arrival of plaintiff at the house of defendant | may afford strong, and in Scotland, attending on the ranch, defendant bad illicit intercourse to the laws of marriage there existing, unanwith plaintiff; and thereafter, in the year 1851, swerable, evidence that at some unascertained a child was born, the fruit of such intercourse. time a mutual agreement to 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, think it correct to say that and the birth of the second, the plaintiff and de-habite and repute in any case make the marfendant mutually agreed to marry, and did marriage; but I prefer to say that habite ry, each other, and did thereafter live and co- and repute afford, by the law of Scotland, as, habit together as husband and wife, and con- indeed, of all countries, evidence of marriage tinued to do so from that time continuously up always strong, and in Scotland, unless met by to a short time before this action was begun. counter evidence, generally conclusive." Lord The marriage of the parties was not performed Westbury observes, in the same case, as folby any clergyman or minister of the 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 the judg to by and between the parties themselves, and ments [referring to a judgment in the court befrom that time to the commencement of this low] which represents cohabitation with habit action the parties have ever treated and held and repute as a mode of contracting marriage. each other out to the community, their friends Perhaps it may not be strictly correct to say and acquaintances, as husband and wife, and that it is a mode of contracting marriage. It they have 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 intances and the community. Other children fer to have been already interchanged. If I than those mentioned were born to the parties. were to express what I collect from the differAt 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: That cohabitation as husband and daughter, named Nellie, born in March, 1858, wife is a manifestation of the parties having and the other a son, named William, born in consented to contract that 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 habit, clear that there was never any promise to mar-that the man and woman who live together ry made between the parties either by present have agreed to take each other in marriage, and words (per verba de præsenti) or by words in the to stand in the mutual relation of busband and future (per verba de futuro). But it is urged on wife; and when credit is given by those among behalf of plaintiff that the evidence shows co whom they live, by their relatives, neighbors, habitation and repute sufficient to establish a friends and acquaintances, to these representa marriage. Such seems to have been the view tions and this continued conduct, then habit and of the cas taken by the court below. That a repute arise, and attend upon the cohabitation. marriage may be inferred from cohabitation The parties are holden and reported to be husseems to be the settled law of most countries. band and wife; and the law of Scotland accepts The law of Scotland is set forth, and the cases this combination of circumstances as evidence 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 his 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 habit and repute, band and wife. Sce chapter 8 of Fraser's is a n ode of proving the fact of marriage, ath"Husband and Wife," the work above referred er than a mode of contracting marriage." Id. 211. To the same effect is the opinion of Lord Moncreiff in Lapsley v. Grierson, 8 Ct. Sess. Cas. (2d Series) (Dunlop, B. & M.) 61, and in Lowrie v. Mercer, 3 Ct. Sess. Cas. (2d Series,)(Dunlop, B & M.) 966.

to.

The law is thus stated in the initial sentence of the chapter just referred to: “If a man and a woman cohabit together as husband and wife, and are held and reputed by their neighbors and friends as married persons, they are presumed to have entered into marriage." The learned author adds to the above, by way of explanation, that "cohabitation and repute do not make mairage. They are merely items of evidence from which it may be inferred that a marriage had been entered into."

The facts in evidence must be such as to justify the inference that matrimonial con sent had been interchanged between the parties, for the matrimonial contract is formed by con sent, and consent alone. See 1 Fraser, Husb. and W. 399.

Lord Cranwortn, in his judgment in the case of Campbell v. Campbell (a Scotch appeal case) L R. 1 H. L. Sc. 200, 201, thus expresses himself on this subject: "Marriage can only exist as the result of mutual agreement. The conduct of the parties and of their friends and neighbors, in other words habite and repute,

"

The same rule is recognized by the law of England. See Goodman v. Goodinan, 28 L. J. N. S. Ch. 745; Plunkett v. Sharpe, 1 Lee, Eccl. 441; Bond v. Bond, 2 Lee, Eccl. 45; Diddear v. Faucit, 3 Phillim. Eccl. 580; Her tey v. Dervey, 2 W. BI. 877. See Starkie, Ev. 4th ed 45, where the doctrine is explained.

