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

words of Lord Tenterden in a capital case long ago GUNPOWDER. --Fireworks are not“

“gunpowder. and has been frequently used by judges since. See Tischler v. California Farmers' Mut. Ins. Co., Cali- 3 Greenl. Ev. (13th ed.), $ 29 n. Of this definition fornia Supreme Court, November, 1884. The court Mr. Bishop, in section of Criminal Procedure before said: “It remains to be considered whether the fire- cited, says: “If there were no doubt of its accuracy, works kept by the plaintiff rendered void the policy it might in some circumstances, to some minds, be under that provision of it prohibing the keeping or helpful; yet on the whole it is less clear than the use on the premises of 'gunpowder.' Defendant phrase it would explain.' But its correctness is deintroduced no testimony tending to show of what nied by five or six of the State courts. Still it has the fireworks were composed. They may be com- | been approved by as many other courts.

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

into judicial use. The rule of reasonable doubt was REASONABLE DOUBT.-In State v. Rounds, 76 Me. itself settled upon to rid the law of a great variety 123, it is said: "Mr. Bishop (1 Crim. Proc., $ 1094) of loose and confused definitions and phrases which says: “There are no words plainer than reasonable had been from time to time adopted by different doubt, and none

80 exact to the idea meant. judges to express the judicial idea." Hence some judges, it would seem, wisely decline

PLYING.-A vessel never in the State except ocattempting to interpret them to the jury. Negative casionally to receive or discharge cargo, is not “plydescriptions may be safe, and perhaps helpful; as ing in waters of the State.” City and County of that it is not a whimsical or vague doubt or con

San Francisco v. Talbot, 63 Cal. 485. The court said: jecture, not an impossibility,

but it is a “Plying,' when used in the connection that it is reasonable doubt.' It is not an unreasonable doubt. here, is a nautical phrase, which is defined by WebThe very term implies that there may be doubts not ster as follows: "To make regular trips; as å vessel reasonable or rational. It cannot be a merely pos- plies between the two places.' It might well be sible doubt, for any thing relating to human affairs urged that a vessel making regular trips between may be in some way subject to possible doubt. It any port in California and some port outside of Caliis such an actual and substantial and well-founded fornia, was 'plying in part in the waters of this doubt as would be entertained by a reasonable and State. But can that be properly said of a vessel conscientious man—such a doubt that the reason for which sails out of a port outside of this state to it can be examined and discussed. In State v. various ports and countries in the regular course of Reed, 62 Me. 129, the following was decided to be a commerce, transporting lumber and other freight,' correct definition: “It is a doubt which a reasona- and touching at the port of San Francisco tranble man of sound judgment, without bias, preju- siently in the course of her voyages, and only long dice or interest, after calmly, conscientiously and enough to take in and discharge cargo?' 'Plying deliberately weighing all the testimony, would en- implies regularity, and is not the term used to extertain as to the guilt of the prisoner. It is not press the character of the irregular and transient enough to establish merely a probability of guilt. visitations of a ship to a port in the course of her The rule requires that the guilt shall be estab- voyage to various ports. In that case a vessel is lished to a reasonable, but not an absolute, demon- said to touch at each of the ports which she visits. strative or mathematical certainty.

A vessel plies between two places-she may touch In the present case the learned judge who presided at many." at the trial went still further toward the outer circle

MILK.—This includes skimmed milk. Lane v. Colof judicial limits, and said to the jury that the law lins, Q. B. Div., December 16, 1884. The London only requires that degree of certainty in the minds Law Journal says: “All language has a tendency to of jurors before rendering a verdict of guilty, as deteriorate, but that is no reason why respectable would exist in their minds in coming to a conclu

words like 'milk' should have a push down hill sion on matters of grave interest and importance to given them by persons in authority. This is what


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

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

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

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

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

N many casesof fares; in fact he earns the wages becoming due to him through the confidence reposed in his hon- evidence of au actual marriage. It then becomes iin

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

portant to determine what other evidence is compePUBLIC PLACE.-In Reg. v. Wellard, C. C. Res., tent upon the point, and what facts and circumstan51 L. T. Rep. (N. S.) 604, it was held that a convic- ces will suffice to create a presumption of marriage. tion of indecent exposure of the person in a public What facts will justify a court or jury in inferring as a place was valid, although the place was one to which ually been made between two persons is a question

matter of fact that a valid marriage contract bas actthe public had no legal right of access. Coleridge, that appears to be involved in a considerable obscurity C. J., observed: “There is a difficulty to my mind and uncertainty, owing to the diversified circumstancertainly in giving an affirmative definition as to ces under which that question has been presented in what is a public place, but I am by no means certain

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

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

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

strict proof is required. The marriage cau be estabhaving an offense committed in it, and may not be

Jished by only direct evidence. In other proceedings

greater latitude is allowed the party on whom it is in a public place at another time for that purpose. cumbent to prove a marriage, in both the quality and The question is whether at the time the offense is

the quantity of the evidence he must produce to sus. committed the place is a public place in the natural tain the burden of proof resting upon bim. The want and ordinary sense of the term.

