(concurring.) The following statement of the proceedings in this case will present the points of law decided: The bill was filed October 3, 1883, the object being to cancel, as a forgery and a fraud, an alleged written declaration of marriage, a copy of which is set out in the bill. A subpoena was thereupon issued, and on October 3, 1883, duly served on the respondent, who entered an appearance on the next rule-day, November 3, 1883. On November 1, 1883, nearly a month after the filing of the bill and service of subpoena in the ease, the respondent, by the name of Sarah Althea Sharon, filed a complaint against William Sharon, complainant herein, in the superior court of the city and comity of San Francisco, wherein she alleged that on August 25, 1880, she and said Sharon, by mutual agreement, became husband and wife, and commenced cohabiting, together as such; that, “inasmuch as said marriage had not been solemnized in the mode provided by section 70 of the Civil Code of California, the plaintiff and defendant jointly made a declaration of marriage in writing, signed by each of them, substantially in form required by section 75 of the Civil Code of California, and until the month of November, 1881, Ihe plaintiff and defendant lived and cohabitated together in said city and county as husband and wife;” that on or about November 5, 1881, defendant demanded of the plaintiff in said suit a surrender of said declaration of marriage, and threatened violence if she refused to comply with his demand, — “refused to recognize his said marriage with plaintiff, and drove plaintiff from him, and refused to live or cohabit with her for more than a year, thereby willfully deserting her.” In addition to desertion, she alleged numerous acts of adultery with other women, as further grounds for divorce. She then prays “that her marriage with said defendant may bo declared legal and valid;” “that she may he divorced from said defendant;” *380and for a division of the common property, alleged to be of more than 1510,000,000 in value. On November 10, 1883, defendant, William Sharon, filed bis answer to said complaint in the superior court, denying all the allegations relating to the marriage, and averring that said alleged declaration of marriage in writing is a forgery and fraud. On November 22, 1883, defendant, Sharon, removed the case to this court, on the ground that he was a citizen of the state of Nevada, and plaintiff a citizen of California; and the transcript of the record was filed in this court two days thereafter, on November 24, 1883. On December 3, 1883, the plaintiff in said suit gave notice of a motion, based on the record in the case, to remand the same to the state court, on the ground “that the said circuit court has no jurisdiction in the suit, neither of the subject-matter thereof nor of the parties.” Without bringing this motion to a hearing, on December 31, 1883, on application of plaintiff’s attorneys therein, and on stipulation of counsel, as follows: “It is hereby stipulated by and between the respective parties that the above-entitled suit be remanded to the superior court of the city and county of San Francisco, state of California, whence it came,'’ — it was “ordered that the above-entitled cause be, and the same hereby is, remanded to the superior court of the city and county of San Francisco.” After the case had been thus remanded to the superior court, on January 3, 1884, a stipulation in the following language, signed by the attorneys of the respective parties, was filed in said superior court:
“It is hereby stipulated and agreed, by and between the respective parties to this suit, that the above-entitled cause may be assigned to department 2 of said court, and tried by Hon. J. J?. Sullivan, without a jury.”
In the mean time, on the rule-day next succeeding her appearance in this court, December 3, 1883, respondent, Sarah Althea Hill, filed a demurrer to the bill in this suit, which was argued and submitted on January 21, 1884, and after due consideration overruled March 3, 1884, in an opinion reported in 10 Sawy. 48, and 20 Fed. Rep. 1.
