« AnteriorContinuar »
a change, and showed cohabitation and repute, | Barnum, 42 Md. 297; Foster v. Harley, 8 Hun and therefore no marriage was proven. It was 68; per Lord Campbell in Reg. V. Millis, 10 Clark in ibus regarding tbe case, or in regarding the & F. 749; Hunt's App. 86 Pa. 294; Physick's conduct of the parties as the same, whether Estate, 2 Brewst. 179; Williams v. Williams, 46 before or after the death of Ludlow, that Wis. 478; Dysart Peerage Case, L. R. 6 App. it is stated in the head note that the court Cas. 539, per Lord Watson. held that the change in the character of the It is a disputed question whether the preconnection from adulterous to matrimonial sumption here referred to is one of law or fact. need not be indicated by any public act or by The decisions leave it in doubt. any observable change in the outward dem. Io Cargile v. Wood, 63 Mo. 511-514, an inonstration. It cannot be seen bow such a struction in which it was stated that the preproposition can be true, unless the public acts sumption was one of law was approved. and outward demonstrations were the same In State v. Worthingham, 23 Mion. 5:6, it is before as after the removal of the impediment held not to be presumption of law, but one of to the marriage by the death of Ludlow. If fact. We find but one case (Caryile v. Wood, the conduct of the parties, and their treatment supra) woere it is held distinctly a presumpand reception by their friends and relatives, tion of law. had been such before the death of Ludlow as Bishop, in his work on Marriage and Divorce, would, but for Ludlow's being alive, bave says it is a presumption of fact. See 1 Bishop, shown a sufficient habit and repute to evidence Mar, and Div. $$ 506, 507a, 509, 513. marriage, the continuance without change of Certainly a condition of tbinys once existing the same conduct, reception and treatment is presumed to continue. Eaines v. Eames, 41 after Ludlow bad died might also prove a mar. N. H. 177. riage between the parties. In this view, what The distinction between a presumption of law is stated in tbe bead pote is correct, and only and one of fact, or an inference from facts in this view; for, if the conduct and treatment (Code Civ. Proc. $ 1958), is sometimes very thin; and reception of the parties before the death of but, treating the question arising on the Ludlow had not shown cohabitation and re testimony bere as one of fact, it is both logical pute, then necessarily, after Ludlow's death, and just to hold that a connection, illicit in its there must have been a change in the conduct, origin, will be presumed to continue to be so treatment and reception of the parties to bave until some change is established by evidence. evidenced a cohabitation and repute which Whatever be the cbaracter of the presumption, would establish a marriage. We do not think it cedes to a contrary probation.". In fact it that the court laid down the proposition an. is not necessary to decide bere whether the prenounced in the head note above referred 10; for sumption is one of law or of fact, for in either the opinions of the judges do show that there case it is rebuttable. We think it may be safely were public acts and our ward demonstrations held that the law will presume iptercourse from of parties from which habit and repute could cobabitation, and, where the illicit cobabitation have been inferred. This is plain from the continues, that the law will presume illicit inLord Chancellor's opinion; for after saying that, tercourse. It seems to be well setiled that the taking the rule to be settled by the case of repute which, with cobabitation, will be proof Cunningham v. Cunningham that an illicit of marriage, must be uniform and general, not connection at the beginning can only be divided and singular. Cunningham v. Cunchanged in character by some undoubted and ningham, 2 Dow, P. C. 482; Jones v. Hunter, open act of the parties, he proceeds to consider 2 La. Ano. 254; Hamilton v. Hamilton, 1 Bell, whether tbe circumstances of the case before App. Cas. 736, 9 Clark & F. 327; Com. v. bim were not sufficient to establish a marriage Stump, 53 Pa. 132; Barnum v. Barnum, 42 between James Campbell and Eliza Marie Md. 297. Blanchard, and concludes that they did. To If repute lacks uniformity and is divided, the same effect is the argument of the other then such repute cannot prove a marriage. Let learned judges, Lords Cranworth and Westbu- us look to the evidence here on ibis matter of ry. That they do find in the evidence uncontra repute. It should be stated bere that a change dicted and open acts of the parties which show from illicit to licit or matrimonial relations cobabitation and repute, and a marriage, will may occur, and be satisfactorily established, be plainly seen on a perusal of the discussions although the precise time or occasion cannot of the evidence in the case by the learned law be clearly ascertained. Badger v. badyer, 88 lords. It cannot be perceived how repute can N. Y. 554; Caujoile v. Ferrie, 23 N. Y. 90. be established in such a case, except by the Such seems to have been the opinion of the open, undisguised and undoubted acts of the judges who decided the Breadalbane Case. parties wbich are visible to outsiders. As rep- We proceed to the consideration of the eviutation is no more than bearsay derived from dence of this case. those who had means of knowing the fact (1 The testimony shows that the connection Starkie, Ev. 4th ed. p. 40) bow can the means between the plaintiff and defendant began in of knowledge be derived from anything other 1850. The parties were then living on the San than the acts of the parties, and bow can any. Geronimo Ranch, in Marin County. The dething be known by others from the acts of the fendant came from that place to San Francisco parties, unless they are open and visible? in July, 1850, where defendant met plaintiff,
