Further consideration upon the rehearing of the question involved herein has led me to the conclusion that the court erred in making the order appealed from. The question involved in the appeal is to be determined by the statutes of this state, irrespective of the decisions thereon by the ecclesiastical and chancery courts of other jurisdictions, however serviceable the opinions of those courts may be in arriving at a proper construction of these statutes. “The code establishes the law of this state respecting the subjects to which it relates” (Civ. Code, sec. 4); and section 137 of the same code provides: “While an action for divorce is pending the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” As such order can be made only in behalf of the wife, it is essential that the applicant for the order make it appear to the court that she is the wife of the respondent. In an action for divorce by the husband, it would appear from his complaint that the defendant is his wife, and no further showing of this fact would be required; but in an action by a woman who claims to be the wife of the defendant, if the defendant denies that the plaintiff is *398bis wife, she .must establish the relation- between them to the satisfaction of the court before she can be entitled to the order. The existence of this relation would be the main issue in the action, and would need to be affirmatively established before any decree of divorce could be rendered; but I do not think that the mere denial by the defendant that the plaintiff is his wife ousts the court of power to make an order requiring him to provide her with means to prosecute the action, or for her support during its pendency. An application for alimony can be made only “while an action for divorce is pending)” and to this extent it is dependent upon the issues involved in such action, but the granting or refusal thereof is not dependent upon the final determination of the issues in the action, or available in the determination of those issues. It is a collateral proceeding or episode within the action, authorized for a particular purpose, but dependent for its maintenance upon the existence of the action. It is to be heard and determined upon a record of its own, and the decision thereon may be made and may be the subject of an appeal before the determination of the issues in the action. The evidence offered in its support may or may not be the same as that which will be offered upon the trial of the issues presented by the pleadings. Being authorized for a special purpose, the decision thereon is limited to that purpose, and can be no more available for the determination of the issues in the action than is the preliminary determination upon an order for the publication of a summons .that a cause of action is stated in the complaint, or than an order for family allowance to one claiming to be the widow of the decedent is available at the distribution of the estate. If, upon the application, the fact of marriage is denied by the defendant, it is to be determined like any other question of fact upon the evidence offered in its support, and should be denied unless the evidence thus offered would be sufficient to justify the court in granting a divorce, if the action were submitted upon that evidence at the final hearing.
Upon the hearing herein the defendant denied that there had ever been any intermarriage between him and the plaintiff, and there was no direct evidence of such marriage. I do not think that the deposition of the plaintiff was entitled to any consid*399oration by the court for the establishment of this fact. The evidence contained therein consisted merely of her assent to statements of fact made by her counsel, and it sufficiently appeared, both by her own statement and by the character of her responses to the questions put to her, that she could neither speak nor understand the English language. The plaintiff sought to establish the marriage between them by evidence of repute, and for that purpose offered the affidavits of two persons to the effect that she was reputed to be his wife. In response thereto the defendant read the .affidavits of several persons to the effect that the parties were never reputed to be married in the community in which they lived.
Repute of marriage is but hearsay, and the fact of marriage is not established by reputation, unless it appears that the reputation is uniform. Hearsay ceases to be entitled to any weight as evidence unless it is uniform, and it is only by reason of its uniformity that it will, in any instance, authorize the presumption of a fact. The court is not at liberty to determine the fact upon a preponderance of the hearsay, but if it is divided it must be rejected entirely. “Where reputation is relied on, that reputation, to raise the presumption of marriage, must be founded on general, not divided or singular, opinion; and where reputation in such case is divided, it amounts to no evidence at all.” (Barnum v. Barnum, 42 Md. 297.) Cohabitation of a man and woman gives rise to reputation of their marriage, because the presumption from one’s conduct is in favor of innocence, and their cohabitation is presumed to be consistent with good morals and therefore matrimonial; but, if their cohabitation is shown to have been illicit in its origin, the presumption of innocence is overcome and the continuous cohabitation will be presumed to be illicit. If during its continuance their cohabitation is changed from an illicit to a matrimonial character, the burden of showing this fact is upon the one who would avail himself of the effect of the change. It clearly appears herein that the intercourse of the plaintiff with the defendant was illicit at its commencement, and so continued for many years, and there wras no evidence except that of the plaintiff of any change in its character; but, as above stated, her evidence was not entitled to any consideration. Moreover, pre*400sumptions are resorted to for the establishment of facts only in the absence of direct evidence upon the facts sought to be established; and it is a rule in the consideration of evidence that when it is within the power of a party to produce direct evidence of the fact, and, instead of doing so, he produces evidence of an inferior character, it will be presumed that the direct evidence would be adverse to his claim.
The contention on the part of the respondent that when the fact of marriage is put in issue it is only necessary for the wife to make a prima facie showing in order to entitle her to alimony for the prosecution of the suit, as well as the contention by the appellant that if he is compelled to pay alimony to the plaintiff prior to the determination of the action, and while it may be finally determined that she is not his wife, he will be deprived of his property without due process of law, is fully considered in the opinion of Hr. Justice Temple, and I concur in his views thereon. If the fact of marriage is denied by him, he is as much entitled to a hearing and an opportunity to controvert the showing made by the plaintiff upon her application for alimony as at the final hearing of the action, and in either case the issue thus presented is to be determined by the court upon a preponderance of the evidence thereon. If, upon her application, he is given such a hearing as is appropriate to the character of the controversy, or, as is usual in such cases, with the opportunity to controvert her claim as fully as he may desire, he receives all the protection to which he is entitled by law.
In view of the principles which should have governed the court in considering the evidence offered at the hearing of the plaintiff’s application, I am of the opinion that there was no evidence before it tending to show a marriage between the parties, and that her application should have been denied.