The observations of Starkie are quoted in 1 Fraser, Husband and Wife, 397. See also remarks of Lord Cranworth in Campbell v. Campbell, L. R. 1 H. L. Sc. 199, 200. Fraser states that the rule is acknowledged to a limited extent in Code Civil of France, in relation to the legitimacy of children. Fraser, Husband and Wife, 397, 398.

The proof of marriage by cohabitation and repute has been recognized in many cases in the United States, as in Fenton v. Reed, 4 Johns. 52; Clayton v. Wardell, 4 N. Y. 230; Jones v. Hunter, 2 La. Ann. 254; Burnum v. Barnum

In each of these cases the whole facts as to the lives and conduct of the parties were examined to see if they did not prove a marriage by habit and repute, and it was held insuflicient because the repute was not general and uniform, but singular and divided.

42 Md. 251; Cargile v. Wood, 63 Mo. 501; Foster | terchanged the requisite matrimonial consent. v. Hawley, 8 Hun, 68; Bicking's App. Brewst. 202; Purcell v. Purcell, 4 Ilen. & M. 512; Brinkley v. Brinkley, 50 N. Y. 197, 198; Hynes v. McDermott, 10 Daly, 428, 82 N. Y. 46, 91 N. Y. 451, Badger v. Badger, 88 N. Y. 554; Van Tuyl v. Van Tuyl, 57 Larb. 237; Rose v. Clark, 8 Paige, 580--582.

The opinions in the cases above referred to were examined in Campbell v. Campbell (known as the "Breadalbane Case") L. R. 1 II. L. Sc. 182, and the language of the opinions in them explained; and the conclusion there reached was that, though the connection was in its beginning illicit, yet the subsequent conduct of the parties might be such as to give satisfactory proof, by habit and repute, that the married status had been assumed. There, eminent law lords discussed the question, and reached the conclusion above stated.

That a marriage in this State may be established per verba in præsenti, or by a contract per verba de futuro, cum subsequente copula, was recognized in Estate of McCausland. 52 Cal. 577. The coutract characterized as entered into per verba de futuro is only evidence of marriage as proving the requisite matrimonial consent. Such consent is essential to every marriage (1 Fraser, Husb. and W. 415); and, prior to the adoption of the Civil Code in this State, consent alone constituted marriage. The law at that time was correctly expressed by the Latin words, "consensus non concubitus facit nup-arose as to the legitimacy of a son of James tias." As cohabitation and repute are only a mode of proving the required consent, and thus establishing marriage, there is no reason why the rules above stated regarding cohabitation and repute did not obtain in this State during the greater part of the period of the cohabitation of the parties to this action.

In the Breada bane Case the controversy

Campbell, who eloped with the wife of one Ludlow in 1780 or 1781. Ludlow died in 1784 Up to that time no marriage could take place. Tue court held that the evidence proved that after that time, and during the life of James Campbell, the habit and repute was all uniform and undivided, and established a mar riage between Campbell and the former wife of Ludlow.

The evidence in this case plainly shows, and it is so found, that the intercourse between the parties was in its beginning illicit and mere- The change must be such as is above pointed tricious, and it is contended (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 distinct to the marriage. There was none in this case, proof of marriage; and (2) that mere continued cohabitation and reputation of marriage create no presumption of a subsequent marriage in such case. With regard to this contention, we think it may be considered as sound and settled law that as regards the cohabitation of a man and woman, not shown to have been in its origin illicit, the presumption is that it is lawful. Per Lord Eldon in Cunningham v. Cunningham, 2 Dow, P. C. 482; per Lord Redesdale in

same case.

nor in the Balbougie Case. In the case before us, as in the albugie, there was merely illicit cohabitation. Surely there must be change from mere illicit cohabitation, or marriage cannot be said to be proved, since illicit cohabitation cannot establish a marriage. There must be a change operated by a cohabitation which the law regards as licit; and such change may be operated by cohabitation and reputation.