There are many cases in which it is beld that, and, after an acquaintance of not more than a when the connection between the parties is week be engaged her to go and live with him illicit, the presumption will be that the rela- on the ranch as housekeeper. She was a young tion continues as it began. Floyd v. Calvert, widow with one child, and bad come to San 53 Miss. 40, 46; Rundle v. Pegram, 49 Miss. 750; Francisco from Australia. The defendant was Badger v. Badger, 88 N. Y. 546; Barnum v. I about the same age. She went over to the ranch with him in the month mentioned above. I to the period extending from 1850 to 1855 or The bouse occupied by the parties there had | 1856 shows a divided repute; the evidence that two rooms, one of which was used as a kitchen. plaintiff was the mistress of defendant, and not The defendant slept in the kitchen, and the other his wife, greatly preponderating. This aproom was given up to plaintiff. The illicit in-pears from the testimony of Dickenson, Tay. tercourse commenced within a week after lor, Curran, Clingan and Moultbrop. The plaintiff reached the ranch, and continued for evidence of the witnesses above mentioned is a period wbich cannot be definitely designated. all one way as to the repute during the period In 1882 the defendant quit living with plaintiff. just mentioned. The only contrary evidence, In 1851 a child, the fruit of the intercourse of which is of small consequence, comes from the the parties, was born. Another was born in witness Clingan, that the women around Corte 1853. A third child was born at Corte Madera, Madera called her Mrs. White. There was no in Marin Courly, and a fourth at Petaluma in other repute than the above during the time January, 185). The plaintiff testifies that she they lived in Marin County, from which they was his wife from the beginning; that after the removed to Mendocino County in the spring of birth of the first child plaintiff said to ber that 1858, at which time they went to Long Ridge, before God and man she was bis wife, under the in that county. From this place they removed laws of California. Defendant denies that he to Albion, in the same county, in September or ever said so. There was never any formal October, 1861, where they remained until Occeremonial marriage between them. In a dep tober 1868, when, in the month just named, osition, which appears in the record, the fo!low. they came to San Francisco, and liave resided ing question was put to her by counsel for ibere togelber until August, 1889, when the defendant: “Tben, what I understand you to defendant quit living with plaintiff. After the say is that the vay that you became his wife was parties removed to Long Ridge, in the spring by sleeping with bim and being called wife by of 1868, we bear nothing of any reputation him in the presence of others?” to which she that they were living together as man and misanswered: "Ves, sir.” She subsequently ad-tress, ded to this: "In society, wbat little we go, he We rarely collate the evidence in regard to has alway, called me bis wife." She states that its sufficiency to justify the decision, but we White introduced ber to his accquaintances as propose to do so in this case, by giving the subbis wife. Lefendant admits that he did at stance of the testimony of each witness bearing times, after the birth of his daughter Nellie, in on the point. 1856, introduce ber a8 bis wife. That be A W. McPherson knew the parties as Mr. did so when Le fourd bimself in a position and Mrs. White from 1861. They addressed that he bad to say something. When she was each other as Mr. and Mrs. White. They were with him, and be bad to say something for the introduced to bim as Mr. and Mrs. White. protection of wis childreu, he had introduced II. H. Hundley bas known the partics since her as bis wife. That be sought no opportunity | 1866. They were commonly known as Mr. to do so, and bed not gone into society with and Mrs. White. Has known the children her. The plaintiff states that he introduced during the same period by the names William ber to his father and mother as his wife. De White and Nellie Wbile. fendant testified that be made them acquainted Patrick Cleary bas known the parties since someway,--.u could not tell how; that he 1862. Recollects one time they visited his treated plaiutitt well; that they were living family. May have visited his family other together and left his parents to infer the rela- times. When they made this visit be lived in tion between then..
