« AnteriorContinuar »
from the recorder's court of said City, upon | People, 11 Mich. 351; Tiedeman, Pol. Powers, complaint filed therein, charging him with a $ 104; 1 Dillon, Mun. Corp. 58 381-392. violation of the ordinances probibiting the The case of Le Claire v. Darenport, 13 Iowa, establishment of privale markets for the sale 210, goes much further, in that it protected & of fresb meats within the limits in said City private individual in the exclusive privilege to prescribed by the aforementioned ordinances. furnish a market-place. The plaintiff was at the time a renter of stalls Palestine v. Barnes, 50 Tex. 539, seems to in the said market-house erected by the City. bave recognized the power of a municipal corand vended meats therein, as well as at his poration to confer like exclusive market privi. private market. The prosecution in the re- leges. We refer to the last two cases cited for correr's court was pending at the time of the illustrations of the rulings on the general ques. filing of the bill and the service of the writ of tion before us, but are not called upon, by the injunction in this case. The bill charges that facts of this case, to adopt or reject them on the plaintiff's private market baving been es- the question of power to confer such exclusive tablisbed at an expenditure of bis moneys in privileges. The character of power tbe City October, 1884, under permission from the ciiy exercised in authorizing meats to be sold in council, his right to conduct the same, un private markets was not such as the City could molested, bad become vested, and the City was be prevenied from exercising again by with. without authority to interfere with bim in its drawing the privilege whenever the public exercise; and the ordinances passed subse. good required it. The police power possessed quently in October, 1084, probibiting the estab- by sich corporations cannot be feitered by lishment or conduct of private markets within contracts, but must be left free to be exercised the limits therein defined, are null and void, at all times, whether in conferring or within so far as they alfect that right; that the said drawing privileges once conferred. If license ordinances are in restraint of trade; that the tax bad been paid for a year, this would not enforcement of them would be to deprive the deprive the City of the power to withdraw the plaintiff of his property without due process privilege before its expiration, if the public of law; and also other matters, -all of which welfare demanded it. Much less would the are specitically denied in the defendants' an- fact that the City for a time bad received the swer."
tax, and granted the privilege, make it incumUnder the provisions of the charter empow. bent on it to continue to do so. If appellant ering the City to establish market-houses, des expended money in preparing his private marignate, control and regulate market places, and ket place for the conduct of his business, be to regulate the vending of fresh meats, poultry, did so with full knowledge that the City might fish and other things, no doubt can exist of the at any time forbid the business to be there conpourer of the City to esiablish market-houses, ducted. The City has neither devested bim and to require fresh meats 10 be sold there, of a right por deprived him of his property, and also to forbid their sale at other places. nor are the ordinances complained of uulaw. Such a power is most necessary for the protec- ful because in restraint of trade. He is not tion of the heal'b of a city, and bas ofien been denied the right to sell meats, but is denied the recognized under charters not so clearly con- right to sell at a particular place. This is but ferring it as does tbe charter of the City of that regulation of his right which the cbarter Galveston. Buff'a'o v. Webster, 10 Werd. 100; of the City authorized it to make, aud it must Bush v. Scabury, 8 Johns. 418; Winnsboro v. be presumed ibat the city council in its action Smart. 11 Ricli. L. 552; Bowling Green v. Car. was prompted solely by a desire to promote son, 10 Bush, 65: Nero Orleans v. Stafford, 27 the public welfare. La. Ann. 417; St. Louis v. Weber, 44 Mo. 549; There is no error in the judgment, and it will Wartman v. Philadelphia, 33 Pa. 209; Ash v. I be afirmed.
NOTE.- Marriage ; sufficient proof of.
v. Boothbay, 9 Mass. 414; Hicks v. Cochran, 4 Edw, Marriage may be shown by cohabitation and re- Ch. 110. pute during the life of the persons whose marital The declarations and acts of parties are sufficient relations are in dispute, or during the life of one of to prove their marriage. White v. Lowe, 1 Redf. them. It may be proved in this manner in an 377. action brought by husband and wife jointly. Road. The facts that parties have publicly acknowl. Ing F. Ins. & T. Co's. App. 4 Cent. Rep. 678, 113 Pa. edged each other as husband and wife (Kansas 204; Crozier v. Gano, 1 Bibb, 257; Hammick v. Bron- Pac. R. Co. v. Miller, 2 Colo. 442, 461: Barnum aon, 5 Day, 290; Boatman v. Curry, 25 Mo. 433. v. Barnum, 42 Md. 2-1, 206; Chamberlain v.
