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§ 461. Proof of marriage. The proof of marriage, as of other issues, is either by direct evidence establishing the fact, or by evidence of collateral facts and circumstances from which its existence may be inferred. Evidence of the former kind, or what is equivalent to it, is required upon the trial of indictments for polygamy and adultery, and in actions for criminal conversation;1 (a) it being necessary, in such cases, to prove a marriage valid in all respects. It is not sufficient to prove that the parties went through a religious ceremony purporting to be a marriage, unless it is also shown that it was recognized by the law of the country as the form of contracting a valid marriage; 2 but in all other cases any other satisfactory evidence is sufficient. The affirmative sentence of a court having jurisdiction of the question of marriage or no marriage is conclusive evidence of the marriage.3 Other direct proof is made either by the testimony of a witness present at the celebration, or of either of the parties themselves, where they are competent; or by an examined or certified copy of the register of the marriage, where such registration is required by law, with proof of the identity of the parties. It is not neces

1 Morris v. Miller, 4 Burr. 2059; Leader v. Barry, 1 Esp. 353; Commonwealth v. Norcross, 9 Mass. 492; Commonwealth v. Littlejohn, 15 Mass. 163; People v. Humphrey, 7 Johns. 314. On the trial of an indictment for polygamy or adultery, the prisoner's deliberate declaration that he was married to the alleged wife is admissible as sufficient evidence of the marriage. Regina v. Upton, 1 C. & Kir. 165, n. Especially if the marriage was in another country. Regina v. Simmonsto, Id. 164; Regina v. Newton, 2 M. & Rob. 503; Cayford's Case, 7 Greenl. 57; Truman's Case, 1 East, P. C. 470. So in an action for criminal conversation. Rigg v. Curgenven, 2 Wils. 399, citing Morris v. Miller, 4 Burr. 2057; Forney v. Hallacher, 8 S. & R. 159; Alsleger v. Erb, 2 Am. Law J. N. s. 49. But see contra, People v. Miller, 7 Johns. 314; State v. Roswell, 6 Conn. 446 (b). In Massachusetts, in all cases where the fact of marriage is required or offered to be proved, evidence of general repute, or of cohabitation as married persons, and any circumstantial or presumptive evidence from which the fact may be inferred, shall be competent evidence for consideration. Stat. 1840, c. 84; Stat. 1841, c. 20; Knower v. Wesson, 13 Met. 143 (c).

2 Catherwood v. Caslon, 13 M. & W. 261; State v. Hodgskins, 1 Applet. 155. 8 Ante, vol. i. §§ 484, 493, 544, 545.

Ibid. See, as to proof by the parties themselves, Cowp. 593; Lomax v. Lomax, Cas. temp. Hardw. 380; Hubback, Evidence of Succession, pp. 241, 242, 244; Standen v. Standen, Peake's Cas. 32 (d).

complaint, which is their conjugal relation, and their duties in it; and therefore a decree of divorce there pronounced, in due course of law, must be regarded as valid to effect the dissolution of the bond of matrimony everywhere. Barber v. Root, 10 Mass. 260." See True v. Ranney, 21 N. H. 52; Harrison v. Harrison, 20 Ala. 629; Com. v. Hunt, 4 Cush. (Mass.)

50.

(a) Hutchins v. Kimmel, 31 Mich. 126. See ante, § 49.

(b) See also post, §§ 464, 579, note. (c) Pub. Stat. c. 145, § 31; Meyers v. Pope, 110 Mass. 314.

(d) Maxwell v. Chapman, 8 Barb. (N. Y.) 579. Identity of name is evidence of identity of persons, in proving a marriage by certificate. Hutchins v. Kimmel, 31 Mich. 126. The rule of law, Omnia

sary, in other cases, to prove any license, publication of banns, or compliance with any other statute formality, unless the statute expressly requires it as preliminary evidence.1

§ 462. Same subject. Marriage may also be proved, in civil cases, other than actions for seduction, by reputation, declarations, and conduct of the parties, and other circumstances usually accompanying that relation. The nature and admissibility of the evidence of reputation has already been considered in the preceding volume.2 (a) In regard to the language and conduct of the parties, it is competent to show their conversation and letters, addressing each other as man and wife;3 (b) their elopement as lovers, and subsequent return as married persons; their appear

1 Hubback, Evid. of Succession, p. 239.

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2 Ante, vol. i. §§ 103, 104, 106, 107, 131-134. It has been stated, in a work of distinguished merit (Hubback, Evid. of Succession, p. 244), that reputation of marriage, unlike that of other matters of pedigree, may proceed from persons who are not members of the family. But in the principal case cited to this point (Evans v. Morgan, 2 C. & Jer. 453), the chief reason for admitting the sufficiency of such evidence, after verdict, was, that the witness was not eross-examined, and that the defendant did not put the want of proof of the marriage to the judge as a ground of nonsuit, so that the plaintiff might have had an opportunity of supplying the defect by other evidence. See Johnson v. Lawson, 9 Moore, 187; s. c. 2 Bing. 88; Roe v. Gore, 9 Moore, 187, n. ; Donelly v. Donelly, 8 B. Monr. 113; Stevenson v. McReary, 12 S. & M. 9; Taylor v. Robinson, 16 Shepl. 323.

