(17 R. I. 720)

ODD FELLOWS' BEN. Ass'N OF RHODE ISLAND V. CARPENTER et al. (Supreme Court of Rhode Island. May 28, 1892.) PROOF OF MARRIAGE COMMON-LAW MARRIAGE

EVIDENCE.

1. In proof of a ceremonial marriage, the marriage certificate, or the record of evidence, or a witness thereof, must be produced.

2. Cohabitation for about five months between a man and a woman who was keeping house for him, without proof of when it commenced, and the fact that he recognized her in his will as his wife, are not sufficient proof of reputation of their being husband and wife to support a common-law marriage, in view of the man's contradictory statements in that respect, and of a serious misunderstanding having arisen between him and his children from his relations with the woman.

Interpleader between the Odd Fellows' Beneficial Association of Rhode Island, complainant, and Maria H. Carpenter and others, the children of John A. Carpenter, respondents, in which Maria H. Carpenter claims to be the widow of John A. Carpenter. Judgment against her

claim.

Ziba 0. Slocum, for complainant. Charles C. Mumford, for respondent Maria H. Carpenter. Charles E. Gorman and James T. Egan, for respondents the children of John A. Carpenter.

TILLINGHAST, J. The respondent Maria H. Carpenter claims that she is the widow of John A. Carpenter, deceased, and as such is entitled to the fund in dispute; and the only issue of fact submitted to the court at the trial was whether she was his widow. In support of her claim, she testified that she kept house for the deceased from October, 1888, till February, 1890; that her first husband died in Decem ber, 1888; that she and the deceased shortly afterwards agreed to be married to each other, and in pursuance thereof, on the 13th of February, 1889, went to Fall River, Mass., where a ceremonial marriage was solemnized by a clergyman authorized to solemnize marriages, or before a person who was represented by the deceased to be so authorized, and whom she believed was so authorized. She did not produce any certificate of marriage, or any record evidence thereof, or any witness to the same. She could not give the name of the clergyman who performed the ceremony, nor could she tell upon what street or in what part of said city he resided. She further testified that after said marriage she continued to live with the deceased as his wife till his death, which occurred on August 3, 1889. Evidence was also offered that the deceased, on one or more occasions, spoke of the respondent as his wife,-one witness testifying that he introduced her to him as such,-and also that they lived together, for a short time before the death of said John, apparently as husband and wife. It further appeared that the deceased made a will in which he referred to the respondent as his wife, and bequeathed to her all of his property, and constituted her his sole executrix. the other hand, the respondents the children of the said John A. Carpenter of fered evidence to the effect, that in March,

On

1889, the deceased stated to one of the complainant's officers that he had no wife and that, on being visited during his illness in the same month by a member of the order, he spoke of the respondent as "Maria, a woman that keeps house for me;" also that the deceased on one occasion, upon being told that it was reported that he was married, replied that “You mustn't believe everything

you hear." Upon this state of the proof, the court was not satisfied that any ceremonial marriage between the deceased and the respondentever took place, and so decided. The respondent now contends that notwithstanding her failure to prove a ceremonial marriage, as set up by her, yet that she has proved a common-law marriage, known as a marriage per verba de presenti, and hence that she is the widow of said John A. Carpenter, and entitled to said fund. The question as to the validity of such a marriage has not been decided by this court, nor do we find it necessary to decide it in this case; for even assuming that such a marriage is valid in this state, yet we are not satisfied that the proof submitted establishes the existence thereof. Leaving out of account the testimony of the respondent as to a ceremonial marriage which has already been passed upon by the court, there remains the evidence that, being a married woman, she lived with the deceased as his housekeeper from October, 1888, till the death of her husband in December, 1888, and that thereafterwards, and until August 3, 1889, she continued to live with the deceased in some capacity; that to two or three persons he introduced her or spoke of her as his wife, while, to others he denied that he had a wife, and spoke of her as his housekeeper; and, finally, that he referred to her in his will dated July 19, 1889, as his wife, making her his sole legatee and executrix. This evidence, taken as a whole, and considered as favorably in behalf of the respondent as the circumstances will permit, shows the fact of cohabitation between the parties for a period of about five months, contradictory statements made by the deceased as to whether the respondent was his wife, and a will made by him, in which he recognizes her as his wife. We do not feel that, upon such proof as this, we should be warranted in holding that even a common-law marriage was established. In order to constitute a marriage per verba de presenti, the parties must agree to become husband and wife presently. The consent, which is the foundation and essence of the contract, must be mutual, and given at the same time; and it must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, as that it be publicly solemnized. That is to say, it must contemplate a present assumption of the marriage status, in distinction from a mere future union. Lord BROUGH