the city, and they lived at Albion. He visited Mrs. B. F. White, mother of defendant, testi. them as Mr. and Mrs. White. They bebaved fied on this point. She and ber husband (father towards each other as any other man and wife of defendant) came to this Siale from New York bebaved. Never heard anything to the conat defendani's eapieros. They lived in defend trary, except a rumor about two years ago. ant's home for some months wben be kept a (This would be about the time of the separation hotel at Albiou, in Meridocino County, arriving of the parties, which was in August, 1882. ibere in 1866. A daughter came with them. The wilness gave bis evidence at the trial, The mother testities that the defendant in which took place in Décember, 1894 ) troduced plaintiff as "the madam," and that Thomas Pollard bas known defendant about she supposed that shu was bis wife, and treated twenty years, and plaintiff fourteen or fisicen her as his wife. The daughter (defendant's years. They are known as Mr. and Mrs. sister) testifies substantially to the same effect. White. Have known the children about fourShe does not remember who introduced her to seen years. They go by the name of White. the plaintif, or how she was introduced. Shelle was asked to state to the court bow the supposed plaintiff was bis wife; that they lived plaintiff and defendant have been commonly together as husband and wife; and she further reputed,- , -as busband and wife, or otherwise; states that the plaintiff was received and treated to which bis reply was: "I never knew any. by ber father and motber and her relatives as thing to the contrary till recently." This witthe wife of defendant. She further states that ness stated that he lived with bis family in this she did not remember that she ever heart city, right across from White; that White never defendant address plaidiiff as bis wife. He took plaintiff to visit bis (witness') family at addressed ber as “Jave" "or Madam.” This his house; Ibat be bas "no direct knowledge of evidence shows that be sometimes called her White's ever taking her into any company to "wife."
visit the neighbors, or anything of the soit." On the point whether the parties were re- George 11. Smith states that be bad known puted to be husband and wife during the pe. W bite since 1861. Had known the plaintiff riod of their connection, the evidence in regard since 1902 or 1863. Knew them as Mr. and Mrs. White. They bad two children. He always judged from their conversation that knew them by the sames Nellie and Willie they were man and wife. He and his wife had W bite. Has beard defendant address plaintiff visited their liguse together. They always ap as "Madam." Could not swear that he had peared like a family living in barmony. beard Whitc call her "wife" or "Mrs. Wbile" Miss Annie Mapping had known the parties in speaking to or of ber.