So in actions against husband and wife. See Chamberlain, 71 N. Y. 433, 4 7; Re Taylor, 9 Paige, Pettivgill v. McGregor, 12 N. H. 179; Newburyport | 611, 617; Jones v. Reddick, 79 N. C. 291, 292); bavo
See also 16 L. R. A. 699; 17 L. R. A. 847, 848; 35 L. R. A. 794.
8. Evidence of cohabitation and re- 1. Io divorce suits, if marriage be not admitted,
pute is admissible to show a marriage in it must be proved. all cases where there is no question of public Stewart, Mar, and Div. & 354; Bishop, Mar. offense involved.
and Div. & 262; Brinkley v. Brinkley, 50 N. Y. 4. Proof of marriage by cohabitation
and repute may be made in a suit for divorce 184, 193; Collins v. Collins, 80 N. Y. 1, 5; Emer: on the ground of auultery as well as in other 8011 v. Shar, 56 N. H. 420.
Wbile cohabitation and matrimonial reputa6. No reversal will be granted for the tion are facts from wbich a prior ma
may allowance of leading questions unless there has sometimes be presumed, boib must concur, to been a manifest abuse of discretion.
be even prima fcie evidence of marriage 6. A reversal for the admission of irrel. Neither is, alope, evidence of marriage.
evant evidence, where the court tried the 1 Bishop, Mar, and Div. $ 438; 1 Grernl. Ev. case, will not be made unless it appears that the $ 107, and cases cired; Cargile v. Won, 63 MO. evidence was relied upon by the court in making 501; Foster v. Harley, 8 Hin, 69; Smtl's Esits decision. 7. Want of a finding will not warrant a the l'oor v. Nathans, 2 Brewst. 149, 3 Pa. L. J.
late (Pa.) 1 Leg. Gaz. Rep 210; Guruliins of reversal where the evidence would not have justified a finding in favor of the complaining Rep. (Clark) 139; Becki: Anp. 2 Brewst. party.
202, 1 Phill. Ev. 234, 225; Herrey v. llerocy, ? 8. A marriage between a man and his W. Bl. 877; Birt v. Barloin, 1 Doug. 171, 174;
housekeeper was held to be established. Reall v. Pri88er, 1 Esp. 213; Leader v. Barry, although they never bad any marriage ceremony | 1 Esp. 353; Doe v. Fleming. 4 Bing. 266; performed, and illicit intercourse began between Smith v. lluson, 1 Phillim. 294; Lammick v. them within one week after she came into bis Bronson, 5 Day, 290, 293; Rose v. Clark, 8 house without any promise of marriage, and for Paige, 574; Ford v. For:1, 4 Ala. 142: Jenkins v. several years thereafter and until their removal Bisbec, 1 Edw. Ch. 377; Whitehend v. Cinch, to another place she was not regarded in the com- 2 Hayw. (N. C.) 3; K’ull v. k'nauer, 7 B. Mon. munity as his wife, where several children were born to them, and after their removal she was
130; Com. V. Stump, 53 Pa. 132. treated by him in all respects as his wife and so
To raise the presumption of marriage from introduced by him to the people of the com-cobabitation and reputation, the reputation munity, and so regarded and treated by ali their must not be divided and the cohabitation must acquuintances in the limited circle in which they be matrimonial in its inception. moved.
Clayton v. Wardell, 4 N. Y. 230, 235; Bar. (Works, J., dissents.)
num v. Barnum, 42 Md. 251; Cunningham v. (January 2, 1890.)
Cunningham, 2 Dow, P. C. 492; 1 Fraser,
Dom. Rel. 207; Jones v. llunter, 2 La. Ann. A , 1 Bell, App. Cas.