In Rex v. Crun

of barmony between the adjudications on this brauch den, 2 Camp. 89, McDonald, C. B., points out in a

of jurisprudence is however more apparent than real.

A careful review and analysis of the reported cases on short, and if I may say so, good judgment, the ob

the subject will eliminate from them much of this vious sense of what I have been endeavoring to give seeming conflict. as my opinion. There it appeared that on a Sunday With the exception of prosecutions for bigamy, afternoon the defendant had bathed opposite the adultery and incest, and suits for criminal conversaEast Ciiff at Brighton, undressing and dressing him

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

will be hereafter more particularly referred to, the au


1 V.

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sufficient facts on which to warrant a finding of mar- short of evidence of an actual marriage in any of the
riage. 1 Bish. on Mar. and Div., $8 434, 435, 436, 437, following cases :
442, 443, aud cases cited; Betsinger v. Chapman, 88 N. In prosecutions for bigamy or polygamy People v.
Y. 499.

Humphrey, 7 Johns. 314; Clayton v. Wardell, 4 N. Y. On principle it would seem to be the correct doc-230; S. C., 5 Barb. 214; Case v. Case, 17 Cal. 598; Trutrine, that such evidence of marriage is competent in man's case, 1 East P. C. 470; for adultery, Wedgwood's only those proceedings in which from the nature of case, 8 Greenl. 75; Commonwealth v. Norcross, 9 Mass. the case it is impossible to produce direct and positive 492; State v. Hodgskins, 19 Me. 155; for incest, State v. proof. This consideration appears to have governed Roswell, 6 Conn. 446; State v. Roswell, 6 id. 446; and the court in Collins v. Collins, 80 N. Y.1. The ques- for loose and lascivious cohabitation, Commonwealth tion of the existence of a marriage arose on an appli- v. Littlejohn, 15 Mass. 163; see Hopper v. State, 19 Ark. cation for alimony in an action for divorce. It ap- 143. So in a civil action for criminal conversation, peared that at the time plaintiff and defendant were Morris v. Miller, 4 Burr. 2057; S. C., 1 W. Bl. 632; Birt married, plaintiff had a husband living. There was Barlow, 1 Doug. 171; Hemmings v. Smith, 4 id. po evidence of an actual marriage with defendant 33; Cutherxond v. Caslon, 13 M. & W. 261; Dann v. after the death of the former husband. The court re- Kingdom, 1 Thomp. & Cook, 492. Whether in an acfused to grant the application for alimony on the tion for divorce ou the ground of adultery the marground that the marriage had not been established, riage can be established by cohabitation and repute saying at page 10: "The onus however is upon the seems to be involved in some uncertainty. But the plaintiff to establish with at least a reasonable degree decided preponderance of authority is in favor of the of certainty that she is the wife of the defendant, and sufficiency of such evidence. Purcell v. Purcell, 4 it would seem that sbe should produce the best evi- Hen. & Munt. 507, 512; Jorris v. Morris, 20 Ala. 168; dence in her power. She is a competent witness to Wright v. Wright, 6 Tox. 3; Trimble v. Trimble, 2 Ind. prove the fact of marriage, and if any new mar- 76; Harmun v. Parman, 16 III. 85; Hitchcox v. Hitchriage contract was entered into between her