about four years. She ibiuks they acied to The next witness was Mrs. Smith, the wife wards each other as busband and wife. They of the former wiiness. She met the plaintin acted towards their children us a father and about twenty years ago (ibis testimony was mother should. given on ibe trial, in December, 108!), and Mr. Jerome B. Ford became acquainted with deWbite about tnenty-two or twenty-tbree years rendant at Albion some time beineen 1955 and ago. She met them at Albion, in Mendocivo 1865. Was at the botel in Albion frequently. County. She lived near them. Knew tbc Ilad never been introduced to Mrs. White, and children Nellie and Willie. Sometimes sb never spoke to ber. They were said to be then bad seen plaintiff and defendant balf a dozen Vr. and Mrs. While,-L. E. While and wife. times a day,- sometimes more; sometimes less. Tad known the parties four vears next March. So far as she knew, they were known at Allir. White used to speuk 10 plaintiff as any bion as Mr. and Mrs. White. She had beard man would to his wife. Could not say what the defendant call the plaintiff "ibe madam,” wame be called Ler. “my wife" and "Jare.” She was not very B. H. Madison testified that he had known sure of any particular instance when she bearii Mr. Wbite ten or twelve years. llad visited defendant call plaintiff his wife. She was very tie bouse several times ou Business, and thinks positive she bad heard White call plaintiff lis be once made a social call with bis wife and wife, and more than once, and this in addressellest daughter. Both White and plaintiff in z ber.
were present. lle called her Mrs. While in the The next witness is Mrs. Helen M. Kim- presence of defendant, and of his wife and ball, who was the sister of defendant. Has family. known the plaintiť since 1865. Became ac James Brett had beard defendant speak of quainted with ber at her brother's (White's plaintiff as bis wise. His (wimess') wife adhouse, in Albion, wben he was keeping ibe dressed plaiutiff in presence of defendant as hotel ibere. She was introduced to her. Cap. lis wife. not tell how she was introduced to ber. Was James Kenny had known the parties for introduced by her brother. He usually ad.twenty-five or twenty-six years. llad koowo dressed ler as “Jane," and in speaking of lier them at Cuffev's Cove. I)e believed they had be called her "Madam;" and, in speaking 10 ived on a ranch there for live or six years as the children, "your mother." She does not Mr. and Mrs. White. He was on fricodly and remember ibat lier broiber introduced plaintill social terms with them during ‘hcir residence to her as bis wife. Does not remember that be at Cuffey's Cove. The reputation of their retold her she was his wife. ller understanding latiou while they resided there was that nf mao was that she supposed she (plaintiff) was his and wife, so far as he ever hearil. De first wife. They lived as husband and wife. She called at defendant's liouse. Thoon Mr. White and her favier and mother lived in the bouse introduced her; “but not sure defendant was with them eight moolis. She testifies further accustomed to speak to me and to others in my that plaintiff nas received and trea cd by hier resence of plaintiff as Mrs. White. If I refaiber and motlier (fatber and mother of de membr right, defendant introduced me to fendant also) and their relatives as the wife of paintilf as his wife;" but he has no distinct redefendant. She dues not remember lucaring collection of the introducing. While the par. her brother speak of plaintiff as Dirs. While. lies lived at Culley's Cove, beard a ruwor ibat She thought it a litile peculiar that be all they were not married. dresseriler as “Jane" or "Madam.” She does i Engene Brown bad known defendant a little pot kvow that shie spoke of it w ole living at nver inenly years, the plaintiff a lille less, the hotel. While they lived there they re while they resided in Mendocino County. garded her as White's wife.
Ile knew the reputation in the community in Mrs. W. L. Jenny testified that she had which the parlics liveil of the relation ihey krown the parties ninetcen or twenty yenis. bore to each other since he first knew them, She was introduced to plaintiff by a larly add up to the time be guve his testimony. The dameid Cunningham. Mr. While was ni reputation was ihat they livel together as mar. present. White never introduced plaintiff to ried people in Mendorino County, and bad ber. lle always caller ber "the madam." never heard anything to the contrary until ibis Knew llie children. They went lig the names livorce case came up. He did not link lie bad of Nellie White and Willie White. She liad courounded bis in ression of the facts with pot bien to their house for twenty years. Be public reputation thereof. lleone livr called fore that, used 10 call there once in a while. l.is wise once or twice in Mendocino County. Have taken dinner there a good many tin es. lad heard her called Mrs. While frequently, Mr. White was present. The witness was a but does not distinctly remember of bearing bier marued woman. She always thought tlie potr. called Mrs. Winte ai The Albion lle could ties acied towards each other as larsband and not rememler who of the people t Ti.c Alwife. She liever heard bin call her "nise." bion lie bad bearil say thi't plaintif aud deThe childien addressed Nir. White and the fendant were husband and wiie. pluintilf as their father and mother.