On April 24, 1884, after two extensions by the court of time to plead, a plea in abatement was filed by respondent, alleging (1) another suit pending in the superior court for the same cause, — said suit of Sharon v. Sharon; (2) that complainant, Sharon, was, at the commencement of the suit, and still continued to be, a citizen of California, and not of Nevada, as alleged by him. A replication to this plea was filed May 5, 1884. The ease then, in pursuance of the practice of the court, went regularly upon the calendar of the July term, 1884, for trial of the issue on the plea in abatement; and on the regular call of the calendar, in pursuance of the rules and practice of this court, on July 14th, the first day of the term, it was set down for hearing for September 2, 1884. On September 2d, upon being regularly called in its order, the hearing was continued to October 15, .1884. On October 15th, the case, upon being regularly reached and called in its order, was submitted for decision by the counsel for com*381plainant, in pursuance of rule 14 of this court, no counsel appearing for respondent. The case was submitted on the pleadings, without evidence, none having been taken, more than five months having elapsed since the case was at issue on the plea, and the time for taking testimony having long before expired, no extension of time for taking testimony having been granted, or applied for by either party. On October 16, 1884, the plea was found false, and overruled on that ground, there being no evidence to support it. See opinion of the court, reported in 10 Sawy. 394, and 22 Fed. Rep. 28.
Leave to answer to the merits within 30 days having been given, and the time having been from time to time extended, an answer was finally filed on December 30, 1884, in which the allegations of the bill, including the allegation of the citizenship of complainant, were denied; an attempt being thereby made, without leave of the court first obtained, to again raise, in the general answer, the issue of citizenship, before determined and adjudged on the plea in abatement. No application had been made or leave granted for a rehearing on the plea in abatement, or to reopen that issue, already passed into judgment, and the interlocutory decree adjudging the plea false and overruling it was still in full force. A replication to the general answer having been filed, and the ease put at issue January 2,1885, the parties, shortly thereafter, proceeded to take testimony. During the time these proceedings were going on, the trial of the said divorce snit of Sharon v. Sharon was commenced in the said superior court on March 10, 1884, and continued from time to time until September 17, 1884, when it was finally submitted to the court for decision.
On February 18, 1885, the court filed its findings of fact and conclusions of law, and ordered a decree in favor of complainant, granting a divorce, which decree was entered upon the findings on February 19, 1885. In the decree, after reciting that it is “found that plaintiff and defendant intermarried in August, 1880, and that the defendant deserted the plaintiff in December, 1881, ” “it is ordered, adjudged, and decreed that the plaintiff and defendant are husband and wife, and that the marriage now existing between the plaintiff and Sarah Althea Sharon he, and the same is hereby, dissolved, and that said parties are, and each of them is, freed from the obligations thereof.”
The second finding of the court in said case is as follows:
“That on tlie twenty-fifth day of August, A. 1). 1880, the plaintiff and defendant each signed a certain declaration of marriage, in the words and figures following, to-wit: [Here is set out the contract in the same language and form as set out in the bill in this suit-, and in the opinion of my associate, and also as it appears in 10 Sawy. 48, and 20 Fed. Rep. 1;]—which was the only written declaration, contract, or agreement of marriage ever entered into between said parties, and, at the time of signing said declaration, plaintiff and defendant mutually agreed to take each other as, and henceforth to bo to each other, husband and wife.”
The third, fourth, eighth, and ninth findings are as follows:
*382“(3) That afterwards, and about the-day of September, 1880, the plaintiff and defendant commenced living and cohabiting together, in the way usual with married people, although their cohabitation was kept secret, and so continued for the space of more than one year, and down to the twenty-fifth day of November, 1881, and during all of said time plaintiff and defendant mutually assumed towards each other marital rights, duties, and obligations. (4) That during the time plaintiff and defendant so lived together, defendant visited her relations with her, escorted her to places of amusement, and introduced her to respectable families and to members of his own family, and wrote to her several letters, while absent from her, in which he addressed her as ‘ My Dear Wife.’ ” “ (8) That it is not true, as stated in the answer of defendant, that plaintiff has either falsely pr fraudulently assumed the name of Sarah Althea Sharon; but, oh the contrary, that it is her real name. Nor is it true that she or any one forged the document mentioned in the complaint and heretofore set forth; on the contrary, the said document is genuine, and was signed by the plaintiff and defendant at the time it purports to have been signed. (9) That defendant never introduced plaintiff as his wife, nor spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to nor of him to other persons in his presence as her husband; that the parties were never reputed among their mutual friends to be husband and wife, nor was there at any time any mutual open recognition of such relationship by the parties, nor any public assumption by the parties of the relation of husband and wife.”