The Superior Court for the City and County 736, 9 Clark & F. 327. of San Francisco in favor of plaintiff, and Evidence of cohabitation and reputation from an order denying a motion for a new should be resorted to, 10 prove a prior actual trial in an arvion for a divorce. Affirmed. contract of marriage; only wben, by lapse of
The facts are fully stated in the opinion. time, or dealb of the parties, or other sutucient
Mesxrx. Jarboe, Harrison & Goodfel. reason, it has become impossible to obtain dilow, with Mr. George E. Nourse, for rect proof of such actual marriage. appellant:
Clayton v. Wurdell, 4 N. Y. 235, 240; Bishop,
agai med marriage rights, duties and obligations the celebration; still, if the parties have cohabited, (Com. v. Hurley, 14 Gray, 411, 412); have been geo- such evidence may be, in certain casi &, deemed erally (Boone v. Purnell, 28 Md. 607, 627; Cunning. relevant (George v. Thomas, 10 U. C. Q. B. 604, ham v. Cunningham, 2 Dow, P. C. 48:2, 511; Yard-606: Chamberlain v. Chamberlain, supra), on the Jey's Estate, 75 Prt. 207, 212: Badger V. Badger presumption that such cohabitation was lawful. 88 N. Y. 5461 reputed in the place of their residence Cargile v. Wood, 63 Mo. 501, 513; Case v. Case, 17 to be husband and wife (The Breadalbane Case, L. Cal. 598, 600, R. 1 1. L. Sc. 182, 189, 193; Holmes v. Holmes, 1 Cohabitation and repute may thus be direct Abh. (U. S. 5:25; Green v. State, 59 Ala. 68. 70; Bid. evidence of a valid marriage (Guardians of Poor ington v. Munson. 33 Conn. 481, 487; Bowers v. Van v. Nathans, 2 Brewst. 149, 153; Donnelly v. Donnel. Wukle, 41 Inil. 43, 435; Miller v. White, 8) DI. 580, ly, 8 B. Mon. 113, 117), or indirect (The Breadalbano 58.5; Proctor v. Bigelow, 38 Mich. 282, 283; Redgrave Case, L. H. 1 H. L. Sc. 182, 189, 103; Cunningham v. v. Redgrave. 28 Md. 93, 97; Henderson v. Cargill, 31 Cunningham, 2 Dow, P. C. 482, 511: Breakey v. Miss. 367, 408, 109. Richard v. Brehm, 73 Pa. 140, 141). Breakey, 2 U. C. Q. B. 349; Holmes v. Holmes, 1 -are rolevant to prove a contract of inarriage be- | Abb. (U. 8.) 525; Jewell v. Jewell, 42 U. S. I How. tween them (De Thoren v. Atty-Gen. L. R. I App. 219 (11 L. ed. 103); Blodget v. Thornton, 3 Cranch, Cau, 686, 6.)4; Campbell v. Campbell, L. R. I H. L. Sc.C.C. 176; Green v. State, 59 Ala. 68, 70; Arthur v. 182, 20; Largtry v. State, 30 A la. 536 537. See Stute Broadnax, 3 Ala. 557, 559; Case v. Case, 17 Cal. 598, v. Wilson, 22 Iowa, 367, 365: Richard v. Brelm, 600; Burlington v. Munson, 33 Conn. 481, 487; Kansas supra); and consequently, in cases where no celc- l'ac. R. Co. v. Miller, 2 Colo. 442, 461: Burns . bration is necessary, are sufficient to prove a valid Biros, 13 Fla 369, 380; Lowry v. Coster, 91 DI. 182, marriage. Langtry v. State and Staie r. Wilson, 184; Miller v. White, 80 III. 580; Harman v. Harman, supra; Com. v. Jackson, 11 Bush, 679, 686; Blaeini v. 16 111. 85: Bowers v. Van Winkle, 41 Ind. 432, 433; Blasini, 30 La. Ann. 1388, 1347; Cayford's Case, 7 Me. Nossaman v. Nossaman, 4 Ind. 648; Blanchard v. 57, 59; Herdergru v. Cargill, 31 Miss. 367; Davis v. Lambert, 43 Iowa, 228, 230: State v. Wilson, 2. Iowa, Duvis, 1 Abh. N. C. 141, 148; Forney v. Hallacher. 8 364. 365; Sneed v. Ewing. 5 J. J. Marsh. 460. 491; DonSerg. & R. 159, 161; State v. Hilton, 3 Rich. L. 434, nelly v. Donnelly, supra: Holmes v. Holmes, 6 La. 435.
