Page images

particular fright occasioning the injury. In Gor- to him. It is clear from all the authorities that don v. Railroad, evidence that other horses were while a bailee cannot dispute the title of his emfrightened by the same or a like use of a locomo- ployer, he can show that since the bailment it has tive as that which caused the injury, was admit- been assigned to another. The allegiance of the ted; and in Rowell v. Railroad, supra, evidence that vassal was to defend the castle of his lord against locomotives scattered sparks and coals was decided outside foes, and not against itself. The present is to be competent and relevant on the question only the common case of the assignment of a fund whether the particular fire was set by sparks or or claim in the hands of the agent or attorney of coals from a locomotive. In State v. M. & L. Rail-the assignor. A question arising between the asroad, 52 N. H. 528, neglect of the engineer to give signor and assignee, each makiug a demand the warning whistle on approaching a highway upon the trustee or stakeholder, the defendant crossing was made evidence on the question of the could have saved himself from all risk, and from particular negligence, at a different time, alleged as costs, by sending the contestants into equity upon a the cause of the injury; and in Hall v. Broun, 58 N. suit of interpleader. Having espoused the side of H. 93, the usage of railroad agents and servants in the assignor he took the consequences attached. No managing cars standing on or near a crossing was sufficient defense has been established against the admitted to show the probable management of the claim of the assignee. Marvin v. Elwood, 11 Paige, same cars at the same place at the time in question. 365; Smith v. Hammand, 6 Sim. 10; 3 Pom. Eq. The evidence excepted to was not evidence of other Jur., $ 1327, and cases in note; 2 Story Eq. Jur., $ horses' being frightened at the sound of escaping 817; Exchange Bunk v. McLoon, 73 Me. 498." See steam, nor at the sight of the vapor produced by it. Nudd v. Montanye, 38 Wis. 511; S. C., 20 Am. Evidence of fright produced in horses by the Rep. 25. sight or sound, on sight and sound, of a locomotive and cars passing on a railroad, could In Vehue v. Mosher, 76 Me. 469, the plaintiff renot be evidence on the question of whether covered judgment for a farm mortgaged to another, or not the plaintiff's horse at another time was who assigned the mortgage to him. The mortgawas frightened at the sound of steam escaping from gor, during the sixty days before the conditional a locomotive stationary on the track. Nor could became a final judgment, sold manure, previously the defendants' negligence in managing a locomo- made upon the place in the usual course of hustive and cars moving on the railroad, at or near a bandry, to the defendant, who during that period crossing, be evidence of negligence or mismanage-entered the premises and carried the manure away. ment in respect to steam escaping from a locomotive Ileld, that the plaintiff can maintain an action of not moving. The facts shown by the excepted evi- trespass quare clausum fregit against the defendant dence were too unlike those alleged in the declara- therefor. The court said: “The defendant contion to be evidence of negligence in the particular tends that trespass quare clausum cannot be maincase."

tained against him for the act. The position is

that the action does not lie against the mortgagor, In Roberts v. Noyes, 76 Me. 590, it is held that and therefore not against one licensed by the mortalthough a bailee is not permitted to dispute the gagor to enter the premises. We think the action title of his bailor, he may show that the bailor lies against the defendant, and would lie against has assigned his title to another, since the property the mortgagor had he done the same act. There is was intrusted to him. If legally assigned, and the no intimation that the assignee of the mortgagee bailee has notice of the fact, the bailee must account was not entitled to an immediate possession, though to the assignee. The rule that a bailee should not he was for a time postponed in getting possession attorn to a stranger does not apply; the assignee is by legal process. The action (quure clausum fregit) not a stranger. The court said: “The defendant lies by mortgagee against mortgagor for strip and invokes the rule of law, that an agent in possession waste. The mortgagor is not liable in the action of his principal's property is not permitted to dis- for using the premises, the possession of which is pute the principal's title thereto; that he cannot be not taken by the mortgagee, but may be sued in converted into a trustee for a third person by a quare

