In this case, Mrs. Clayton makes title to the legacy in question, as the only lawful child of George Messerve. She is bound to prove affirmatively a legal marriage between her father and Sarah Maria Young, her mother. She would have the unquestioned right to establish this by proof of the declarations, cohabitation, and the reputation prevailing in the family, and among the friends of the parties. And I see no reason why her claim may not be resisted by evidence of a similar character.
The general principle deducible from the cases would seem to be this: That where the object of the testimony, was to show a party guilty of a crime, or of an offence in the nature of a crime, evidence of the same character and strength must be produced, that would be necessary upon an indictment. Thus on a charge of bigamy or adultery, the relation of husband and wife, the violation of which, in either case, constituted the guilt of the accused, must be established by record evidence when it exists, or at least by the testimony of witnesses, present at the marriage. Nothing short of this will answer the purpose. (Morris v. Miller, 4 Burr. 2057; Commonwealth v.Littlejohn, 15 Mass. 163; State v. Hodgskins, 11 MaineR. 155; People v. Humphrey, 7 John. 314; Regina v.Millis, 10 Clark Finn. 534; Catherwood v. Caslon, 13Mees. Wels. 261.) Whatever may be the rule now in England, with us, marriage has always been considered as a civil contract, which if made pe verba in presenti, without cohabitation, is valid. (2 Kent, 87, and notes; 13 Com. L.R. 266, note.) The law of our state exhibits, therefore, the singular anomaly of recognizing the validity of a marriage, entered into by the consent of the parties, without witnesses, and yet requiring their testimony to a marriage in fact, in all criminal or quasi criminal prosecutions, or actions founded upon that relation. The rule, however, neither in England or in this country, extends to cases merely involving rights to property. (Wilkinson v.Payne, 4 T *Page 244 R. 470; Burt v. Barlow, Doug. Rep. 166; Devereaux v.Much Dew Church, 1 W. Bl. 367 and note; 2 Kent, 87;Reed v. Fenton, 4 John. 52, Jackson v. Winne, 7 Wend. 50.)
This suit was not instituted in behalf of Mrs. Clayton, for the purpose of establishing the guilt or innocence of her parents, but to recover a sum of money. As a part of her title she proves a marriage between Messerve and her mother on the 3d day of July, 1825. The defendants, who were executors, with a view to protect the estate of their testator against this demand of the daughter, affirm, and she denies, that her mother was previously married to Schenck, who was living at the period above mentioned. The effect of this evidence upon the reputation of Mrs. Sharkey, is incidental; and guilt upon her part, if made out, is the result of facts, proved not by one, but both of the parties, for an entirely different object. It seems to me that neither of these litigants are entitled to treat these collateral results as the main issue in the cause, and to call upon the other to overcome presumptions of innocence, which would be pertinent if Mrs. Sharkey were on trial for a criminal offence. There is a wide distinction between bigamy and a common law contract.
Undoubtedly the petitioner can claim, to some extent, the benefit of a presumption in favor of her mother's innocence. So can the opposite party; and between the moral guilt of prostitution, continued under the roof of her mother, under the circumstances disclosed by the evidence, and that of bigamy, there is very little to choose. Most females with any pretension to character, would consider the imputation of the former offence quite as degrading as the latter. (1 Hill, 272.)
Indeed, the only presumption that will exonerate Mrs. Sharkey from gross moral delinquency, is that she and her first husband supposed that the deed of separation, executed on the 3d of June, 1825, authorized her to contract a second marriage. The supposition is not an uncommon one, by persons in their condition, and might be honestly entertained by a woman whose education was not sufficient to enable her to write her own name. *Page 245
I shall not recapitulate the testimony. In addition to the usual evidence of cohabitation, acknowledgment, reception by the family, and friends of the parties, we have the indenture to which I have referred, executed by both parties, and the trustee of the female. That recites unhappy differences between Schenck, the husband, and Sarah Maria, his wife, and contains a stipulation that the wife may live separate from the husband, and that he will not compel her ever thereafter, to cohabit with him, nor molest or disturb her property, or person in any wise whatever. If an instrument of this kind, containing the distinct and unqualified admission of both parties, that they were at thetime husband and wife, and the sole object of which was to modify that relation as an existing one, is not evidence from which marriage in fact can be inferred, no such evidence short of the proof of witnesses present at the ceremony can be given.
It is now said, that the evidence of the identity of the parties is insufficient. Wood, one of the subscribing witnesses, who drew the article, says he saw the parties to it execute it. That he saw them several days at the office before the execution of the paper. He had no acquaintance with them previously, nor should he now know them, (17 years after the transaction,) if he saw them. This is entirely consistent with the fact that he knew them to be the parties at the time of his subscription, after "several days' acquaintance and conversation with them, upon the subject of their difficulties." But Mott, the other witness, was the nephew of the employer of Schenck, and was unquestionably acquainted with all the parties, and made a witness for that reason. He was dead, but his signature was proved, and was alone sufficient to establish the execution of the deed, and the identity of the parties. (Phil. Ev.; Cowen and Hill, 2d ed.vol. 1, 473, and part 2, pp. 1300, 1301, and cases.) In addition, it was proved, that the trustee of Mrs. Sharkey was her brother-in-law, and that the deed, when executed, was deposited with the sister of Schenck for safe-keeping. This objection was taken before the surrogate, after Wood had testified; but it was not renewed when the subsequent evidence was given. It is not noticed by the surrogate, or the supreme *Page 246 court, and is unworthy of serious consideration anywhere. The surrogate who heard the witnesses testify, and whose situation was more favorable than any court of review for judging of their credibility, was satisfied of the existence of the first marriage, and has decided accordingly.
I think we cannot overrule his decision, without adopting the doctrine that in suits for a money demand, a marriage in fact can not be invalidated by any evidence, however strong, of a prior contract of the same kind, which would be insufficient to produce a conviction upon an indictment for bigamy. I prefer the law as it is. If there is any change it should be, as I think, by repudiating the distinction between the kinds of evidence requisite to establish a contract of marriage in civil suits, and in criminal or quasi criminal proceedings. The distinction was established by Lord Mansfield, and has been adopted without question or investigation apparently. There never has been a reason assigned for it, which if followed out, would not uproot the whole doctrine of presumptive evidence, as applicable to criminal prosecutions.
I think the judgment of the surrogate should be affirmed, and that of the supreme court reversed.
BRONSON, C.J. and JEWETT, J. concurred in the opinion delivered by Judge GARDINER.
And thereupon the judgment of the supreme court was affirmed. *Page 247