In the case of Lapsley v. Grierson, and in the Breadalbane Case, where the connection began, one of the parties, the woman, had a husband living. In the Breadalbane Case, the

The law always presumes, in the absence of proof to the contrary, that the conduct of men is lawful, and in accordance with the rules of morality. Lapsley v. Grierson, 1 II. L. Cas.marriage was not contended for during the life498.

time of Ludlow, the husband. He died in 1781, But when the intercourse was illicit from the and the parties continued to cohabit from that beginning, in the absence of evidence from time until the death of James Campbell in which a change to the matrimonial relation 1806; and during this 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 doubtedly from 1793 to 1806, the woman, Eliza continue until the evidence shows that the in- Marie Blanchard, was received and treated as tercourse of the parties has become matrimonial. his wife by his family 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. | Breadalbane Case tending to show that there Cunningham (known as the "Balbougie Case"), | had been a formal marriage celebrated in 1781 above cited. No greater change than that above or 1782, and some evidence that Eliza Marie indicated is required. There are some expressions in opinions in the cases of Cunningham v. Cunningham and Lapsley v. Grierson, which seem to go further. But on a particular examination of the above cases it is manifest that the learned court that decided those cases did not intend to hold that in the case where the intercourse in its inception was illicit, that that circumstance prevented the establishment of the marriage status by the subsequent conduct of the parties, showing a general, undivided and uniform habit and repute that they had in

Blanchard was recognized by Campbell's family as his wife; and it was in regard to this it was argued that there was a change. It was said that Campbell was deceiving his family and friends by passing the woman off as being his wife, and leading his relatives and friends to believe that she was his wife. It was said that this system of deception continued during the entire period of the cohabitation of Campbell with the woman; and on this it was argued that, as there was no change in this system of deception, there was no evidence which operated

It is a disputed question whether the presumption here referred to is one of law or fact. The decisions leave it in doubt,

In Cargile v. Wood, 63 Mo. 511-514, an instruction in which it was stated that the presumption was one of law was approved.

In State v. Worthingham, 23 Minn. 526, it is held not to be presumption of law, but one of fact. We find but one case (Cargile v. Wood, supra) where it is held distinctly a presumption of law.

Bishop, in his work on Marriage and Divorce, says it is a presumption of fact. See 1 Bishop, Mar. and Div. §§ 506, 507a, 509, 513.

Certainly a condition of things once existing is presumed to continue. Eames v. Eames, 41 N. H. 177.

a change, and showed cohabitation and repute, | Barnum, 42 Md. 297; Foster v. Hawley, 8 Hun and therefore no marriage was proven. It was 68; per Lord Campbell in Reg. v. Millis, 10 Clark in thus regarding the 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 connection from adulterous to matrimonial need not be indicated by any public act or by any observable change in the outward demonstration. It cannot be seen how such a proposition can be true, unless the public acts and outward demonstrations were the same before as after the removal of the impediment to the marriage by the death of Ludlow. If the conduct of the parties, and their treatment and reception by their friends and relatives, had been such before the death of Ludlow as would, but for Ludlow's being alive, have shown a sufficient habit and repute to evidence marriage, the continuance without change of the same conduct, reception and treatment after Ludlow had died might also prove a marriage between the parties. In this view, what is stated in the head note is correct, and only in this view; for, if the conduct and treatment and reception of the parties before the death of Ludlow had not shown cohabitation and re pute, then necessarily, after Ludlow's death, there must have been a change in the conduct, treatment and reception of the parties to have evidenced a cohabitation and repute which would establish a marriage. We do not think that the court laid down the proposition announced in the head note above referred to; for the opinions of the judges do show that there were public acts and outward demonstrations of parties from which habit and repute could have been inferred. This is plain from the Lord Chancellor's opinion; for after saying that, taking the rule to be settled by the case of Cunningham v. Cunningham that an illicit connection at the beginning can only be changed in character by some undoubted and open act of the parties, he proceeds to consider whether the circumstances of the case before him were not sufficient to establish a marriage between James Campbell and Eliza Marie Blanchard, and concludes that they did. To the same effect is the argument of the other learned judges, Lords Cranworth and Westbury. That they do find in the evidence uncontra dicted and open acts of the parties which show cohabitation and repute, and a marriage, will be plainly seen on a perusal of the discussions of the evidence in the case by the learned law lords. It cannot be perceived how repute can be established in such a case, except by the open, undisguised and undoubted acts of the parties which are visible to outsiders. As reputation is no more than hearsay derived from those who had means of knowing the fact (1 Starkie, Ev. 4th ed. p. 40) how can the means of knowledge be derived from anything other than the acts of the parties, and how can anything be known by others from the acts of the parties, unless they are open and visible?