On February 26, 1885, the defendant, Sharon, took and perfected an appeal from said judgment of the superior court to the supreme court of the state, and gave a bond of such character as, under the statute, to operate as a supersedeas and a stay of all proceedings pending the appeal, and the case now stands pending on appeal and undetermined in the supreme court of the state. After the rendering of the said judgment in the state court in said case of Sharon v. Sharon, the respondent presented to this court a certified copy of the pleadings, findings, and judgment (or decree) therein, and asked leave to file a supplemental answer in this case, setting up such record as res adjudicata, and praying a stay of proceedings in this case “until the judgment in said case of Sarah Althea Sharon v. William Sharon shall become final;” thus recognizing the fact that said judgment had not yet “becomefinal.” The complainant, in response, presented a copy of the record, showing that a suspensive.appeal had be'en taken, and was then pending. On March 4, 1885, leave was given to file the supplemental answer, and it was filed; but the court reserved the determination of the effect of the proceedings set up in the supplemental answer until the final hearing of the case, and denied the motion to stay proceedings until the judgment shall “become final” in the state court. It also appeared, upon the final hearing, that defendant, Sharon, moved for a new trial in said case of Sharon v. Sharon in the superior court, and that said motion for new trial is still pending and undetermined in said court.
On March 9, 1885, in resisting an application on the part of complainant to compel the respondent in this case to produce certain papers before the examiner to be used in evidence, the respondent *383urged that the bill did not allege the citizenship of the parties in such form as, upon its face, shows jurisdiction in this court over the case, and for that reason the court had no authority to make the order. This objection, after argument and full consideration, was overruled, and the bill, on that point, sustained in an opinion reported in 10 Sawy. 635, and 23 Fed. Rep. 353.
in resisting a further order to show cause why certain papers should not be produced before the examiner for purposes of evidence in the case, on April 20, 1885, the respondent filed several affidavits tending to show that the complainant, Sharon, was not, at the commencement of the suit, or at any time afterwards, a citizen of Nevada; but was during all the time a citizen of California, and therefore that the court had no jurisdiction over the case, and consequently no jurisdiction to make the order sought. The court, in a decision reported in 10 Sawy. 666, rejected the affidavits, on the grounds that the question of citizenship had been conclusively and finally determined for this case on the plea in abatement, — the decision and interlocutory decree adjudging the plea false being still in full force, — and that there was no longer an open issue in the case on the question of citizenship; also, on the ground that the issue, if open for trial, would not be determined upon ex parte affidavits, but only as one of the issues in the case. Notwithstanding these rulings, the respondent put in testimony before the examiner, under and subject to the objection of the complainant that it is immaterial and irrelevant to any open issue in the case, and, at the hearing, insisted that the issue was still open, and that the testimony should be considered, and the issue again decided on the evidence as then presented. Respondent's counsel also insisted upon again arguing the question made and decided on the demurrer, that the bill does not state a ease for equitable cognizance. The court, being fully satisfied with its former decisions on these points, overruled the application of respondent’s counsel, and declined to hear further argument upon them.
Upon the foregoing state of facts the points of law to be considered arise. It is first insisted that the complainant is estopped from litigating the validity of the alleged marriage contract in this case in this court, by the stipulation mentioned, in pursuance of which another case — the said case of Sharon v. Sharon—was remanded to the state court. It is claimed that by that stipulation all the matters in controversy between these parties were agreed to be litigated in the state court alone; but nothing of the kind appears, expressly or inforon-tially, in the stipulation. It makes no reference to this ease at all. That case was commenced in the state court, and removed to this court by the defendant therein under the act of congress of 1875, on the supposition that he had a right to try it in the courts of the United States. The plaintiff in the case denied that right on the face of the record, on the grounds that the subject-matter — it being a suit for divorce — was not within the jurisdiction of this court in any event, and *384that it did not appear to be a case for jurisdiction on the ground of citizenship, even if this court could take jurisdiction, in any case, of a suit for divorce. On these grounds complainant moved to remand the ease, as having been improperly removed, and, in view of the decision of the supreme court in Barber v. Barber, 21 How. 584, the respective counsel may have supposed that there was some ground to believe that the motion might be sustained on the ground of want of jurisdiction over a suit for divorce, had it been prosecuted to a decision. However this may have been, the respondent’s counsel, either having doubts upon this jurisdictional point, or for some other reason satisfactory to themselves, concluded not to require the motion to be pushed to a decision, and to permit the motion to be granted. Thereupon they consented, in writing, that the case should be remanded to the court whence it came. . This was simply a substitute for the hearing, of the motion, and a decision upon it, which, if sustained, would still compel them to go back. They simply submitted to the motion, and the only effect was to return the case to the state court, and place it in statu quo. The stipulation had no reference to any other case than that in which it was made, and no other purpose than to return it to the court in which it had been originally brought. It related to that case, and that ease alone. It was not intended to affect, and did not in any way affect, this case, which goes upon an entirely different theory, and seeks different relief. The fact that there may be some questions common to both, cannot enlarge the effect of the stipulation in question.