cox, 2 W. Va. 435; Burns v. Burns, 13 Fla. 369, and the defendant, after the death of her first 380. husband, she should have alleged it." The doc- In Collins v. Collins, 80 N. Y. 1, the New York Court trine of this case should have universal application in of Appeals appeared to favor the doctrine of striot all proceedings in which it is possible to prove the mar- proof. The court refused to apply the rule of proof by riage by the testimony of one or both of the alleged cohabitation and repute. The evidence showed that married parties. But this is far from being true. Iu the parties alleged to be husband and wife bad lived numerous cases it has been held that marriage may be together as such from the death of the wife's former shown by cohabitation and repute during the life of husband in 1856 down to 1868. But the court decided the very persons whose marital relations are in dis- that the marriage was not sufficiently proven to enpute, or during the life of one of them. It may be title the wife to alimony, although it expressly recogproved in this manner in an action brought by bus- nized the principle that that fact would bave been band and wife jointly. Crozier v. Gano, 1 Bibb, 257; sufficient to establish a marriage in any other civil Hammick v. Bronson, 5 Day, 290; Boatman v. Curry, proceeding, excepting of course an action for criminal 25 Mo. 433. So in actions against husband and wife, conversation. The court seems to have based its dePettingill v. McGregor, 12 N. H. 179; Jenkins v. Bis- cision on the very satisfactory ground that the wife bee, 1 Edw. Ch. 377; Neuburyport v. Boothbay, 9 Mass. must prove the marriage by the best evidence within 414. So where a woman seeks as widow to recover her power; in other words that she must swear to it dower, or as widow claims to inherit her alleged hus- herself. This principle ought to be conclusive on the band's property. Young v. Foster, 14 N. H. 114; Sello point without assigning further reasons for the docman v. Bowen, 8 Gill. & J. 50; Chambers v. Drickson, 2 trine. But singular as it may appear, the courts in all 8. & R. 475; Pearson v. Howey, 6 Halst. 12; Stevens v. the cases above cited have invariably ignored this Reed, 37 N. 11. 49; Fleming v. Fleming, 8 Blackf. 234; fatal objection to the doctrine they promulgate. The Strover v. Boswell, 3 Dana, 232; Graham v. Law, 6 U. parties themselves being competent witnesses to prove C. C. P. 456. So where one sought to recover as beir the marriage, cohabitation and repute are subject to of his brother during the life of the father. Fleming v. the unanswerable objection that they are not the best Fleming, 4 Bing. 266.

evidence of which the case in its nature is susceptible. Where a presumption of marriage has once arisen The leaning of the court in Collins v. Collins toward from a cohabitation, apparently matrimonial, it can the rule requiring direct evidence of marriage is shown be overthrown by only the most cogent proof. Hynes by the following language; “Although as a genP. McDermott, 91 N. Y. 451, 459; Morris v. Davies, 5 Cl. eral rule for ordinary purposes, actual marriage may & Fin. 163; Piers v. Piers, 2 H. L. Cas. 331.

be presumed from matrimonial cohabitation and the In Morris v. Davies, Lord Lyndhurst said, in speak- | acknowledgments of the parties that they are husband ing of this presumption : "The presumption of law is and wife, there are cases in which direct evidence of not lightly to be repelled. It is not to be broken in marriage is required. The cases generally mentioned upon or sbaken by a mere balance of probability. The as calling for such direct proof, as contradistiuguished evidence for the purpose of repelling it must be strong, from mere proof of matrimonial cohabitation, recogdistinct, satisfactory and conclusive."

nition and general reputation are prosecutions for bigIn Hynes v. McDermott, the Court of Appeals de- amy and actions for crim. cou. But many others are clared : “The presumption of marriage from a cohabi- mentioned in the authorities, and some of them lay tation apparently matrimonial, is one of the strongest down the proposition generally that direct evidence presumptions known to the law. This is especially is required in all criminal or quasi criminal prosecutrue in a case involving legitimacy. The law pre- tions, or actions founded on the relation of marriage; sumes morality and not immorality, marriage and not aud in others it is said that when the violation of the concubinage, legitimacy and not bastardy. Where relation of husband and wife constitutes the guilt of there is enough to create a foundation for the pre- the accused, such relation must be proved by direct somption of marriage it can be repelled only by the evidence. * The question is too important to most cogent and satisfactory evidence.”

render it proper to determine it finally on a mere moMarriage cannot be established by mere proof of tion for alimony. The onus however is upon the plaints cohabitation and repute, or in fact by any evidence iff to establish with at least a reasonable degree of

