The opinion of the court was delivered by
The case, as it is now presented, is a very-singular one, and the judge, who amended the bill of exceptions after it was drawn up and filed, must have done it inadvertently, without strictly noticing its effect on the other parts of the case. ' It seems that the trial was had before the court, and the question was, whether there had been an actual marriage between Samuel P. Hall and Adaline Peabody. A record of that marriage was offered in evidence, but it was neither admitted or rejected, and is therefore wholly out of the case. Certain admissions were made, which, we learn from the other part of the case, were the admissions of the parties; and these were, in substance, that the parties had cohabited together, apparently as husband and wife, from the time mentioned in the extract from the records, though not so in fact. The court, from these admissions, found and adjudged that they were husband and wife. Now when it was admitted by both parties that they were not, in fact, married, it was clearly erroneous to find that they were.
There may be presumptive evidence of a fact, sufficient to war" rant a court or jury in finding the fact. An absence of a party seven years may afford evidence 'of his death. Yet, if it can be established contrary to the presumption,-^-as that the party Was actually alive, — no court or jury would be warranted in finding, from the presumptive .eyidence alone, anything contrary to the actual fact. Upon these admissions, the court was clearly wrong in finding a marriage, when it was admitted there was none.
The judgment of the Gounty court is therefore reversed.