clausum for abusing them in certain ways. A mere notice of his claim; that he cannot affect the mortgagor in possession, before entry by the mortprincipal's rights by an attornment to a stranger; gagee, may lawfully cut and remove grass growing and that an action of money had and received can upon the land. Hewes v. Bickford, 49 Me. 71. He not lie in such case by a third party. All of which may take the rents and profits. IIe may cut fireis true but misapplied. The plaintiff does not set wood for use upon the premises. Hapgond v. Blood, up an independent and hostile claim as a stranger 11 Gray, 400. He cannot cut and remove trees fit or third party. He claims under Mrs. Rounds, and for timber in the market. Puge v. Robinson, 10 not adversely to her original right. He claims that Cush. 99. IIe cannot remove a building. Cole v. her right has become his; that thereby her trustee Stercart, 11 id. 181. Nor remove fixtures from a has become his trustee; and that the privity be- building. Smith v. Goodwin, 2 Me. 173. He is liatween her and her agent has been transferred to ble in quare clausum for any act causing substantial him. The plaintiff could not dispute Mrs. Rounds' and permanent injury. Removing the manure in original title, but he can show that it was assigned this case was of the same kind of injury and waste

as removing trees or buildings or house-fixtures.

called the 'ass '—the jackass being the male of this Manure, situated as this was, is itself a fixture." species. But it is urged that this construction will See Chase v. Wingate, 68 Me. 204 ; S. C., 28 Am. not do unless it appears that the animal is used as a Rep. 36.

horse; that is, used for riding, ploughing, and

other such useful and necessary purposes for COMMON WORDS AND PIIRASES. the benefit of the family. That if he is used merely

for breeding purposes he is not within the spirit of EMOLUMENTS. -In Apple v. County of Crawc- the law, and is not exempt. We cannot so inter

ford, Pennsylvania Supreme Court, February, pret our statute. It is not required by the terms of 1884, it was held that the compensation allowed to the statute, as it is in Alabama, for instance, that the sheriff for boarding prisoners is one of the the horse exempt must be a work horse. Allman v. “emoluments” of his oflice, which may not be in Gunn, 29 Ala. 240. Nor are the horses exempt uncreased or diminished during his term. The court cler our statute exempted for specific uses, as in the said: “The boarding of the prisoners was certainly California statute. Robert v. Adams, 38 Cal. 383. one of his official duties imposed upon him by law. Our exemption is general, unrestricted and unconFor the performance of this duty he was entitled to ditional and unlimited as to the value of the anireceive a compensation, which was definitely fixed mals. It extends to all classes of of our citizens. It by law at the time of his election. While this com

includes the valuable trotter or racer worth thoupensation could hardly be called a salary, it seems to sands of dollars, as well the comparatively valueless us that it is included within the larger and broader Mexican pony; the magnificent span of horses term “emolument.' In Webster's Unabridgeil Dic-driven by the wealthy man as well as the brokentionary the word “emolument' is thus defined: down hacks of the poor laborer. Such is the law of * The profit arising from office or employment; this State. Whether it be just, equal and wise, or that which is received as a compensation for ser unfair and inequitable, is not for us to determine. vices, or which is annexed to the possession of of It is very true that under the construction of the law fice, as salary, fees and perquisites; advantage; a debtor may invest a large sum of money in two valgain, public or private.' We think the word imports uable stallions or jackasses, and in this way

defraud more than the word 'salary or fees,' and because his creditors. lIe may do the same thing, on a it is contained in the Constitution in addition to inuch larger scale, with his homestead. He may the word salary, we ought to give it the meaning invest an unlimited amount in a homestead, and which it bears in ordinary acceptation. By the defi from a hundred thousand dollar palace bid denition above given it imports any perquisite, advan fiance to his hard-working, poverty-stricken credtage, profit or gain arising from the possession of itors. So it is no argument against our construcoffice.”