463; Blasini v. Blasini, 30 La. Ann. 1388, 1397: Taylor But in cases where a celebration is necessary, v. Robinson, 29 Me. 323, 328; Damon's Case, 6 Me. evidence of a contruct only is not relevant to prove | 148; Barnum v. Barnum, 42 Md. 251, 206; Redgrave
Mar. and Div. § 248; Port v. Port, 70 I11. | 490; Hill v. Burger, 3 Bradf. 432; Case v. 484; Hill v. Burger, 3 Bradf. 432; De Thoren Case, 17 Cal. 598, 600. V. Alty-Gen. L. R. 1 App. Cas. 692; Case v. Marriage can only be created by agreement, Case, 17 Cal. 598, 600; People v. Anderson, | --consent of the parties, mutually and inter26 Cal. 133.
changeably expressed, at one and the same Cohabitation, reputation of marriage and time, to be to each other thenceforward busband declarations of the parties can in no case con- and wife. -stitute marriage.
Civil Code, $ 55; Stewart, Mar, and Div. Yardley's Estate, 75 Pa. 207, 211; Haynes v. $ 45, 46, 80, 85, 104; Rundle v. Pegram, 49 Ve Dermott, 91 N. Y.451, 456; Letters v. Cady, Miss. 751; State v. Worthingham, 23 Minn. 10 Cal. 537; Williams v. Williams, 46 Wis. 528, 533; Maguire v. Maguire, 7 Dana, 181, -464, 475; Floyd v. Calvert, 53 Miss. 37, 40; Case 183, 184; True v. Ranney, 21 N. H. 51; Dalv. Case, 17 Cal. 598; Emerson v. Shaw, 50 N. H. rymple v. Dalrymple, 2 Hagg. Consist. 54. 418; 1 Bish. Mar. and Div. § 259.
Mr. T. I. Bergin for respondent. If it appear that a connection apparently matrimonial, was in its origin meretricious, it Thornton, J., delivered the opinion of the is presumed to continue so, until that presumpcourt: tion is overcome by distinct proof of marriage. This is an action for a divorce a rinculo on
Cartright v. McGown, 10 West. Rep. 589, the ground of adultery, brought by plaintiff, 121 III. 338; Floyd v. Calrert, 53 Miss. 37, 40; Jane White, against the defendant, Lorenzo Rundle v. legram, 49 Miss. 751, 756; Badger v. E. While. Judgment was recovered by plainBadger, 88 N. Y. 546; Barnum v. Barnum, riff. Defendant moved for a new trial. Tbis 42 Md. 251, 297; Foster v. Hawley, 8 Hun, motion was denied, and defendant brings this 68, 71; Reg. v. Villis, 10 Clark & F. 749; appeal from the judgment and order. The deHunt's App. 86 Pa. 294; Cargile v. Wood. 63 tendant denied that he was ever married to the Mo. 501; Thompson v. Thompson, 114 Mass. 566, plaintiff. He claims that tbeir relations during 503; Plýsick's Estate, 2 Brewst. (Pa.) 179; Willihe whole period of cohabitation were those of liams v. Willians, 46 Wis. 477, 478; Turpin v. man and mistress. On this issue the court found Public Admr. 2 Bradf. 424; Com. v. Stump, 53 against him. The court found the following Pa. 136; Hantz v. Sealy, 6 Bion. (Pa.) 405; facts: The plaintiff, Jane Wbite, arrived in Reading F. Ins. & T. Co's App. 4 Cent. Rep. this Staie in the month of May, 1850.