Mark D. Gray testified that we saw plaintiff George W. Le Mont had known the parties' at The Albion once in 1.7i. Dulemiant introsome ten or twelie or fourteen years. II:nd duchodzimniif as “llie madam." frequevtly taken lunch at White's Louse. He There is eviuence ücre, at least siuce 1861, of cohabitation and repute which tends to show peared tbat defendant had, after this cohabitaa marriage between tue parties. Sucb cobabi- livu, married another person. The evidence tation and repute "is a niode,” as said by Lord of cobabitation and reputation was objected to, Westbury in Campbell v. Campbell, supra, "of and tois court beld it inadmissible. The court, making inanifest to the world that tacit con. per Cope, J., said: “We think that, under the Bent which the law will infer to bave been al circumstances, an actual marriage should have ready interchangeit.” L. R. 1 H. L. Sc. 211. been provell. The general rule ibat in actions
The repute, wbich was nearly all one way of this nature the marriage may be inferred prior to 1758, afterwards underwent a cbange. trom ibe cobabitation of the parties, we do not We thivk the evidence tends to show that the understand in be applicable. We cannot inparties bad agreed to staud in the relation of dulge this inference without presuming that busband and wife. The defeodaut treated the the defendant bas been guilty of the crime of plaintiff as bis wife. If he did not in so many bigamy; and the fact that it involves such a wonis formally introduce the plaintiff to bis piesumption is sufficient to repel it. In the father and moiher and sister as bis wife, his absence of criminative proof, it is never to be conduct convincerl them tbut she was bis wife; supposed, as a mitter of legal presumption, and, according to the testimony of the sister tbat a person bas violated the criminal law; and (Mrs. Kimballi, she and the father and mother the presumption in favor of innocence, says a of defendant received plaintiff and treated her learned a riier, is not confided to proceedings as defendant's wife. They did not go much instituted with a view of punishing the supinto society, but in the contracted circle into posed otfense, but holds in all civil suits where wbich they went they were regarded and it comes collaterally in ques ion.” The learned treated as husband and wife. This treatment justice then proceeds is quote two extracts was induced by the conduct of defendant and from Bishop on Marriage and Divorce, and replaintiff. We do not ibiuk that the law requires fers to liec v. Tiyring, 2 Barn. & Ald. 386, ibe formal introduction by the husband of the and Clayton v. Wardell
, 4 N. Y. 230. The woman as bis wife to each niem ber of the cases ciled sustain the decision of the court in social circle into wbicb tbey go, but that his ase v. O'lse. But it will be observed that in conduct should justify her reception in such both cases there had been an actual marriage, circle as his wife. The defendavi's styling the by wbich, if there was a prior actual marriage, plaintitf "the madam," might well in luce per- the party would bave been guilty of a violasons 10 ubom he so introduced ber, or lotion of the criminal law from having commit whom he thus spoke of her, to believe that sbe ted tbe offense of bigamy. (ase v. Case aod wus bis wife. He admits that he did introduce ibe two cases go no further than what is just her as bis wife, and this is evidence ibat be some-above poidied out, and they proceed on the times spoke of her as his wife. He explains the ground that where a presumption of marriage introduction of ber as bis wife as a mode of is met by the presumption of indoren, e, wbich shielding bis children, but such mental reser- the defendant, on bis trial for bigamy, bas a valion cannot be considered of much weigbt. right to make, the weaker presumption gives The credit to be given to sucb reservation, and way to the stronger, which is the presumption the weight and value of the testimony, are mat- of innocence. This question is considered and ters for ile consideration and delermination of passed on in a criminal action in People v. the couri bulow. That tribunal weighed the Feilen, 58 Cal. 218, and is thoroughly discussed testimony, and found a marriage; and there is , in Jones v. Jones, 45 Md. 157, 158, 48 Md. not such a lack of testimony bere as will au- 397, 398 et 8 9. In every case above referred thorize this court to say ihat the evidence was 10, the strife was between two marria ges; the ipsuutlicieut to justify the conclusion of the trial antecedent marriage being one attempted to be court.