tion of the law to say that it is not right because it HORSE.—A jackass is a “horse" within a statute

will allow a debtor to invest all his means in a of exemption. Robinson v. Robertson, Texas Su-couple of fine-blooded jackasses and live in luxury, preme Court, June, 1884. The court said: “This not from the proceeds of their services as agriculrule of liberal construction of exemption laws has tural animals, but from their services as foal-getters, prevailed in our State from the carliest decisions while his creditors are perhaps suffering for the pitdown to the present time. Thus in Colbe v. Cole tance which he honestly owes them.” man, 14 Tex. 594, under the exemption of a “borse,' ROADWAY, ROADBED.—Steamers used by a railit was held that a bridle, sadille, stake-rope and road company in transporting freight cars across martingales were exempt. In Roulgers v. Ferguson, water intervening between the termini of the tracks, 32 Tex. 533, it was held that the word 'wagon' in are not taxable as part of the “roadway" or "rɔadthe exemption statute included all four-wheeled ve bed.” City and County of San Francisco v. Central hicles for whatever use employed. In Anderson v. Pac. R. Co., 63 Cal. 467. The court said: “It is Mckay, 30 Tex. 186, it was held that lumber which equally as clear that they are not rails or rolling was destined for the erection of a house upon land stock. These words are to be construed according claimed as a homestead might, under certain cir to their ordinary and popular meaning, and we do cumstances, be regarded as a part of the homesteail, not think that it would be contended that rails or and therefore exempt. In Allison v. Brookshire, 38 rolling stock in their ordinary and popular signifi. Tex. 199, it was held that a 'mule' was included cation include the steamers above mentioned. Are in the exemption of a “horse.' In llexander v.IIolt, they then embraced within the words roadway or 59 Tex. 205, growing crops upon a homestead are roadbed in the ordinary and popular acceptation of held to be exempt is a part of the homesteail. such words as applied to railroads? These two

In Tennessee, Richardson v. Duncan, 2 words, as applied to common roads, ordinarily mean Heisk. 220, it has been held that a jackass is a horse the same thing, but as applied to railroads their within the meaning of the exemption statute of that meaning is not the same. The roadbed referred to State; which statute as to the question here in- in section 10, in our judgment, is the bed or foundvolved is similar to our own.

We are of ation on which the superstructure of the railroad the opinion that a fair and liberal construction of rests. Such is the definition given by both Worcesour exemption statute includes within the meaning ter and Webster, and we think it correct. The of the word “horse' the animal of the same genus roadway has a more extended signification as ap


[ocr errors]

plied to railroads. In addition to the part denomi- themselves.' This exposition of reasonable doubt nated roadbed the roadway includes whatever space is strenuously objected to by the counsel for reof ground the company is allowed by law in which spondent. This definition is substantially in the to construct its roadbed and lay its track.”

words of Lord Tenterden in a capital case long ago GUNPOWDER.–Fireworks are not “gunpowder. ” and has been frequently used by judges since. See Tischler v. California Farmers' Mut. Ins. Co., Cali- 3 Greenl. Ev. (13th ed.), § 29 n. Of this definition fornia Supreme Court, November, 1884. The court Mr. Bishop, in section of Criminal Procedure before said: “It remains to be considered whether the fire- cited, says: “If there were no doubt of its accuracy, works kept by the plaintiff rendered void the policy it might in some circumstances, to some minds, be under that provision of it prohibing the keeping or helpful; yet on the whole it is less clear than the use on the premises of 'gunpowder.' Defendant phrase it would explain.' But its correctness is deintroduced no testimony tending to show of what nied by five or six of the State courts. Still it has the fireworks were composed. They may be com- been approved by as many other courts.