1(1) See opinion of COLT, J., in Mathewson v. Foundry, 20 Fed. Rep. 281, as to the validity of a common-law marriage in this state.

(2) By a rescript filed at the April term, A. D. 1891, the court found that a ceremonial marriage had not taken place.

when his case might be called before he could go and return, but his presence here was proper and necessary to arrange for the reassignment, which bad become requisite without fault on his part. Until such assignment under these facts, he was, and was required to be, "in attendance" upon the court, in the strict sense of the term, because the case was neither continued nor definitely postponed. It was in order, and, until reassigned, liable to be called at any time when the petitioner could come into court. His arrest on the writ in this case was therefore in violation of his privilege as a party attending court. In Waterman v. Merritt, 7 R. I. 345, 347, the court said that a party or witness residing within the jurisdiction is so far within the protection of the court, without any special order, that in coming to, remaining at, and returning from the court where his attendance is rendered necessary to the administration of justice, he would be exempt from arrest and all restraint of his person, and, if arrested, would be discharged from such arrest; but would not be protected from the service of any process which did not interfere with or prevent his personal at. tendance, as by summons; neither would he be discharged of the suit, though arrested. As to one coming from without the state, the court said he would also be discharged from the arrest, even without the protection of a special order of the court. In that case there had been a special order of protection from all civil process, and hence, although the process issued was a writ of summons, the action was dismissed. We think the doctrine thus laid down has since been understood to be the law of this state; and in the recent cases of Baldwin v. Emerson, 16 R. I. 304, 15 Atl. Rep. 83, and Capwell v. Sipe. Index I. I. 112, 23 Atl. Rep. 14, it has been followed to the extent of holding that a suitor, attending court in the matter of his suit, is not exempt from the service of a writ of summons. The reason for this is that such a service, amounting simply to a notice, does not obstruct the administration of justice, nor interfere with the attendance or attention of a party to the suit then on trial. The same result follows when an arrest is discharged, and the suit is allowed to stand as though it had been commenced by summons. There are recent cases in the federal courts to the effect that if the arrest is illegal the suit is absolutely discharged. An instructive review of this question will be found in the opinion of Judge COLT in Larned v. Griffin, 12 Fed. Rep. 590, which holds that the immunity of the privilege extends to all kinds of civil process, and affords absolute protection. To the same effect are Plimpton v. Winslow, 9 Fed. Rep. 365, and Atchison v. Morris, 11 Fed. Rep. 582, where a subpœna in equity and a civil summons were set aside as a violation of privilege. But even the dictum of a court which has come to be understood as the law of the state should not be lightly disturbed, and, as the rule stated in Waterman v. Merritt is not unreasonably and is in line with the recent decisions of this court, we feel constrained

to follow it. Under this rule the suit may stand, and the motion to dismiss must be denied; but the motion to discharge the bail must be granted.

