own, at a time several months prior to the institution of these proceedings, it not being claimed that such means were obtained from

the husband, was wholly immaterial. There is no reversible error, and the judgment is affirmed.

INFORMATION-CHARGING THE OFFENSE-NEGATIVING EXCEPTIONS.-The sufficiency of an information must be determined by the same rules that govern indictments: State v. Barnett, 3 Kan. 250; 87 Am. Dec. 471. An impossible or future date stated in an indictment is fatal. An indictment in which no day at all is stated as the date of the commission of the offense, will not support a judgment of conviction: State v. Ray, Rice's Law, 1; 33 Am. Dec. 90, 96. In criminal pleading nothing can be taken by intendment: State v. Turstin, 35 Me. 205; 58 Am. Dec. 695. An indictment is suffcient if it states the charge with sufficient certainty to inform the defendant what he is called upon to answer: Sherban v. Commonwealth, 8 Watts, 212; 34 Am. Dec. 460. An indictment under one section of a statute need not negative an exception contained in a subsequent section thereof: State v. Shiflett, 20 Mo. 415; 64 Am. Dec. 190. Compare note to State v. Johnson, 93 Am. Dec. 251.

INFORMATION-OBJECTIONS.-IT IS TOO LATE, after verdiet, to object to duplicity in an information for a misdemeanor. Such objections should be made at the proper time and by the method prescribed: State v. Armstrong, 106 Mo. 395; 27 Am. St. Rep. 361.

MARRIAGE VOID BECAUSE OF IMPEDIMENT-LIVING TOGETHER AFTER REMOVAL OF DISABILITY.-The essentials of a valid marriage are capacity and consent: Voorhees v. Voorhees, 46 N. J. Eq., 411; 19 Am. St. Rep. 404; and a mutual agreement between a man and woman to take each other, in good faith, for husband and wife, constitutes a valid marriage: Notes to Kilburn v. Kilburn, 23 Am. St. Rep. 451; Farley v. Farley, 33 Am. St. Rep. 144. A marriage contracted while a previous marriage of the husband remains unannulled, though he had previously obtained a void decree of divorce in another state, has no legal force whatever: Collins v. Voorhees, 47 N. J. Eq., 315; 24 Am. St. Rep. 412. But parties to a void marriage may continue living together as husband and wife, after the removal of the impediment to a valid marriage, and a jury may presume a valid marriage to have taken place after the removal of the previous impediment: Notes to Cartwright v. McGown, 2 Am. St. Rep. 117; Collins v. Voorhees, 24 Am. St. Rep. 415.

SMITH V. SMITH.

[24 COLORADO, 527.]

APPEAL.-UNDER THE DOCTRINE OF THE "LAW OF THE CASE," the conclusions announced by an appellate court upon the review of a case are, on a second appeal, res judicata as to the points decided, unless a new and different state of facts has been established on the new trial.

FRAUDULENT CONVEYANCES - HUSBAND'S POWER TO DISPOSE OF HIS PROPERTY-FRAUD UPON RIGHTS OF WIFE.-A husband has power to dispose absolutely of his property during his life, independently of the concurrence, and exonerated from the claim, of his wife, if the transaction is not merely colorable, and is not attended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband

is bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her.

FRAUDULENT CONVEYANCES - HUSBAND'S POWER TO DISPOSE OF HIS PROPERTY-FRAUD UPON RIGHTS OF WIFE.-If a husband makes a mere colorable disposition of his property, for the purpose of defeating the rights of his wife as his heir, and manifests an intention of reserving to himself the exclusive dominion and control of the property, and the reservation to himself of the right to use and enjoy it during his lifetime, the transaction is a fraud on the rights of the wife and will be set aside. FRAUDULENT CONVEYANCES - HUSBAND'S FRAUD UPON RIGHTS OF HIS WIFE.-If a married man conveys his property to his children, but retains control of the property and withholds the deeds from record for the period of four years after their execution, and his wife has no knowledge thereof until after the grantor's death, the fact that all the deeds were thus withheld leads very strongly to the conclusion that it was done as the result of an understanding between the grantor and grantees, and that the grantees were guilty of collusion in the matter for the purpose of preventing information of the transfer from reaching the wife of the grantor, and to permit him, in the mean time, to continue to exercise exclusive dominion and control over the property.

David Mitchell and N. M. Laws, for the appellant.

W. C. Kingsley, and Bartels & Blood, for the appellee.

528 GODDARD, J. This case, consolidated with two other like cases, was before us on a former appeal, Smith v. Smith, 22 Colo. 480, 55 Am. St. Rep. 142, and many of the questions now presented were then considered and determined. It will be seen by a reference to the statement of the case as there made that the object of the action is to compel the appellant to convey to appellee a certain interest in real estate alleged to have been conveyed to him by his father, the husband of appellee, in fraud of her rights. It also appears from the opinion then rendered that the complaint stated a cause of action, and, upon the evidence contained in the record, the appellee was entitled to the relief sought; but the judgment in her favor was reversed upon the sole ground that the district court erred in consolidating the cases, and thereby preventing the appellant and the other defendants from fully presenting their defenses. In so far as the specifications of error challenge the sufficiency of the complaint, or the right of appellee to introduce evidence in support of its averments, or the correctness of any other of our rulings upon the former review, they are not now open to consideration. Under the doctrine of the "law of the case,' the conclusions then announced 520 are controlling upon this review, unless a new and different state of facts has been established on the new trial. It only remains, therefore, for us to determine whether the facts developed upon the last trial

are so materially different from those disclosed in the former record as to take the case out of the rule laid down in our former opinion. We accepted as a correct statement of the law, the following from Kerr on Fraud and Mistake: "There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence, and exonerated from the claim, of his wife, provided the transaction is not merely colorable, and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her."

...

And the chief justice, speaking for the court, used this language: "The proof shows that these three several deeds were held from record for the period of four years after their execution. If one of these deeds had been withheld from record for that length of time, this would be a suspicious circumstance, while the fact that all were thus withheld leads very strongly to the conclusion that they were so withheld as a result of an understanding between the grantor and the three grantees, and that these grantees were guilty of collusion in the matter for the purpose of preventing information of the transfer from reaching the wife of the grantor, and to permit the grantor in the meantime to continue to exercise exclusive dominion and control over the property. . . . It is not necessary in this case, and it is not our intention to say anything that will prevent the husband, during his lifetime, from selling his personal property, or transferring his real estate for such consideration as he may be willing to accept, or without consideration, provided always that the transaction shall be absolute and bona fide, and not colorable merely, but what we do say is, where, as here, the complaint charges, and the evidence shows, that 30 the transaction complained of is colorable only and resorted to by the husband for the purpose of defeating his wife's right as his heir, he hoping thereby to obtain the full benefit of the property to the last hour of his life, and at the same time being able to deprive her of all interest therein as his heir, is as much of a fraud on the part of the husband as it is for a debtor, having in contemplation the incurring of an indebtedness, to put his property beyond his control.”

While the condition of the appellee is referred to elsewhere. in the opinion as emphasizing the inequitable nature of the transaction, the circumstances that vitiate the transfer are that