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certainty that she is the wife of the defendant, and it itself to establish the marriage; but it was argued that would seem that she should produce the best evidence in as the performance of the religious ceremony without her power." To same effect Ellis v. Ellis, 11 Mass. 92. a previous valid marriage by a civil magistrate would The reason that underlies the doctrine of the pre- render all concerned guilty of crime, such marriage sumption of marriage from a cohabitation apparently must be presumed to have been duly entered into be matrimonial, is tbat the law will presume morality fore the performance of the religious ceremony, for and innocence rather than immorality and guilt. the reason that the law would presume that those conWhere therefore the effect of raising a presumption of nected with the performance of the marriage were inmarriage from cohabitation and repute would, nocent of such crime. But the court refused to be although it would exonerate the parties from the governed by this consideration, and based its decision charge of immorality in the particular case, be to in- on this point on the immovable foundation that the volve ove of them in an immoral relation with another law will not presume innocence in one instance where or render him or her guilty of a crime, the cohabita- the effect of such a presumption is to involve one of tion creates no presumption, and is thereforo uo evi- the parties litigaut in some moral delinquency or rendence of marriage when standing alone. If it can be der him or her guilty of a crime. The court said: shown that during the continuance, or prior, or subse- “Perhaps under the justly liberal rule in respect to quent to the cohabitation between the parties, one of proof of foreign marriages in civil suits, it" (the prethem cohabited with onother person, the law will not sumption of the innocence of those participating in presume that the cohabitation in question was matri- the religious ceremony) “would be allowed to prevail. monial, for that would necessarily reuder the other But to give that effect in a criminal prosecution would cohabitation meretricious, unless a legal dissolution of be to overcome the presumption of the prisoner's inthe former cohabitation by death or divorce, can be nocence by the no stronger presumption of the innoshown before the inception of the latter. As the law cence of a stranger, and that in a proceeding in which cannot in such cases presume inuocence in one case such stranger was not on trial." without rendering one of the parties guilty morally or It is not however a rule of universal application that criminally iu another case, it will not presume a mar- the presumption of innocence will not be raised in riage from either cohabitation. The authorities ou every case in which it comes in conflict with another this point are uniform. Breakey v. Breakey, 2 U. C. presumption. The doctrine has obtained for a long Q. B. 349, 358; George v. Thomas, 10 id. 604; Chamber- time, and is sanctioned by all the adjudications on the lain v. Chamberlain, 71 N. Y. 423.

point, that the presumption of innocence will counterIn George v. Thomas the court decided that the pre- balance and preponderate against the presumption of sumption of marriage from cohabitation is rebutted the continuance of life of the former wife or husband by the womau's having lived with another man in of one of the parties. Under the familiar rule of the such a manner as to create the same presumption of a common law the presumption of life continues till the marriage with him.

expiration of seven years from the time a person was In Chamberlain v. Chamberlain the court held that | last heard from. But where one of the parties to a the inference of a marriage from an apparently mat- marriage contract has been absent and unheard from rimonial cohabitation was overcome by the subse- for a reasonable time short of seven years, a second quent actual marriage of the alleged husband with marriage by the remaining partner may be sustained another woman during the life-time of the woman by indulging the presumption that the absent party with whom he had so lived. Precisely the same doc- was dead at the time of the second marriage, and the trine was enunciated in Clayton v. Wardell, 5 Barb. court is bound to instruct the jury that the presump214; 8. C., 4 N. Y. 230; Taylor v. Taylor, 1 Lee, 571; S.

tion of innocence may overthrow the presumption of C., 2 Eng. Eq. 290; Wheeler v. McWilliams, 2 U. C. Q. the continuance of life. Senser v. Bower, 1 Penn. B. 77; S. C., 3 id. 165.

450; Reg. v. Cross, I Fost. & F. 510; Spears v. Burton, The principle that lies at the foundation of this last 31 Miss. 547; Murray v. Murray, 6 Oreg. 17; Reg. 7. doctrine is that the presumption of innocence in the Lumley, Law Rep., 1 C. C. 196; Rex. v. Twyning, 2 one case would reuder the party guilty of bigamy, and B. & Ald. 386; Greensborough v. Underhill, 12 Vt. 604; thus the courts would in effect presume a greater Northfield v. Plymouth, 20 id. 582; Yates v. Houston, guilt than that which they would raise the presump- 3 Tex. 433 ; Chapman v. Cooper, 5 Rich. 452; Canaday tion to obviate. The authorities are numerous to the v. George, 6 Rich. Eq. 103; Hull v. Rawls, 27 Miss. effect, that in all cases where the consequence of pre