She was 678, 113 Pa. 204.
then a young widow of twenty or twenty-ono No ceremonial marriage being claimed, plain- years of age, with an infant of tender age. In tiff can only establish a marriage in fact by ihe month of July, 1850, the defendant, at the proof of a mutual contract per verba de præsenti, City of San Francisco, engaged the plaintiff to to become then and there, and be benceforth, act as bousekeeper for him on the rancho San husband and wife. Both parties still living, Geronimo, situate in the County of Marin, at a this contract should of course be proved ex- compensation of $100 per month. In pursupressly.
ance of this engagement, plaintiff went to the Clayton v. Wardell, 4 N. Y. 230, 240; Bishop, place of defendant, the San Geronimo ranch, Mar. and Div. $ 248; De Thoren v. Atti/-Gen. L. 10 act as bousekeeper, and did there act as R. 1 App. Cas. 692; Port v. Port, 70 Ill. 484, bousekeeper for defendant. Shortly after the
v. Redgrave, 38 Md. 93, 97; Boone v. Purnell, 28 Md. and the fact of their mutual ignorance of disabili. 607; Jones v. Jones, 45 Md. 144; Com. v. Hurley, 14 ties to contract forbids any presumption that they Gray, 411, 412; Com. v. Holt, 121 Mass. 61; Proctor made a new contract. Rice v. Randlett, 2 New v. Bigelow, 38 Mich. 282, 283; Henderson v. Cargill, Eng. Rep. 406, 141 Mass. 385. 31 Miss. 367, 402; Spears v. Burton, 31 Miss. 547; Car- Cobanitation and repute do not constitute margile v. Wood, 63 Mo, 501, 512; Johnson v. Johnson, riage; they are only evidence tending to raise & 30 Mo. 72; Pettingill v. McGregor, 12 N. H. 179, 184; presumption of marriage. Cartwright v. McGown, Steveng v. Reed, 37 N. A. 49; Emerson v. Shaw, 56 10 West. Rep. 589, 12:21 NI. 388; Waddingham v. Wad. N. H. 418, 419; Re Taylor, 9 Paige, 611, 617; Chamber- dingham, 4 West. Rep. 834, 21 Mo. A pp. 609. lain v. Chamberlain, 71 N. Y. 423, 427; O'Gara v. Sexual intercourse which the parties know to be Eisenlohr, 38 N. Y. 296; Jones v. Reddick, 79 N. C. contrary to law cannot form even an element of 290, 292; Richard v. Brehm, 73 Pa. 140, 144; Com. v. murriage. Cartwright v. McGowu, supra. Stump, 53 Pa. 132; State v. Whaley, 10 S. C. 500, 502; Without proof of subsequent actual marriage, it Jackson y, State, 8 Tex. App. 60, 62: Northfield v. will not be presumed, from continued cohubitaVersbire, 33 Vt. 110, 112; Mitchell v. Mitchell, 11 Vt. tion and reputation, that a relation illicit in the 134; Oneale v. Com. 17 Gratt. 582, 587; Williams v. beginning has been changed to that of husband Wiliiams, 46 Wis. 464, 474); but in peither case 18 it and wife. Reading F. Ins. & T. Co's App. 4 Cent, more than prima facie evidence (Wilkinson v. Rep. 678, 113 Pa. 201; Harbeck v. Harbeck, 3 Cento Payne, 4 T. R. 468, 469; Myatt v. Myatt, 44 II. 473, Rep. 430, 102 N. Y. 714. 474; Guardians of Poor y. Nathans, supra), and The reputation of a man as unmarried, at a may be rebutted by showing absence of the es- hotel where he boards, and among people who sential contract The Breadalbane Case, supra. know nothing of the fact of his cohabitation with See also Floyd v. Calvert, 53 Miss. 37, 45; Bar- a woman at another place, whom he holds out as num v. Burnum, supra ; Goldbeck v. Goldbeck, his wife, does not detract from the effect of such 18 N. J. Eq. 42, 43) or capacity. Breakey v. Break cobabitation and acknowledgment of the marey, supra. See also Case v. Case, supra; Clark v. riage. Gall v. Gall, 114 N. Y. 109 Cassidy, 64 Ga. 662, 665; Cram v. Burnham, 5 Me. In civil suits generally presumptive evidence of 213, 215; Collins v. Collins, 80 N. Y. 1, 9; Emerson v. marriage is prima facie suflicieut; but in suits for Shaw, supra, cited in Stewart, Mar. and Dir. 8 132. criminal conversation, adultery, polygamy, etc., a
Marriage cannot be proved by cohabitation more rigid rule is required. Green v. State, 21 Fla. alone, where it points only to the illegal contract 403; Wadding ham v. Waddiogbam, supra. between the parties under which it commenced;