8 Alfray v. Alfray, Phillim. Eccl. 547.
4 Cooke v. Lloyd, Peake's Cas. App. lxxiv.

rite acta præsumuntur, applies with particular force to cases of presumption in favor of marriage and legitimacy. Harrison v. Southampton, 21 Eng. Law & Eq. 343; Ward v. Dulaney, 23 Miss. 410.

(a) Lyle v. Ellwood, L. R. 19 Eq. Ca. 106; Murray v. Milner, L. R. 12 Ch. Div. 845; Dunbarton v. Franklin, 19 N. H. 257; State v. Winkley, 14 Id. 480; Clayton v. Wardell, 4 Comst. (N. Y.) 230; Hicks v. Cochran, 4 Edw. Ch. (N. Y.) 107; Thorndell v. Morrison, 25 Penn. St. 326; Copes v. Pearce, 7 Gill (Md.), 247; Martin v. Martin, 22 Ala. 86; Harman v. Harman, 16 Ill. 85; Trimble v. Trimble, 2 Carter (Ind.), 76; Northfield v. Vershire, 33 Vt. 110. In Hoggan v. Craigie, 2 Macl. & Rob. 942, 965, Ld. Cottenham says: "It is not necessary to prove the contract itself [of marriage]. It is sufficient if the facts of the case are such as to lead to satisfactory evidence of such a contract having taken place. Upon this principle, the acknowledgment of the parties, their conduct toward each other, and the repute consequent upon it, may be sufficient to prove a marriage." See Goodman v. Goodman, 28 L. J. Ch. 745.

So,

66

Ld. Cranworth, in the Breadalbane Case, L.
R. 1 H. L. (Sc.) 182, p. 199:
By the law
of England, and I presume of all other
Christian countries, where a man and wo-
man have long lived together as man and
wife, and have been so treated by their
friends and neighbors, there is a prima
facie presumption that they are and have
been what they profess to be.'

(b) Gaines v. Relf, 12 How. (U. S.)
472. In Walmsley v. Robinson, 63 Ill. 41,
the instruction that the jury might find a
promise to marry, "first, from the conduct
of the parties; second, from the circum-
stances which usually attend an engage
ment to marry, as visiting, the understand-
ing of friends and relatives, preparations
for marriage, and the reception of the de-
fendant by the family of the plaintiff as a
suitor," was held to be too broad, and
to give the jury too much latitude.
by no means follows," say the court, "be-
cause a gentleman is the suitor of a lady,
and visits her frequently, that a marriage
engagement exists between them." If the
promise is conditional, it must be alleged
and proved, with its conditions. Hook v.
George, 108 Mass. 324.

"It

ing in respectable society, and being there received as man and wife; their observance of the customs and usages of society peculiar to the entry upon or subsistence of that relation; 2 the assumption by the woman of the name of the man, the weddingring, the apparel (where such difference exists) appropriate to married women, and any other conduct, sciente, vidente, et patiente viro, indicative of her marriage to him. (a) Their cohabitation, also, as man and wife, is presumed to be lawful until the contrary appears. (b) The like inference is drawn from the baptism, acknowledgment, and treatment of their children by them as legitimate; and from their joining as man and wife in the conveyance of her real estate, or her joining with him in a deed or other act releasing her right of dower in his estate; 5 and from the disposition of property to a party by a mode of assurance which is operative only where legal consanguinity exists; such as, a covenant to stand seised, and the like, or by the devolution upon and enjoyment by children of property to which, unless they were legitimate, they would not have been entitled. The recognition or proof of collateral relationship, also, is admissible as evidence of the lawful marriage of those through whom that relationship is derived.7

§ 463. Where contract is in writing. Where a contract in writing is by the law of the country, or of the religious community, made

1 Hubback, Evid, of Succession, p. 247.

2 Eaton v. Bright, 2 Phillim. Eccl. 85; Fownes v. Ettricke, Id. 257.

8 Hubback, Evid. of Succession, pp. 247, 248.

Doe v. Fleming, 4 Bing. 266; Hubback, Evid. of Succession, pp. 248–251, 262; Bond v. Bond, 2 Phillim. Eccl. 45; People v. Humphrey, 7 Johns. 314; Newburyport v. Boothbay, 9 Mass. 414.

5 Hervey v. Hervey, 2 W. Bl. 877; Hubback, Evid. of Succession, p. 248. Slaney v. Wade, 1 My. & C. 358; Hubback, Evid. of Succession, pp. 248, 254. 7 Eaton v. Bright, 2 Phillim. Eccl. 85 ; s. c. Id. 161. See ante, vol. i. § 194.

(a) Evidence that a woman occupies the same bed with defendant in his tenement, and was seen getting dinner and performing other household duties there, in his absence, is competent to prove her to be his wife. Commonwealth v. Hurley, 14 Gray (Mass.), 411.