See cases posed of various combustible materials-usually, we cited by Mr. Bishop. See also IIowser v. State, 5 believe, of preparations of gunpowder, sulphur, and Ga. 78. Standing alone, the phrase seems to be some other inflammable material or materials. But rather an inadequate and unsatisfactory definition. although gunpowder may be, and usually is, one of The trouble with it is that with all men their own af the constituents of fireworks, it by no means follows fairs do not necessarily receive the same consideration that'fireworks ’are 'gunpowder.' The latter is 'a which they should bestow as jurymen upon the in mixture of saltpetre, sulphur and charcoal, sepa- terests of others. But in the case at bar other defirately pulverized, then granulated and dried.' It nition of reasonable doubt was added. The further was the mixture called gunpowder which, along instruction was that a reasonable doubt is a doubt with phosphorus, camphene, gas and chemical oils, arising in the mind for which some fair, just reason the plaintiff was, by the policy in question, prohib- can be given.' This the jury could very well underited from keeping or using on his premises without stand. The other phrase is too much objected to by the written consent of defendant, under penalty many respectable courts to commend its adoption of rendering the policy void."

into judicial use. The rule of reasonable doubt was REASONABLE DOUBT.— In State v. Rounds, 76 Me. itself settled upon to rid the law of a great variety 123, it is said: “Mr. Bishop (1 Crim. Proc., § 1094) of loose and confused definitions and phrases which says: “There are no words plainer than reasonable had been from time to time adopted by different doubt, and none so exact to the idea meant. judges to express the judicial idea.” Hence some judges, it would seem, wisely decline Plying.-A vessel never in the State except ocattempting to interpret them to the jury. Negative casionally to receive or discharge cargo, is not "plydescriptions may be safe, and perhaps helpful; as ing in waters of the State.” City and County of that it is not a whimsical or vague doubt or con San Francisco v. Talbot, 63 Cal. 485. The court said: jecture, not an impossibility, * * but it is a "'Plying,' when used in the connection that it is reasonable doubt. It is not an unreasonable doubt. here, is a nautical phrase, which is defined by WebThe very term implies that there may be doubts not ster as follows: "To make regular trips; as a vessel reasonable or rational. It cannot be a merely pos-plies between the two places.' It might well be sible doubt, for any thing relating to human affairs urged that a vessel making regular trips between may be in some way subject to possible doubt. It any port in California and some port outside of Caliis such an actual and substantial and well-founded fornia, was 'plying in part in the waters of this doubt as would be entertained by a reasonable and State.' But can that be properly said of a vessel conscientious man—such a doubt that the reason for which sails out of a port outside of this State 'to it can be examined and discussed.' In Stute v. various ports and countries in the regular course of Reed, 62 Me. 129, the following was decided to be a commerce, transporting lumber and other freight,' correct definition: “It is a doubt which a reasona and touching at the port of San Francisco tranble man of sound judgment, without bias, preju- siently in the course of her voyages, and only long dice or interest, after calmly, conscientiously and enough to take in and discharge cargo?'Plying deliberately weighing all the testimony, would en- implies regularity, and is not the term used to extertaip as to the guilt of the prisoner.' It is not press the character of the irregular and transient enough to establishmerely a probability of guilt. visitations of a ship to a port in the course of her The rule requires that the guilt shall be estab- voyage to various ports. In that case

a vessel is lished to a reasonable, but not an absolute, demon- said to touch at cach of the ports which she visits. strative or mathematical certainty.

A vessel plics between two places—she may touch In the presents case the learned judge who presiiled at many." at the trial went still further toward the outer circle Milk.—This includes skimmed milk. Lane v. Colof judicial limits, and said to the jury that the law lins, Q. B. Div., December 16, 1884. The London only requires that degree of certainty in the minds Lai Journal says: "411 language has a tendency to of jurors before rendering a verdict of guilty, as deteriorate, but that is no reason why respectable would exist in their minds in coming to a conclu- words like “milk' should have a push down hill sion on matters of grave interest and importance to given them by persons in authority. This is what