471. suming innocence in the particular case is that The question where the presumption of innocence is another guilt, moral or legal of au equal or greater de- to prevail is generally a question of fact. Murray v. gree is fastened upon one of the parties, the ordinary Murray, 6 Oreg. 17; Reg. v. Lumley, Law Rep., 1 C. C. rule of the presumption of a marriage will not obtain, 196. In Rex v. Twyning the court sustained the verbut that direct evidence of the alleged marriage dict of the jury which upheld a marriage entered into must be adduced. Jones v. Jones, 45 Md. 144; by a woman within a year after the departure of her 48 id. 391; Poultney v. Fairhaven, Brayton (Vt.). first husband from the country, and in Rex v. Har. 185; Houpt v. Houpt, 5 Ohio, 539; Foster v. Hawley, 8 borne, 2 A. & E. 540, the court sustained a verdict Huu, 68; see also 1 Bish. on Mar. & Div., $$ 444 to 447;

which found against the validity of a marriage celeBlanchard v. Lambert, 43 Iowa, 228; Harrison v. Lin- brated only twenty-five days after the absent partner colii, 48 Me. 205; Stevens v. Joyal, 48 Vt. 291 ; Hill v. of the former marriage was known to be alive. State, 41 Ga. 484; Williams v. State, 44 Ala. 24.

In Greensborough v. Underhill the court set aside the Iu Weinberg v. State, 25 Wis. 370, the defendant was

verdict of the jury which declared void a second marindicted for bigamy. To sustain the charge it was riage entered into two years after the husband of the necessary to prove a marriage in Prussia. By the law former marriage was last heard from. But in Northof that country a marriage to be valid must be en- field v. Plymouth the same court appears to have called tered into as a civil contract before a civil magistrate. in question the soundness of the former decision, beA religious solemnization of a marriage is forbidden

cause it seemed to have made the question one of law under severe penalties until the contract has been

rather than of fact. However the court was clearly duly made before a civil magistrate. The only evi- right in ordering a new trial in the first case, for the dence of the Prussian marriage was the religious jury were manifestly misled by the charge of the solemnization. This of course was not sufficient of court, and probably would have sustained the second

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marriage had they not labored under a misapprehen- wife to Reed, it was generally reported and believed sion as to the law of the case.

that he (Guest) was dead. Plaintiff married Reed in Where there has been sufficient to create a presump- 1792. From the time of his return in 1794 until the tiou it is pot rebutted by the fact that the parties time of his death in 1800 Guest continued to reside in were subsequently married. Starr v. Peck, 1 Hill, 270; the State. Plaintiff, after the death of Guest, cohab. Betsinger v. Chapman, 88 N. Y. 499. The branch of ited with Reed down to his death in 1806. No solemthis subject which is involved in the greatest uncer- nization of marriage was shown to have been pertainty is that which relates to cobabitations which are formed between the plaintiff and Reed subsequen meretricious in their inception. When we are com- the death of Guest. The court below decided how. pelled to start with the conceded fact that the com- ever that as a matter of fact a marriage had taken mencement of the intercourse was illicit, it is an ex- place between them after Guest's death .in 1800. Ou ceedingly difficult question to determine from the au- appeal this decision was affirmed, the court saying: thorities what facts and circumstances, short of proof “There existed strong circumstances from which a of an actual marriage, will warrant a court or jury in marriage subsequent to the death of Guest might be deciding that the meretricious union no longer exists, presumed.” The parties cuhabited together as busbut that the parties have in fact become husband and band and wife, and under the reputation that they wife. The familiar principle of the presumption of were such from 1800 to 1806, when Reed died, and the continuance is frequently applied in such cases, and wife during that time sustained a good character in the courts have almost uniformly and universally ad- society. judged that a cohabitation shown to bave been illicit

in its inception will be presumed to continue illicit
until the contrary is clearly established. Badger v.
Badger, 88 N. Y. 546; Brinkley v. Brinkley, 50 id. 198; BANKS AND BANKING-NEGLIGENCE-COLLEC-
Cunningham v. Cunningham, 2 Dow. 483; Barnum v.

Barnum, 42 Md. 251; Post v. Post, 70 III. 484; Floyd v.
Calvert, 53 Miss. 37; Yardley's Estate, 75 Penn. St. 207; SUPREME COURT OF THE UNITED STATES,
Lapsly v. Grierson, 1 H. L. Cas. 498; Caujolle v. Fer.

NOVEMBER 24, 1884.
rie, 23 N. Y. 106; Clayton v. Wardell, 4 id. 230; State
v, Worthingham, 23 Minn. 528.