There are many cases in which it is held that, when the connection between the parties is illicit, the presumption will be that the relation continues as it began. Floyd v. Calvert, 53 Miss. 40, 46; Rundle v. Pegram, 49 Miss. 756; Badger. Badger, 88 N. Y. 546; Barnum v.

The distinction between a presumption of law and one of fact, or an inference from facts (Code Civ. Proc. § 1958), is sometimes very thin; but, treating the question arising on the testimony here as one of fact, it is both logical and just to hold that a connection, illicit in its origin, will be presumed to continue to be so until some change is established by evidence. Whatever be the character of the presumption, "it cedes to a contrary probation." In fact it is not necessary to decide here whether the presumption is one of law or of fact, for in either case it is rebuttable. We think it may be safely held that the law will presume intercourse from cohabitation, and, where the illicit cohabitation continues, that the law will presume illicit intercourse. It seems to be well settled that the repute which, with cohabitation, will be proof of marriage, must be uniform and general, not divided and singular. Cunningham v. Cunningham, 2 Dow, P. C. 482; Jones v. Hunter, 2 La. Ann. 254; Hamilton v. Hamilton, 1 Bell, App. Cas. 736, 9 Clark & F. 327; Com. v. Stump, 53 Pa. 132; Barnum v. Barnum, 42 Md. 297.

If repute lacks uniformity and is divided, then such repute cannot prove a marriage. Let us look to the evidence here on this matter of repute. It should be stated here that a change from illicit to licit or matrimonial relations may occur, and be satisfactorily established, although the precise time or occasion cannot be clearly ascertained. Badger v. Badger, 88 N. Y. 554; Caujoile v. Ferrie, 23 N. Y. 90.

Such seems to have been the opinion of the judges who decided the Breadalbane Case.

We proceed to the consideration of the evidence of this case.

The testimony shows that the connection between the plaintiff and defendant began in 1850. The parties were then living on the San Geronimo Ranch, in Marin County. The defendant came from that place to San Francisco in July, 1850, where defendant met plaintiff, and, after an acquaintance of not more than a week be engaged her to go and live with him on the ranch as housekeeper. She was a young widow with one child, and had come to San Francisco from Australia. The defendant was about the same age. She went over to the

1856 shows a divided repute; the evidence that plaintiff was the mistress of defendant, and not his wife, greatly preponderating. This_appears from the testimony of Dickenson, Taylor, Curran, Clingan and Moulthrop. The evidence of the witnesses above mentioned is all one way as to the repute during the period just mentioned. The only contrary evidence, which is of small consequence, comes from the witness Clingan, that the women around Corte Madera called her Mrs. White. There was no other repute than the above during the time they lived in Marin County, from which they removed to Mendocino County in the spring of 1858, at which time they went to Long Ridge, in that county. From this place they removed to Albion, in the same county, in September or October, 1861, where they remained until Oc tober 1868, when, in the month just named, they came to San Francisco, and have resided there together until August, 1882, when the defendant quit living with plaintiff. After the parties removed to Long Ridge, in the spring of 1868, we hear nothing of any reputation that they were living together as man and mistress.