[ocr errors]


has happened in the case of Lane v. Collins, noted years of the commission of the offense there were no in this week's Notes of Cases. The Adulteration houses near this spot, and when Brighton was a Act, 1875, requires under penalties that articles of fishing village whole regiments of soldiers used to food soli shall be of “the nature, substance and bathe there at the same time; that at the time the quality' of the article demanded, and Mr. Justice offense was committed there was a row of houses Day and Mr. Justice Mathew decide that when erected on the cliff, from the windows of which the

milk’is asked for the statute is sufficiently complied defendant might be distinctly seen as he undressed; with if skiinmed milk is supplied—that is to say, and when Brighton grew up, that which was before milk sixty per cent deficient in butter-fat. Skimmed a place where bathing could take place without any milk, they lay down, is the milk of commerce, but observation became a place where it could not so the question is whether it is the milk of language. take place, and the lord chief baron says: 'Nor 18 We venture to maintain that 'milk' means the milk it any justification that bathing at this spot might a of the cow, and that those who want cow's milk do few years ago be innocent. For any thing that I not use a negative and ask for "unskimmed milk.' know a man might a few years ago have harmlessly The impetus now given to the decline of language danced naked in the fields beyond Montague House, in the interests of commerce may carry us far. If but it will scarcely be said by the learned counsel for we ask for 'coal,' we are not entitled to coal as it the defendant that any one might now do so with imcomes from the pit, but must be satisfied with dregs punity in Russell square. Whatever place becomes the from which, in the words of the play, all “the knob- habitation of cıvılızed men, there the laws of decency bly ones' have been picked out. If we ask for must be enforced.' That appears to be exceedingly strawberries, we must put up with a basket of leav- good sense, and to be a guiding statement of the ings with a few big fruit at the top. If we ask for law which may fully guide us in this case.

Here is wine we must, on the authority of those learned a place which persons, though they may be legal judges, be content to drink-horrescimus—the claret trespassers, do go upon, and no one interferes with of commerce."

them. In a place therefore where the public go MANUAL LABOR.-In Morgan v. London General without interference, a man takes seven or eight litOinnibus Co., Ct. App., 13 Q. B. Div. 832, it was tle girls and exposes himself to them. I am of opinheld that an omnibus concluctor is not engaged in ion that the prisoner exposed himself indecently in “manual labor." Brett, M. R., said: “Ile does a public place.” not lift the passengers into or out of the omnibus; it is true that he may help to change the horses, but

PRESUMPTION OF MARRIAGE. his real and substantial business is to invite persons to enter the omnibus, and to take and keep for his employers the money paid by the passengers as their I

N many cases, in which the question of the exist.

ence of thə marital relation between two parties fares; in fact he earns the wages becoming due to him through the confidence reposcd in his hon-evidence of an actual marriage. It then becomes im.

is presented, it is found impossible to adduce direct esty."

portant to determine what other evidence is compePUBLIC PLACE.—In Reg. v. Wellard, C. C. Res., tent upon the point, and what facts and circumstan51 L. T. Rep. (V. S.) 604, it was held that a convic ces will suffice to create a presumption of marriage. tion of indecent exposure of the person in a public What facts will justify a court or jury in inferring as a

matter of fact that a valid marriage contract bas aotplace was valid, although the place was one to which

ually been made between two persons is a question the public had no legal right of access. Coleridge, that appoars to be involved in a considerable obscurity C. J., observed: “There is a clifficulty to my mind and uncertainty, owing to the diversified circumstancertainly in giving an affirmative definition as to ces under which that question has been presented in what is a public place, but I am by no means certain

different cases, and also to the different phases of litithat the publicity of the spot where the offense gation in which it has been before the courts. The

same rules do not obtain in all legal proceedings in takes place has any thing to do with it. This how

which the fact of a marriage becomes material. Iu ever is clear, that what is a public place will vary some proceedings, as in criminal prosecutions for from time to time; that is to say, that a place may bigamy or in civil suits for criminal conversation be a public place at one time for the purpose of

striot proof is required. The marriage can be eslabhaving an offense committed in it, and may not be

lished by only direct evidence. In other proceedings

greater latitude is allowed the party ou whom it is in a public place at another time for that purpose. cumbent to prove a marriage, in both the quality and The question is whether at the time the offense is the quantity of the evidence he must produce to sus. committed the place is a public place in the natural tain the burden of proof resting upon him. The want and ordinary sense of the term. In Rer v. Crun- of harmony between the adjudications on this branch

of jurisprudence is however more apparent than real. den, 2 Camp. 89, McDonald, C. B., points out in a