Objection is made that the matter of these motions can only be taken advantage of by a plea in abatement. The practice of this court has allowed procedure in both ways. In Waterman v. Merritt, supra, and Corey v. Miller, 12 R. I. 337, it was by motion. In Hoppin v. Jenckes, 8 R. I. 453; Baldwin v. Emerson, supra; and Capwell v. Sipe, supra,—it was by plea. If the suit is to stand, and the arrest only is to be discharged, it must be done by motion, for a plea in abatement of the suit cannot be sustained. The relief to be sought must necessarily be summary. If it were to await the decision of a plea in abatement to be filed at the term to which the writ of arrest is returnable, it might come too late. All the mischief might then be accomplished. It is a question of policy, affecting the administration of justice. Public policy does not require that the suit should be abated. The course of justice in a trial may be affected by an immediate discharge of a party or witness from arrest, but it can hardly be so affected by the subsequent abate. ment of a suit in which an arrest has been made. Upon this ground it was held in Booraem v. Wheeler, 12 Vt. 311, that the arrest of a defendant was no cause for abating a writ. He has full notice of the institution of the suit; it may have been commenced in good faith, without knowledge of his attendance upon court. The relief by discharge is summary, and so the subsequent abatement of the suit seems to be useless. The purpose of a writ of summons is subserved by the notice of the suit, and the privilege is not from the bringing of the suit but from the arrest. If it be said that there is no valid service of process in case of the discharge from arrest, and that for this reason the suit should abate, it is to be considered that the uniform doctrine is that the process is regular, and the arrest is not void, but voidable. A defendant may waive his privilege, and go on to defend the suit without asking for a discharge. The jurisdiction is complete. At common law, as appears from the history of the procedure in this class of cases, the suit did not abate. Judge REEVE in King v. Coit, 4 Day, 129, gives this account of it: "When a member of parliament was arrested, the ancient practice was to obtain a writ of privilege to be discharged, not from the suit, but from the arrest, and a supersedeas issued to the court to stay proceedings as long as the privilege of parliament lasted. A more summary mode was afterwards introduced of obtaining a discharge by motion; but it was not from the suit, but from the arrest; and so it was expressly laid down in the case of Pitt, Comyn, 444, Fortes. 342, Cas. t. Hardw. 28; and that it must be on filing common bail. But this, as appears from the report of the case just cited in 2 Strange 985, [Holiday v. Pitt,] was ordered to be struck out, as it would seem to warrant the arrest in some measure." Substantially the same account is given by

DE GREY, C. J., in Cameron v. Lightfoot, | 2 W. Bl. 1190, which was an action for the false imprisonment of a privileged suitor. Common bail consisted in entering the names of fictitious sureties, as John Doe and Richard Roe, which was held to be equivalent to an appearance. | But this was not always required as may, be seen by comparing the case of Cameron v. Lightfoot with its counterpart, Lightfoot v. Cameron, 2 W. Bl. 1113. This formal and fictitious proceeding is not in use in this country, and hence, after the arrest is discharged, the suit is left, as at common law, like a suit commenced by summons, for answer or default, as the defendant may elect.

If he makes answer, the case will proceed to trial; if not, judgment may be taken by default, under Pub. St. R. I. c. 212, § 2;1 he having had personal notice of the pendency of the suit under a regular process, upon which he has simply been discharged from arrest upon grounds of public policy. The consideration that a suitor may be deterred from coming to this state by the fear of another action against him will lie with equal force to the service of a summons as to the nonabatement of a suit, after a discharge from arrest by reason of his privilege. It may not be strictly technical or logical to hold that there has been any service of the writ when the arrest has been discharged; nevertheless it is in accordance with ancient practice and the rule laid down in this state. The same course is followed in a discharge from arrest, when the affidavit attached to the writ is untrue, under Pub. St. c. 206, § 9.2 The statute provides that the suit shall not abate; and, doubtless, this was not considered to be a new stretch of legislative authority, but the application of an expressed and existing rule in an analogous case. Certainly the reason for abatement is stronger when the plaintiff bas procured an arrest on a false affidavit than in the case at bar.