ranch with him in the month mentioned above. I to the period extending from 1850 to 1855 or The house occupied by the parties there had two rooms, one of which was used as a kitchen. The defendant slept in the kitchen, and the other room was given up to plaintiff. The illicit intercourse commenced within a week after plaintiff reached the ranch, and continued for a period which cannot be definitely designated. In 1882 the defendant quit living with plaintiff. In 1851 a child, the fruit of the intercourse of the parties, was born. Another was born in 1853. A third child was born at Corte Madera, in Marin County, and a fourth at Petaluma in January, 1859. The plaintiff testifies that she was his wife from the beginning; that after the birth of the first child plaintiff said to her that before God and man she was his wife, under the laws of California. Defendant denies that he ever said so. There was never any formal ceremonial marriage between them. In a dep osition, which appears in the record, the following question was put to her by counsel for defendant: "Then, what I understand you to say is that the way that you became his wife was by sleeping with him and being called wife by him in the presence of others?" to which she answered: "Yes, sir." She subsequently added to this: "In society, what little we go, he has always called me his wife." She states that White introduced her to his accquaintances as his wife. Defendant admits that he did at times, after the birth of his daughter Nellie, in 1856, introduce her as his wife. That he did so when he found himself in a position that he bad to say something. When she was with him, and he had to say something for the protection of his children, he had introduced her as his wife. That he sought no opportunity to do so, and had not gone into society with her. The plaintiff states that he introduced her to his father and mother as his wife. Defendant testified that he made them acquainted someway, he could not tell how; that he treated plaintiff well; that they were living together and left his parents to infer the relation between them.

Mrs. B. F. White, mother of defendant, testified on this point. She and her husband (father of defendant) came to this State from New York at defendant's expers. They lived in defendant's home for some months when he kept a hotel at Albion, in Mendocino County, arriving there in 1866. A daughter came with them. The mother testinies that the defendant introduced plaintiff as "the madam," and that she supposed that she was his wife, and treated her as his wife. The daughter (defendant's sister) testifies substantially to the same effect. She does not remember who introduced her to the plaintiff, or how she was introduced. She supposed plaintiff was his wife; that they lived together as husband and wife; and she further states that the plaintiff was received and treated by her father and mother and her relatives as the wife of defendant. She further states that she did not remember that she ever heard defendant address plaintiff as his wife. He addressed her as "Jane" "or Madam." This evidence shows that he sometimes called her "wife."

On the point whether the parties were reputed to be husband and wife during the period of their connection, the evidence in regard

We rarely collate the evidence in regard to its sufficiency to justify the decision, but we propose to do so in this case, by giving the substance of the testimony of each witness bearing on the point.

A W. McPherson knew the parties as Mr. and Mrs. White from 1861. They addressed each other as Mr. and Mrs. White. They were introduced to him as Mr. and Mrs. White.

II. H. Hundley has known the parties since 1866. They were commonly known as Mr. and Mrs. White. Has known the children during the same period by the names William White and Nellie White.

Patrick Cleary has known the parties since 1862. Recollects one time they visited his family. May have visited his family other times. When they made this visit be lived in the city, and they lived at Albion. He visited them as Mr. and Mrs. White. They behaved towards each other as any other man and wife behaved. Never heard anything to the contrary, except a rumor about two years ago. (This would be about the time of the separation of the parties, which was in August, 1882. The witness gave his evidence at the trial, which took place in December, 1884 )

Thomas Pollard has known defendant about twenty years, and plaintiff fourteen or fifteen years. They are known as Mr. and Mrs. White. Have known the children about fourteen years. They go by the name of White. He was asked to state to the court how the plaintiff and defendant have been commonly reputed, -as husband and wife, or otherwise; to which his reply was: "I never knew any thing to the contrary till recently." This witness stated that he lived with his family in this city, right across from White; that White never took plaintiff to visit his (witness') family at his house; that he bas "no direct knowledge of White's ever taking her into any company to visit the neighbors, or anything of the sort." George M. Smith stated that he had known White since 1861. Had known the plaintiff since 1862 or 1863. Knew them as Mr. and

Mrs. White. They had two children. He knew them by the James Nellie and Willie White. Has heard defendant address plaintiff as "Madam." Could not swear that he had beard White call her "wife" or "Mrs. White" in speaking to or of her.

The next witness was Mrs. Smith, the wife of the former witness. She met the plaintif about twenty years ago (this testimony was given on the trial, in December, 181), and Mr. White about twenty-two or twenty-three years ago. She met them at Albion, in Mendocino County. She lived near them. Knew the children Nellie and Willie. Sometimes sho had seen plaintiff and defendant half a dozen times a day,-sometimes more; sometimes less. So far as she knew, they were known at Al bion as Mr. and Mrs. White. She had heard the defendant call the plaintiff "the madam," "my wife" and "Jane." She was not very sure of any particular instance when she heard defendant call plaintiff his wife. She was very positive she had heard White call plaintiff his wife, and more than once, and this in address ing ber.