A careful review and analysis of the reported cases on short, and if I may say so, good judgment, the oh- the subject will eliminate from them much of this vious sense of what I have been endeavoring to give seeming conflict. as my opinion. There it appeared that on a Sunday With the exception of prosecutions for bigamy, afternoon the defendant had bathed opposite the adultery and incest, and suits for criminal conversaEast Ciiff at Brighton, undressing and dressing him will be hereafter more particularly referred to, the au

tion, and possibly one or two other proceedings whick self upon the beach; that till within a very few thorities all agree that cohabitation and reputation are


sufficient facts on which to warrant a finding of mar short of evidence of an actual marriage in any of the riage. 1 Bish. on Mar. and Div., SS 434, 435, 436, 437, following cases : 442, 443, aud cases cited; Betsinger v. Chapman, 88 N. Iu prosecutions for bigamy or polygamy People v. Y. 499.

Humphrey, ñ Johns. 314; Clayton v. W'ardell, 4 N. Y. On priuciple it would seem to be the correct doc 230; S. C., 5 Barb. 214; Cuse v. Case, 17 ('al. 598; Trika trine, that such evidence of marriage is competent in man's case, 1 East P. C. 470; for adultery, Wedgwood's only those proceedings in which from the nature of case, 8 Greenl. 175; Commonwcalth v. Norcross, 9 Mass. the case it is impossible to produce direct and positivo 492; State v. Hodgskins, 19 Me. 155; for incest, State v. proof. This consideration appears to have governed Roswell, 6 Conn. 146; State v. Roswell, 6 id. 446; and the court in Collins v. Collins, 80 N. Y.1. The ques for loose and lascivious cohabitation, Commonwealth tion of the existence of a marriage arose on an appli v. Littlejohn, 15 Mass. 163; see Hopper v. Slate, 19 Ark. cation for alimony in au action for divorce. It ap 113. So in a civil action for criminal conversatiou, peared that at the time plaintiff and defendant were Norris v. Hiller, 4 Burr. 2057; S. C., 1 W. Bl. 632; Birt married, plaintiff had a husband living. There was V. Burlow, 1 Doug. 171; Ilemmings v. Smith, 4 id. no evidence of an actual marriage with defendant 33; Cutherwood v. Caslon, 13 M. & W. 261; Dann v. after the death of the former husband. The court re Kingdom, 1 Thomp. & Cook, 492. Whether in an acfused to grant the application for alimony on the tion for divorce on the ground of adultery the marground that the marriage had not been established, riage can be established by cohabitation and repute saying at page 10: “The onus however is upon the seems to be involved in some uncertainty. But the plaintiff to establish with at least a reasonable degree decided preponderance of authority is in favor of the of certainty that she is the wife of the defendant, and sufficiency of such evidence. Purcell v. Purcell, 4 it would seem that sbe should produce the best evi Hen. & Munf. 507, 512; Jlorris v. Morris, 20 Ala. 168 ; dence in her power. She is a competent witness to Wright v. Wright, 6 Tox. 3; Trimble v. Trimble, 2 Ind. prove the fact of marriage, and if any new mar 76; Ilaman v. Ilarman, 16 Ill. 85; Ilitchcoc v. Hitchriage contract was entered into between her cox, 2 W. Va. 435; Burns v. Burns, 13 Fla. 369, and the defendant, after the death of her first 380. husband, she should have alleged it.” The doc In Collins v. Collins, 80 N. Y. 1, the New York Court trine of this case should have universal application in of Appeals appeared to favor the doctrine of strict all proceedings in which it is possible to prove the mar proof. The court refused to apply the rule of proof by riage by the testimony of one or both of the alleged cohabitation and repute. The evidence showed that married parties. But this is far from being true. In the parties alleged to be husband and wife had lived numerous cases it has been held that marriage may be together as such from the death of the wife's former shown by cohabitation and repute during the life of husband in 1836 down to 1868. But the court decided the very persons whose marital relations are in dis