If, under this rule, a designing plaintiff seeks to embarrass a defendant by taking the chance of an illegal arrest, knowing that his suit will stand, even if the arrest be discharged, it is enough to say that the bringing of the suit violates no natural right of the defendant that he may obtain full immunity by a writ of protection; and, when it appears that the plaintiff has willfully contrived to obstruct the administration of justice by means of the arrest, he may be punished for contempt of court, as in the case of In re Healey, 53

1As follows: "Sec. 2. The defendant shall file his plea or answer with the clerk six days before the sitting of the court, or judgment shall pass against him as for a default."

"As follows: "Provided, that whenever an arrest shall be made in accordance with the third clause of this section, the court to which the writ is made returnable, or any justice thereof, may by order, upon application of any defendant so arrested, and for cause shown upon hearing the parties therein, release such defendant from such arrest, and discharge the bail, if any, taken thereon; but said writ shall not be abated on account of such release and discharge, but may be prosecuted to final judgment in the same manner as if no such release and discharge had been granted."

(Supreme Judicial Court of Maine. Dec. 9, 1891.)

MORTGAGE-FORECLOSURE-CERTIFICATE OF ADVERTISEMENT-DISCHARGE.

1. The attempted foreclosure of a mortgage of land by publication, under Rev. St. c. 90, § 5, is fatally defective if the certificate recites that the notice was given in a newspaper "published, instead of "printed," in the county where the premises are situated. It is also defective unless the "date of the newspaper in which the notice was last published" was recorded.

2. A mortgage and note secured thereby were to become void either by payment of the note, or, "if the said mortgagee should die before the note is paid, then this deed and note are null and void." Held, that the mortgage became void upon the death of the mortgagee before payment of the note.

(Official.)

Report from supreme judicial court, Waldo county.

Writ of entry by Mary Hollis against Edmund S. Hollis.

The following are the conditions stated in the mortgage, making a part of the tenant's title:

"Provided, nevertheless, that if the said Reuel A. Hollis, his heirs, executors, or administrators, pay to the said Susan Rand, her heirs, executors, administrators, or assigns, the sum of three hundred and fifty dollars, for which the said Reuel A Hollis has given the said Susan Rand his note on demand, with interest: Now, if the said Susan Rand should die before this note is paid, then this deed & note are null and void, and the said Susan Rand is never to transfer this deed; then this deed, as also a certain note bearing even date with these presents, given by the said Reuel A. Hollis to the said Susan Rand to pay the sum and interest at the time aforesaid, shall both be void, otherwise shall remain in full force."

The words printed in italics are written in said mortgage with a pen.

R. F. Dunton and F. W. Brown, for plaintiff. W. P. Thompson, for defendant.

VIRGIN, J. Writ of entry. The question is which of the parties has the better title. Both parties claim under Susan Rand.

The demandant's title. On May 21, 1875, Susan Rand, by her deed of warranty, conveyed the demanded premises to her son Reuel, who on the same day mortgaged back to her the same premises to secure his promissory note of the same date, for $350, payable on demand, with interest.

On June 26, 1876, Reuel quitclaimed his title to one Grant, who, on March 3, 1877, quitclaimed his interest to the demandant.

The defendant claims title through an alleged foreclosure of the mortgage by Reuel to his mother, of May 21, 1875, and the probated will of the mortgagee, (Su

san Rand,) wherein the use and possession of all her real estate was given to the defendant and his wife during their natural lives.

The condition in the mortgage is somewhat peculiar. It consists of the mention of two distinct events, by the happening of either of which the note and mortgage were both to become void. One-usually found in the printed form-that on the payment of the note at the time mentioned therein the note and mortgage "both to become void; " and the other (written in the blank space between the clauses of the former) in these words: "Now, if the said Susan Rand should die before this note is paid, then this deed and note are null and void, and the said Susan Rand is never to transfer this deed."

The intention of the mother and son, as disclosed by the language of the condition, seems to have been that the son was to pay the note in full unless his mother died before that event happened, and if she died before, then the note, or the balance remaining then unpaid, should be considered as forgiven.