What will suffice to overcome this presumption de-

pends largely upon the animus with which the parties
formed their illicit connection. Where they have

A bank in Pittsburgh sent to a bank in New York for collecmanifested a desire to live in a matrimonial union,

tion eleven unaccepted drafts, dated at various times and not in a state of concubinage, and during their co

through a period of over three months, and payable four habitation there bas been a time when they might

months after date. They were drawn on Walter M. Conlawfully have married, a jury will be justified in find

ger, Secretary Newark Tea Tray Co., Newark, N. J., and

were sent to the New York bank as drafts on the tea tray icg a marriage from the mere fact of continued cohab.

company. The New York bank sent them for collection itation appareutly matrimonial, although it was for

to a bank in Newark, and in its letters of transmission recsome reason meretricious in its inception. The following authorities fully sustain this proposition: Fenton v.

ognized them as drafts on the company. The Newark Reed, 4 Johns. 52; Van Buskírk v. Claw, 18 id. 345;

bank took acceptances from Conger individually, on his

refusal to accept as secretary, but no notice of that fact Rose v. Clark, 8 Paige, 574; Caujolle v. Ferrie, 23 N. Y. 90; Betsinger v. Chapman, 88 id. 487-499; Hynes v.

was given to the Pittsburgh bank until after the first one

of the drafts bad matured. At that time the drawers and McDermott, 91 id. 451; Holabird v. Atlantic Ins. Co., 12 Am. Law Reg. (N. S.)566; North v. North, 1 Barb. Ch.

an indorser had become insolvent, the drawers having 241; Starr v. Peck, 1 Hill, 270; Donnelly v. Donnelly, 8

been in good credit when the Pittsburgh bank discounted B. Mon. 113; Blanchard v. Lambert, 43 Iowa, 228; State

the drafts. Held, that the New York bank was liable v. Worthingham, 23 Minn. 528; Dickerson v. Brown, 49

to the Pittsburgh bank for such damages as it had susMigs. 357; Floyd v. Calvert, 53 id. 37-46; Jones v. Jones

tained by the negligence of the Newark bank. 45 Md. 155; Yates v. Houston, 3 Tex. 433-450; Campbeli


N error to the Circuit Court of the United States for 1. Campbell, Law Rep., 1 H. L. Sc. 182, 201, 204, 212, the District of New Jersey. The opinion states the 215; Breadalbane's case, L, R., 1 Scotch Divorce Appeals. 182; De Thoren v. Attorney-General, L.R., 1 App.

John R. Emery and Thomus N. McCarter, for plain-
Cas. 686; In re l'aylor, 9 Paige, 611.

tiff in error.
Iudeed some of the authorities have gone so far as to
presume a subsequent marriage against all the proba- A. Q. Keasbey, for defendant in error.
bilities of the case.
Among those are Fenton v. Reed,

BLATCHFORD, J. The Exchange National Bank of
Rose v. Clark, Campbell v. Campbell, De Thoren v. Al-

Pittsburgh, Pennsylvania, brought this suit against torney-General, Breadalbane case, and Donnelly v. the Third National Bank of the city of New York, in Donnelly. The question is so important, and these the Circuit Court of the United States for the District cases are so unanimous in support of the true doctrine

of New Jersey, to recover damages for the alleged neg. that where the evideuce discloses the fact that the

ligence of the defendant in regard to eleven drafts or parties desired a matrimonial instead of a meretricious

bills of exchange indorsed by the plaintiff to the de. connection, the slightest circumstance should be held

fendant for collection. The suit wils tried before a to afford sufficient evidence on which to predicate a court without a jury. It made a special finding of fuding of marriage, that the discussion of this ques.

facts, and rendered a judgment for the defendant, to tion would be very incomplete without a brief review review which the plaintiff has brought this writ of er

ror. In Fenton v, Reed, decided in 1809, the question of mar- The facts found are these, in substance: The drafts riage was presented under the following circumstances : were drawn by Rogers & Burchfield, at Pittsburgh, to The plaintiff claimed to be the widow of oue Reed. the order of J. D. Baldwin, and by him indorsed, on In the year 1785 she was the wife of one John Guest.

"Walter M.Conger, Sec'y Newark Tea Tray Co., NewSometime during that year Guest left the State for

ark, N. J.,” and were discounted before acceptance by foreign countries, and did not return until 1794; and previous to his return, and before the marriage of his * S. C., 5 Sup. Ct. Rep. 141, reversing 4 Fed. Rep. 20.


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