made out by the presumption ir inference from But it is urged that, inasmuch as the divorce cobabitation and repule, and the other an acis sought here on the ground of adultery, that mal marriage. See Taylor v. Taylor, 1 Lee, a marriage cannot be proved by cobabitation Eccl. 571, 5 Eng. Eccl. Rep. 454; Ror v. Troy. and repute; and, to sustain ibis, two cises are ning, 2 Barn, & Ald. 386; Poultney v. Fair referred to decided in tbis court: Case v. haven, Brayı. 185; Senser v. Bower, 1 Pen. & Case, 17 Cal. 600, and People v. Aderson, 26 W. 450; Myatt v. Myott, 44 III. 473; Slate v. Cal. 133. In ibe Taller case, which was an in. Holyskins, 19 Me. 158, 159. dictment for murder, a wiluess was called for The presumption of innocence will only arise the people, wbose competency was challenged when there is evidence brought to show that a by the defendant on the ground that she was party has been guilty of a penal offense; and his wife, and an attempt was made to show inis, we think, is the meaning of the portions that such was the relation of ibe witness to the of the text of Best on Presumptive Evidence defendant ly coloubitation and repute. The (page 64), and Bishop on Marriage and Divorce couri, per Sanderson, Ch.J., said that the gen. (sections 324, 325', referred to in Case v. ('ase. eral rule is ibat such evidence was admissible The language in the work on Presumptive (citing several autiorities to sustain this prop. Evidence depotes that a violation of the crimiosition), and then adols: "Actions of crim. con., nal law is referred to. The author says that divorce, indictments for bigamy and like cases, the presumption of innocence is not confined where the marriage is the foundation of the to proceedings for punishing the supposed ofclaim to be enforccil, or the crime to be pro- fense, but bolds in all civil suits where it comes isbed, are exceptions to this rule.” 26 Cal. 134. collaterally in question. What can il relor 10 Case v. Cuse was an action for divorce on the but to the offense wbich is punishable? It is ground of adiery. The only evidence of evident that Bishop, in the extract made in the marriage between the parti to the action was opinion (17 Cal. pp. 600, 601), refers to adultjat of colabitation and reputation. It ap-Itery as an offense against the public law. He
speaks of the benign influence of the presump-returned to the court below. During the cross tion of innocence, "in order to prevent the sus- examination of the plaintiff, defendant's counpicion that an offense has been committed.” sel, with a view of showing contradictory state We cannot find this section (325) in the last ments made by her, read to her from this depo edition of Bishop on Marriage and Divorce. sition several questions and answers, and id. In section 442 (vol. 1) Bishop states the rule quired of the witness “if that was correct; thus: “The marriage bas been required to be “Is that wbat you said then?” “Is tbal true?" proved by evidence other than of cohabitation An ob ection was made to this mode of cross and repute in actions for criminal conversation, examination. The court sustained the objecand indictments for polygamy, for adultery, tion, and the defendant excepted. The court, for incest, and for loose and lascivious cohab- no doubt, would have allowed the defendant itation,”-citing cases wbich sustain this as to to put in such portions of the deposition as be adultery. It will be remarked that he con might have selected to discredit the witness. fined this rule to indictments for adultery. The defendant certainly bas a right to show the This conld only be so where adultery was an contradictory sialements. To do this, as the indiciable offeuse. Now, we bave no statute, witness was a party to the action, it was pot and never bave had one, in tbis State, making necessary to call her attention to the statements mere adultery a penal offense. It was not a formerly made, inconsistent with ber statepepal offense at common law. 4 Bl. Com. 65. medis made on her then examination. Her The statule in this State makes the living in statements appearing in the deposition were open and notorious cohabitation and adultery admissions, and might bave been offered as an offense. See Stat. 1871-72, p. 330; People v. such. Tbe mode of cross-examination was obGates, 46 Cal. 52.