Was

always judged from their conversation that they were man and wife. He and his wife had visited their house together. They always appeared like a family living in harmony.

Miss Annie Manning had known the parties about four years. She thinks they acted towards each other as husband and wife. They acted towards their children as a father and mother should.

Jerome B. Ford became acquainted with defendant at Albion some time between 1955 and 1865. Was at the hotel in Albion frequently. IIad never been introduced to Mrs. White, and never spoke to her. They were said to be then Mr. and Mrs. White,-L. E. White and wife. Had known the parties four years next March. Mr. White used to speak to plaintiff as any man would to his wife. Could not say what name he called Ler.

B. H. Madison testified that he had known Mr. White ten or twelve years. Had visited the house several times on business, and thinks honce made a social call with his wife and el lest daughter. Both White and plaintiff were present. He called her Mrs. White in the

James Brett had beard defendant speak of plaintiff as his wife. His (witness') wife addressed plaintiff in presence of defendant as his wife.

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 plaintiff since 1866. Became ac quainted with her at her brother's (White's house, in Albion, when he was keeping the hotel there. She was introduced to her. Can not tell how she was introduced to her. introduced by her brother. He usually ad dressed her as "Jane," and in speaking of her be called her "Madam;" and, in speaking to the children, "your mother." She does not remember that her brother introduced plaintifl to her as bis wife. Does not remember that he told her she was his wife. Iler understanding was that she supposed she (plaintiff) was his wife. They lived as husband and wife. She and her father and mother lived in the house with them eight mouths. She testifies further that plaintiff was received and trea ed by her father and mother (father and mother of de fendant also) and their relatives as the wife of defendant. She does not remember hearing her brother speak of plaintiff as Mrs. White. She thought it a little peculiar that he addressed her as "Jaue" or "Madam." She does not know that she spoke of it wle living at the hotel. While they lived there they re garded her as White's wife.

Mrs. W. L. Jenny testified that she had krown the parties nineteen or twenty years. She was introduced to plaintiff by a lady named Cunningham. Mr. White was nt present. White never introduced plaintiff to ber. He always called her "the madam." Knew the children. They went by the names of Nellie White and Willie White. She had not been to their house for twenty years. Be fore that, used to call there once in a while. Have taken dinner there a good many times. Mr. White was present. The witness was a married woman. She always thought the parties acted towards each other as husband and wife. She never heard him call her "wife." The children addressed Mr. White and the plaintiff as their father and mother.

George W. Le Mont had known the parties some ten or twelve or fourteen years. Had frequently taken lunch at White's house. He

James Kenny had known the parties for twenty-five or twenty-six years. IIad known them at Cuffey's Cove. He believed they had ived on a ranch there for five or six years as Mr. and Mrs. White. He was on friendly and social terms with them during their residence at Cuffey's Cove. The reputation of their relation while they resided there was that of man and wife, so far as he ever heard. He first called at defendant's house. Then Mr. White introduced her; "but not sure defendant was accustomed to speak to me and to others in my presence of plaintiff as Mrs. White. If I remember right, defendant introduced me to plaintiff as his wife;" but he has no distinct recollection of the introducing. While the parties lived at Cuffey's Cove, heard a rumor that they were not married.

Eugene Brown bad known defendant a little over twenty years, the plaintiff a little less, while they resided in Mendocino County. He knew the reputation in the community in which the parties lived of the relation they bore to each other since he first knew them, and up to the time he gave his testimony. The reputation was that they lived together as married people in Mendocino County, and bad never heard anything to the contrary until this divorce case came up. He did not think he had contounded his imi ression of the facts with public reputation thereof. Heard her called his wife once or twice in Mendocino County. Had heard her called Mrs. White frequently, but does not distinctly remember of hearing ber called Mrs. Winte at The Albion. He could not remember who of the people at The Albion he had heard say that plaintiff and defendant were husband and wife.

Mark D. Gray testified that he saw plaintiff at The Albion once in 1577. Defendant introduced plaintiff as "the madam."

There is evidence here, at least since 1861,