arrival of plaintiff at the house of defendant may afford strong, and in Scotland, attending on the rauch, defendant bad illicit intercourse to the laws of marriage there existing, unanwith plaintiff; and thereafter, in the year 1851, swerable, evidenre that at some unascertained a child was born, the fruit of such intercourse. time a mutual agreeinent 10 marry was entered About the year 1853 another child was born to into by the parties passing as man and wife. I the parties. Between the birth of the first child cannot, bowever, tbink it correct 10 say that and the lirib of the second, the plaintiff and de- habite and repute in any case make the mar. feodant mutually agreed to marry, and did mar. riage;
but I prefer to say that kabite ry, each other, and did thereafter live and co- and repute afford, by ibe law of Scotland, as, babit together as busband and wise, and con- indeed, of all counties, evidence of marriage tipued to do so from that time continuously up always strong, and in Scotland, unless met by to a sbort time before this action was begun. counter evidence, generally conclusive." Lord The marriage of tbe parties was not performed Westbury observes, in the same case, as folby any clergyman or minister of tbe law, but lows: "Exception may possibly be taken to was assented to and agreed upon and entered in some few words occurring in one of tbe judg. to by and between the parties themselves, and menis (referring to a judgmentin ibe court befrom that time to the commencement of this low] wbich represents cobabitation with babit action the parties have ever treated and held aud repute as a mode of coulracting marriage. each other out to the community, their friends Perbans it may not be stricily correct 10 say and acquaintances, as busband and wife, and that it is a modle of contracting mariage. It they bave always been accepted, received and is rather a mode of making manifest to the treated as such by their friends and acquain. world that tacit consent which the law will in. tances and the community. Other children fer to have been already interchanged. If I than those mentioned were born to the parties. were lo express what I collect from ibe differ. At the time this suit was begun there were ent opinions on the subject, I should rather be two children living, the fruits of the intercourse inclined to express the rule in the following between the parties. One of these was a language: Thai cohabitation as busband and daughter, named Nellie, born in March, 1858, wife is a manifestation of the partic's having and the other a son, named William, born in consented to contract ibat relation inter se. It January, 1859.
is a holding forth to the world, by the manner In regard to the issue of the marriage, it is of daily life, by conduct, demeanor and babit, clear that there was never any promise to mar. that the man and woman who live together ry made between the parties eiiber by present have agreed to take each oberio marriage, and words (per verba de præsenti) or by words in the to stand in the mutual relation of busband and future (per terlo de futuro). But it is urged on wife; and when credit is given by ibose among behalf of plaintiff ibat the evidence shows co- whom they live, by their iclativi's, neighbors, habitation and repute sufficient to establish a friends and acquaintances, to these representamarriage. Such seems to have been the view lions and ibis continued copiluct, then babil and of the cas taken by the court below. That a repute arise, and allend upon thic colabitation. marriage may be inferred from cohabitation The parties are boldeo and reported u be busseems 1o be the settled law of most countries. land and wife; and the law of Scotland accepts The law of Scotland is set forth, and the cases this combination of circumstances as evideuce on this subject are collected and commented that consent to marry has been lawfully interon, by a learned and distinguished writer, changed. Probably, therefore, in the correct Patrick Fraser, LL. D., in bis able work on the expression of the law, it would be more proper Law of Scotland regarding the relation of bus to say that cohabitation, with liabit and repute, band and wise. Sce chapier 8 of Fraser's is a n ode of proving tbe fact of marriage, vath"Husband and Wife,” the work above referred er tban a mode of contracting marriage.' Id. to.