(b) If the cohabitation is shown to have been illicit in its beginning, it seems that no presumption of marriage arises from its subsequent continuance, and that nothing short of proof of actual marriage, or such a total change in the character of the cohabitation as will amount to the

proof of marriage by habit and repute, as it is called in the English law, will be sufficient to prove the marriage. Cunningham v. Cunningham, 2 Dowl. 483; Lapsley v. Grierson, I H. L. C. 498. These cases, however, were criticised in the Breadalbane Peerage Case, L. R. 1 H. L. (Sc.) 182, but their principle was followed in Blackburn v. Crawford, 3 Wall. (U. S.) 176, Swayne, J., saying, "Under such circumstances the law makes no presumption." The question to be determined is one of fact, not of law. Cf. Clayton v. Wardwell, 4 N. Y. 230.

essential to the marriage, as is the case among the Jews, it should be produced as the proper evidence of the fact.1 And where written contracts are not requisite nor usual, yet if they have been in fact made, though by words de futuro, these, as well as marriage articles, and other antenuptial and dotal acts, are admissible in evidence, as tending to raise a presumption that the contemplated marriage took effect. A certificate of marriage, also, by the officiating clergyman or magistrate, though ordinarily not in itself evidence of the fact it recites, yet if proved to have been carefully kept in the custody of the party whom it affects, and produced from the proper custody, it may be read as collateral proof, in the nature of a declaration and assertion, by the party, of the facts stated in the paper.3 Such certificate, also, or a copy of the parish register or other document of the like character, may be read as evidence confirmatory of the proof by reputation and cohabitation. And where the marriage appeared to have been solemnized by one who publicly assumed the office of a priest, in a public chapel, and was followed by long cohabitation of the parties, this was held sufficient to warrant the presumption that he was really a priest, and that the marriage was therefore valid.5

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§ 464. Rebuttal. The evidence of marriage may be rebutted by proof that any circumstances, rendered indispensably necessary by law to a valid marriage, were wanting. (a) Thus, it may be shown that either of the parties had another husband or wife living at the time of the marriage in question; or, that the parties were related within the prohibited degrees; or, that consent was wanting, the marriage having been effected by force or fraud; or, that one of the parties was at the time an idiot, or non compos mentis,

1 Semb. Horn v. Noel, 1 Campb. 61. See, as to the Jewish contract, Lindo v. Belisario, 1 Hagg. Consist. 225, 247, App. 9; Goldsmid v. Bromer, Id. 324.

2 Hubback, Evid. of Succession, p. 257.

8 Hubback, Evid. of Succession, pp. 258, 259.
4 Doe v. Grazebrook, 4 Ad. & El. N. s. 406.
5 Rex v. Brampton, 10 East, 287.

(a) Gaines v. Relf, 12 How. (U. S.) 472; True v. Ranney, 1 Foster (N. H.), 52; Keyes v. Keyes, 2 Id. 553; Heffner v. Heffner, 23 Penn. St. 104; Martin v. Martin, 22 Ala. 86; Powell v. Powell, 27 Miss. 783; Robertson v. Cole, 12 Texas, 356; Bishop on Mar. & Div. §§ 63-123, and

6 Milford v. Worcester, 7 Mass. 48.

§§ 176-271. The admission of the husband, that, at the time of contracting his present marriage, he had a former wife living, is not competent evidence, even in a civil action, to prove the nullity of his seeond marriage. Gaines v. Relf, 12 How. (U. S.) 472. See also ante, § 461, n.

or insane.1 (a) And where marriage is inferred from cohabitation, the presumption may be destroyed by evidence of the subsequent and long-continued separation of the parties.2

1 2 Kent, Comm. pp. 76, 77; 1 Bl. Comm. 438; Gathings v. Williams, 5 Ired. 487. Where the marriage is invalidated on the ground of want of consent, the subject must have been investigated and the fact established, in a suit instituted for the purpose of annulling the marriage. 2 Kent, Comm. p. 77; Wightman v. Wightman, 4 Johns. Ch. 343. See also Middleborough v. Rochester, 12 Mass. 363; Turner v. Myers, 1 Hagg. Consist. 414.

2 Van Buskirk v. Claw, 18 Johns. 346.

(a) Weatherford v. Weatherford, 20 Ala. 548. But if a marriage was duly solemnized between parties capable of contract ing, it cannot be annulled, nor any of its consequences as to third persons be relieved against, although it was contracted and solemnized for the purpose of preventing such persons from receiving property which they would otherwise have been entitled to. McKinney v. Clark, 2 Swan (Tenn.), 321.

Marriage cannot be presumed between two persons on the ground of cohabitation, when this would oblige the presumption of bigamy on the part of either of them. Case v. Case, 17 Ĉal. 598. But in Brewer v. Bowen, it was held that cohabitation was proof of marriage, even though it had the effect to annul a subsequent marriage and bastardize the issue. 1 Abb. (N. Y.) App. Dec. 214. But see ante, vol. i. § 35.

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