It appears that the note was not fully paid in December, 1875, and the mother attempted to foreclose the nortgage by publishing notice in accordance with Rev. St. c. 90, § 5. But the certificate is fatally defective in two particulars: It states that the notice was given in a newspaper 'published," instead of "printed," in the county, as the statute requires. Blake v. Dennett, 49 Me. 102; Bragdon v. Hatch, 77 Me. 433, 1 Atl. Rep. 140. It fails to show that the date of the newspaper in which the notice was last published was recorded. Rev. St. c. 90, § 5.

The will does not mention the mortgage on the land mentioned in it, and the testator was estopped to transfer the mortgage by its express terms.

Moreover, the mother having deceased in March, 1889, the mortgage then became void.

The demandant's claim under the warranty deed of Susan Rand shows better title than the mere possession of the defendant.

Judgment for demandant.

PETERS, C. J., and LIBBEY, EMERY, FOSTER, and WHITEHOUSE, JJ., concurred. (84 Me. 92)

WOODBRIDGE V. TILTON. (Supreme Judicial Court of Maine. Dec. 8, 1891.)

ADMINISTRATION-ACTION AGAINST ESTATE-PLENE

ADMINISTRAVIT.

In an action against an intestate estate in the hands of an administratrix de bonis non, the defense that the unadministered assets which came into her hands from her predecessors were exhausted in discharge of the preferred debts must be sustained, if at all, by regular probate proceedings.

(Official.)

Appeal from supreme judicial court, Somerset county.

Action by Corisand W. Woodbridge, administratrix of Charles Woodbridge, deceased, against Eunice S. Tilton, adminis

tratrix of Freeman Tilton, deccased, to

recover on a note.

D. D. Stewart, for plaintiff. Merrill & Coffin, for defendant.

VIRGIN, J. Assumpsit on a joint and several promissory note, dated January 22, 1880, given by W. T. Pettigrove and Freeman Tilton to Charles Woodbridge, for $250, payable on demand, and interest at 8 per cent. The plaintiff is administratrix on the estate of the payee of the note; and the defendant is the widow and administratrix de bonis non on the estate of Freeman Tilton, one of the makers.

In addition to the general issue, the defendant pleaded, by way of brief statement, plene administravit; and the case comes up on report.

Documentary evidence from the probate court, chronologically stated, shows the following facts:

On December 14, 1887, one Charles E. Tilton was duly appointed and qualified administrator on the estate of Freeman Tilton, of which due notice was given.

At the January term, 1888, the defendant filed her petition for an allowance, alleging therein that "there are no debts, and that her husband died solvent."

At the February term, 1888, Charles E. Tilton, administrator, returned an inventory which showed goods and chattels valued at $12.50, and three promissory notes due the estate, one for $144.08, one for $34.18, and the other for $145, and cash $3, all amounting to $338.76.

At the July term, 1888, Charles E. Tilton, administrator, having died, the defendant was duly appointed and qualified administratrix de bouis non on the estate of her husband, of which notice was duly given: but no inventory was ever returned by her.

At the August term, 1888, Charles E. Tilton having died, his first and final account of administration was duly settled by Relief G. Tilton, administrator on his estate, by which it appears that after payment of expenses of his administration of the estate of Freeman Tilton, a balance of $298.76 was found against her intestate as administrator, which was turned over to the defendant administratrix de bonis non. This balance consisted, as she testified, of the two larger notes mentioned in the inventory returned by Charles E. Tilton, herein before stated, and which remained uncollected.

At the November term, 1888, after due notice on the defendant's petition for allowance filed at the previous January term, the judge of probate made the following summary decree: "That there be allowed to said widow, out of the personal estate of said deceased, all that remains after paying thirty dollars for gravestones and the expenses of administration."

The defendant, as administratrix de bonis non, is subject to the responsibilities of the original representative of her husband's estate with respect to the estate left unadministered by him. Schouler, Ex'rs, § 409. The two larger notes described in her predecessor's inventory, remaining uncollected, and hence unadmin.