211. To the same effect is the opinion of Lord The law is thus stated in the initial sentence Moncreiff in Lapsley v. Grierson, 8 Cl. Sess, of the chapter just referred ļo: “It a man and Cas. (2d Series) (Dunlop, B. & M.)61, and in a woman coba bit loyeiber as busband and wife, Lourie v. Niercer, 3 ('t. Sess. Cas. (20 Series,). and are beld and reputed by their neighbors (Dunlop, B & M.) 966. and friends as married persons, tbey are pre- The same rule is recognized by the law of sumed to uave entered into marriage." The England. See Goodman v. Godinan, 28 L. J. learned author adds to the above, by way of N. S. Ch. 745; Plunkett v. Starpe, 1 Lee, explanation, that “cohabitation and repute do Eccl. 441; Bond v. Bond, 2 Lee, E«cl. 45; not make marriage. They are merely items of Diddear v. Faucit, 3 Pliillim. Ecrl. :80:ller evidence from which it may be inferred that rey v. Nerrey, 2 W. Bl. 877. See Siarkie, Ev. a murringe had been entered into."
41h ed 45, where the doctrine is explained. The facts iu evidence must be such as to The observations of Starkie are quoted in justify the iplerence that matrimonial con 1 Fraser, Ilusband and Wife, 397. Sve also resent bad been interchanged between the parijes, marks of Lord Cranworth in Campbell v. for ibe matrimonial contract is formed by con Campbell, L. R. 1 H. L. Sc. 199, 200. Fraser seni, ada cousent alone. See 1 Fraser, Husb. states that the rule is ackn' wledged to a limited and W. 393.
extent in Code Civil of Franc, in ruation to Lord Cranwortn, in his judgment in the case the legitimacy of children. Fraser, Husband of Campbell v. Campbell (a Scotch appeal case) and Wife, 397, 398. L R. 1 H. L. Sc. 200, 201, tbus expresses bim- The proof of marriage by cobabitation and self on this subject: "Marringe can only exist repule bas been recognized in many cases in as the result of mutual agreement. The con- the United States, as in Fenton v. Reed, 4 Jobos duct of the parties and of their friends and 52; Clayton v. Wardell, 4 N. Y. 230; Jones V. neighbors, in other words habite and repule, l Hunter, 2 La. And. 254; Burnum v. Burnum, 42 Md. 251; Cargile v. Wood, 63 Mo. 501; Foster terchanged the requisite matrimonial consent v. Hawley, 8 Hün, 68; Bicking's App. Brewst. In eacb of these cases the whole facts as 10 ihe 202; Purcell v. Purcell, 4 llen. & M. 512; lives and conduct of the parties were examined Brinkley v. Brinkley, 50 N. Y. 197, 198; to sce if they did not prove a marriage by habit Hynes v. McDermott, 10 Daly, 428, $2 N. Y. 46, and repute, and it was beld insullicient because 91 N. Y. 451, Badger v. Badger, 88 N. Y. 554; the repute was not general aud uuiform, but Van Tuyl v. Van Tuyl, 57 Barb. 237; Rose v. singular anıl divided. Clark, 8 Paige, 580--582.