jectionable. It consumed time in doing what Section 123 of the Act concerning crimes and was utterly useless in asking the questions as punishments only refers to adultery between above stated. The court has the power, and persons living within the degrees of consan. should have it, 10 control the mode of examiguinity wiibin wbich marriages are declared nation of a witness, provided it does not trench by law to be incestuous and void. We think on the rights of a party. The defendant might that the weight of authority shows the rule to have put in portions of the deposition to sbow be that evidence of cohabitation and repute is the contradictory statements, and the court admissible to show a marriage in all cases would bave allowed the plaintiff to put in the where there is no question of a public offense remaining portions. The deposition was sub involved.
sequently offered and admitted. The stateThe statement of the rule in People v. Ander- ments wbicb the defendant desired to get be. son, supra, as regards actions for divorce, is a fore the court did ibus get before it. In this mere dictum, outside of the case, and is not state of the case, conceding that the court erred sustained by the decided cases or by the law. in ils ruling, putting a stop to defendant's mode There are cases which tend to show that such of cross-examination, tbe error was rendered evidence is admissible in a civil action when it harmless to the defendant by placing tbe depoproved the commission of a public offense. sition before the court as evidence; and, as no Archer v. Ilaithcock, 6 Jones, L. (N. C.) 421, injury was done by defendant, there can be no 422, 423; Sneed v. Ewing, 5 J. J. Marsh. 464, reversal for such ruling. 491.
It is objected that the plaintiff's counsel was In Jerell v. Jewell, 42 U. 8. 1 How. 224 (11 permitted to ask of the plaintiff, on Ler reL. ed. 110), the evidence seems to bave been examination, a question admitted by the court admitted by the lower court without objection, to be leading. The allowance of leading ques. and the point was not distinctly made in the tions, it is a well-settled rule in ibis State, is in supreme court. In the North Carolina case it the discretion of the trial court, and there is said that the only exceptions to the rule are should be no reversal for such allowances, unan indictment for bigamy and an action for less there is a manifest abuse of this discretion. criminal conversation. Îbe court expressed As we find no such abuse bere, there is no error. the opinion that what is competent evidence in The admission of the mortgage of plaintiff one case ought to be so in anoiber. In this and defendant to W. B. Spears, over the ob case the evidence was admitted in an action of jection of defendant that it was irrelevant, is ejectment to defeat rights under a second mar. not error. When tbe court tries the case, this riage, though the second marriage was for court never reverses for the admission of irrel. mally solemnized and proved by direct evi evant evidence, unless it appears i bal the court, deuce. Gardiuer, J., in a dissenting opinion in making its decision, relied on the irrelevant in Clayton v. Wardell, supra, expressed the evidence. It does not appear herein that the opinion that sucb evidence sbould be held ad court relied on such evidence. Conceding that missible in all cases. He said the distinction the admission of the acknowledgment of the between civil actions and criminal or quasi mort age was erroneous, the court is of the criminal proceedings was established by Lord opinion that the evidence is of so trifling a char. Mansfield, and has been adopted without ques acter that it could not bave prejudiced plaintion or investigation, apparently. We think tiff, and it declines to reverse for sucb ruling. such evidence was admissible here, and tbat It is contended that there is no finding on nothing in Case v. Case is adverse to it. The the issue of extreme cruelty, which was plead. point was not decided in People v. Anderson. ed by defendant in recrimination. The court It was not involved in the case, and we are is of opinion that the evidence on this issue convinced that the dictum there pronounced is was insufficient to bave sustained or justified a pot sustained by authority or law.
finding by the court below of extreme cruelly It appears that a deposition of the plaintiff by plaiutiff to defendant. The only evidence had been taken herein previous to the trial and woriby of consideration is that regarding the