that the marriage was not sufficiently proven to enpute, or during the life of one of ihem. It may be title the wife to alimony, although it expressly recogproved in this manner in an action brought by hus nized the principle that that fact would have been band and wife jointly. Crozier v. (ano, 1 Bibb, 257; sufficient to establish a marriage in any other civil Hammick v. Bronson, 5 Day, 290; Boulman v. Curry, proceeding, excepting of course an action for criminal 25 Mo. 133. So in actions against husband and wife, conversation. The court seems to have based its dePettingill v. d[cGregor, 12 N. H. 179; Jenkins v. Bis

cision on the very satisfactory ground that the wife bee, 1 Edw. ('h. 377; Newburyport v. Boothbuy, 9 Mass.

must prove the marriage by the best evidence within 414. So where a woman seeks as widow to recover

her power; in other words that she must swear to it dower, or as widow claims to inherit her alleged hus herself. This principle ought to be conclusive on the band's property. Young v. Foster, 14 N. II. 114; Sell- point without assigning further reasons for the dooman v. Bowen, 8 Gill. & J. 50; Chambers v. Dickson, ? trine. But singular as it may appear, the courts in all S. & R. 475; Pearson v. lIowry, 6 Halst. 12; Stevens v. the cases above cited bave invariably ignored this Reed, 37 N. H. 49; Fleming v. Fleming, Blackf. 231;

fatal objection to the doctrine they promulgate. The Strover v. Boswell, 3 Dana, 232; Graham v. Law, 6 U. parties themselves being competent witnesses to prove C. C. P. 456. So where one sought to recover as heir

the marriage, cohabitation and repute are subject to of his brother during the life of the father. Fleming v. tho unanswerable objection that they are not the best Fleming, 4 Bing. 266.

evidence of which the case in its nature is susceptible. Where a presumption of marriage has once arisen The leaning of the court in Collins v. Collins toward from a cohabitation, apparently matrimonial, it can the rule requiring direct evidence of inarriage is shown be overthrown by only the most cogent proof. IIymes by the following language; “Although as a genV. McDermott, 91 N. Y. 151, 159; Jorris v. Davies, 5 ('l.

eral rule for ordinary purposes, actual marriago may & Fin. 163; Piers v. Piers, 2 II. L. ('as. 331.

be presumed from matrimonial cohabitation and the In Morris v. Davies, Lord Lyndhurst said, in speak- | acknowledgments of the parties that they are husband ing of this presumption: “The presumption of law is and wife, there are cases in which direct evidence of not lightly to be repelled. It is not to be broken in

marriage is required. The cases generally mentioned upon or sbaken by a mere balance of probability. The

as calling for such direct proof, as contradistinguished evidence for the purpose of repelling it must be strong, from mero proof of matrimonial cohabitation, recogdistinct, satisfactory and conclusive."

nition and general reputation,are prosecutions for bigIn Hynes v. McDermott, the ('ourt of Appeals de

amy and actions for crim. con. But many others are clared: “The presumption of marriage from a cohabi mentioned in the authorities, and some of them lay tation apparently matrimonial, is one of the strongest down the proposition generally that direct evidence presumptious known to the law. This is especially is required in all criminal or quasi criminal prosecutrue iu a case involving legitimacy. The law pre tions, or actions founded on the relation of marriage; sumes morality and not immorality, marriage and not and in others it is said that when the violation of the concubinage, legitimacy and not bastardy. Where relation of husband and wife coustitutes the guilt of there is enough to create a foundation for the pre the accused, such relation must be proved by direct somption of marriage it can be repelled only by the

evidence. * * The question is to important to most cogent and satisfactory evidence.”

render it proper to determine it finally on a mere moMarriage cannot be established by mere proof of tion for alimony. The onus however is upon the plaintcobabitation and repute, or in fact by any evidence

iff to establish with at least a reasonable degree of

« EelmineJätka »