Tue opinions in the cases above referred to That a marriage in Ibis State may be estab- were examined in Campbell v. Campbell (known lished per terba in presenti, or by a contract as the “Breadalbane Case") L. R. 1 11. L, Sc. per verbu de futuro, cuin subsequente copula, was 182, and the language of the opinions in them recognized in Estate of McCausland, 52 Cal. 577. explained; and the conclusion there reivhed The coutract characterized as entered into per was that, though the connection was in its beverba de futuro is only evidence of marriage as ginping illicit, yet the subsequent conduct of proving the requisiie matrimonial consent. ibe parties might be such as to give satisfactory Such consent is essential to every marriage proof, by babit and repute, that the married (1 Fraser, Ilush, avd W. 415); and, prior to the status had been assuined. Theic, eminent law adoption of the Civil Code in this diale, con lords discussed the question, and reached the sent alone constituted marriage. The law at conclusion above stated. that time was correctly expressed by the Latin In the Breada'bane Case the controversy words, “consensus non concubitus facit nup arose as to the legitimacy of a son of James tias.” As cohabitation and repute are only a Campbell, who eloped wiih the wife of one mode of proving the required consent, and Ludlow in 1700 or 1731. Ludlow died in 1784 tbus establisbing marriage, there is no reason Up to tbat time no marriage could take place. wby the rules above stiled regarding cobabita- Tue court held ibat the evidence proveu that tion and repute did not obtain in this Siale after that time, and during the life of James during the greater part of the period of the co- Campbell, the babit and repite was all unihabitation of the parties to this action. form and undivided, and established a mar
The evidence in this case plaivly shows, and riage between Campbell and the former wise of it is so found, that the inicrcourse between Ludlow. the parties was in its beginning illicit and mere. The change must be such as is above pointed tricious, and it is coplended (1) that it is pre-out. This must be so when the connection in sumed to continue illicit and meretricious un- its origin is illicit, and there is no impediment til such presumption is overcome by di-tinct to the marriage. There was none in iuis case, proof of marriage; and (2) ibat mere continued nor in the Lulhougie Case. In ibe case before cobabitation and reputation of marriage creare us, as in the Balb.ugie, llicre was merely po presumption of a subsequent marriage in illicit cohabitation. Surely there must be such case. With regard to this contention, we'cbange from mcie illicit colabitation, or a think it may be considereil as sound and sculled marriage cannot be said to be proved, since law that as regards the cohabitation of a man illicit cohabitation cannot establish a marriage. and woman, not shown to have been in iis There must be a change operated by a cohabi. origin illicit, the presumpiion is that it is lawful. tation wbich the law regards as licit; and such Per Loru Eldon in Cunningham v. Cunning. change may be operated by colabitation and ham, 2 Dow, P. C. 482; per Lurd Redesdale in reputation.
Io the case of Lapslcy v. Grierson, and in The law always presumes, in the absence of the Breadaibane Case, where the connection proof to the contrary, that the conduict of men began, one of the parties, the woman, bad a is lawful, and in accordance with the rules of husbaod living. In the Dreadlalhane (are, the morality. Lapsley v. Grierson, 1 II. L. Cas. I marriage was not contended for during the life498.
time of Ludlow, the husband. Hledicd in 1781, But wben the intercourse was illicit from tbe and the pailies continucd to collabit from that beginning, in the absence of evidence from time until the death of James Campbell in wbich a change to the matrimonial relation 1806; and during lbis period from the death of may be inferred, it is presumed to continue. Ludlow, to the death of Campbell, and unThe state of illicit intercourse is presumed to doubiedly from 1793 to 1806, the woman, Eliza continue until the evidence shows that i be in Marie Blanchard, was received and treated as tercourse of the parties bas become matrimonial. bis wife by his fainily and friends and all their
The above, we think, is the meaning and ex- acquaintances. There was evidence in the tent of the decision in the case of Cunningham v. Breudalbane Case tending to show that there Cunningham (known as the “Balbougie Care"), had been a formal marriage celebrated in 1781 above citrd. No greater change than that above or 1782, and some evidence tbat Eliza Marie indicated is required. There are some expres- Blanchard was recognized by Campbell's family sions in opinions in the cases of Cunningham v. as bis wise; and it was in regard in this it was Cunningham and Lapsley v. Grierson, wbicb argued that there was a change. It was said •seem to go further. But on a particular ex. that Campbell was deceiving his family and amination of the above cases it is manifest that friends by passing the woman off as being the learued court that decided tbose cases did his wife, and leading his relatives and friends not intend to hold that in the case where tbe in. to believe that she was his wife. It was said tercourse in its inception was illicit, that that that this system of deceptioa continued during circumstance prevented the establishment of the entire period of the cobabitation of Camp the marriage status by the subsequent conduct bell with the woman; and on this it was argued of the parties, showing a general, undivided ibat, as there was no change in this system of deand uniform babit and repute that ibey had in- ception, there was no evidence which operated