Dann v. Kingdom

E. D. Smith, J.

It has long been settled that in actions for criminal conversation and divorce, and in prosecutions for bigamy, an actual marriage must be proved—and that in these cases the cohabitation of the parties as man and wife, their declaration or admissions, or the reputation of an existing marriage—or the plaintiff’s acknowledgment of the woman as his wife, and holding her out as such to his friends and acquaintance, and her reception in the family as such are not sufficient to maintain the suit. 2 Phil. Ev. 206; Cowen and Hill’s note (782), 410; Morris v. Miller, 4 Burr. 2057, and Birt v. Barlow, 1 Doug. 170; 2 Greenl. Ev., § 49; Fowler v. Reed, 4 Johns. 53; 7 id. 314.

The proof offered by the witness Dann, the plaintiff, was of the class held insufficient, and was properly excluded within these cases.

The plaintiff was not a competent witness to prove such marriage. The act of 1867, to enable husband and wife to be witnesses for and *494against each other (Laws 1867, chap. 887), expressly -excepts the cases where the question of the adultery of the husband or wife is in controversy, except to prove a former marriage in case of bigamy, and the fact of marriage in actions for divorce. n

This evidence was therefore properly excluded.

The certificate of marriage was also properly excluded. It was entirely insufficient. When a statute makes such a certificate or any class of ex parte or extrajudicial statements evidence, the statute must be strictly complied with.

This certificate fails to state, as required by the statute, that the magistrate knew the parties described in such certificate, or that they were satisfactorily proved by the oath of a person known to him to be the persons described in such certificate, and that he had ascertained that they were of sufficient age to contract marriage. It also fails td state the name and place of residence of the attesting witnesses, and no attesting witnesses appear on the face of the certificate to have been in fact present. And it also fails to state that, upon due inquiries made, there appeared no lawful impediment to said marriage.

The proof was entirely insufficient upon this point of the marriage of the plaintiff with the woman in question, and the nonsuit was properly directed.

The judgment should therefore be affirmed.

Judgment affirmed.