It is also claimed that complainant is estopped from litigating this case in this court by the stipulation of his attorneys, filed in the divorce case of Sharon v. Sharon, in the superior court, waiving a jury, and for the trial of the issues of that case in department 2 of the superior court before Hon. J. F. Sullivan, judge of that department. But this'stipulation, like the other, is only a stipulation as to the course of procedure in that case, having relation to that case, and to no other. Defendant was obliged to have his case tried in some one of the 12 departments of the superior court, and he was liable to have it assigned to any one of those departments for trial. Both parties being satisfied to try it in department 2, they designated that department by stipulation. This was but a substitute for the assignment of the case for trial in the usual mode. It had no other effect than to determine which one of the 12 departments to which it was liable to be assigned should try that particular case, then pending, and ready for trial in the superior court. The effect of the judgment of the court in the case tried in department 2 by. reason of this stipulation, as matter of estoppel, is no greater and no less, and in no respect other, than if the ease had been regularly assigned to that department for trial by the authority of the superior court, without the stipulation, and against the protest of defendant. This stipulation in no degree affects the action of the court as matter of estoppel. *385Neither this stipulation, nor the stipulation to remand to the state court, taken separately, — nor do they in combination, — estop the complainant from proceeding in this case,' nor can they in any respect affect this case.
Tiie effect of the proceedings and judgment in the superior court is precisely what it would have been had that ease never been removed to this court, and had it been tried in department 2, or any other department to which it had been properly assigned for trial, without the consent or any action of the defendant therein. And there was no possible plausible ground, deducible from the terms of the stipulations, for counsel to suppose that the stipulations affected, or that they could in any way affect, any other case than the one in which they were made. Nor did they, in fact, so suppose; for steps wore being continously taken by them, and the counsel of complainant in this case, without objection, while the proceedings were going on at the same time in the case in the state court. The two cases proceeded pari passu in the two courts.
As to the point upon which wo declined to hear further argument, that the bill presents no case for equitable jurisdiction, and that, upon the facts stated, this is but a suit for jactitation of marriage, it is only necessary to observe that, upon the hearing on the demurrer, in which these points were argued, Judge Sabin, of the Nevada district, and myself, gave them the fullest and most careful consideration, and upon such consideration we were satisfied that the case is one proper for equitable cognizance. Our view's will be found expressed in Sharon v. Hill, 30 Sawy. 48; S. C. 20 Fed. Rep. 1. We are now' entirely satisfied with the ruling then made, and adhere to it.
We also, at the hearing, declined to hoar the evidence offered by respondent, under objection of complainant as to its relevancy, to show' that Sharon was, at the commencement of the suit and subsequently thereto, a citizen of California and not a citizen of Nevada, on the issue attempted to be raised, without leave of the court, in the general answer in bar on the merits, by denying the allegation of citizenship in the bill. Wo declined to consider the testimony, on the ground that there was no open issue in the case on that point, the same issue having been made, tried, and finally determined, for this case, on the plea in abatement. We also declined to bear further argument on the question as to whether the issue was still open for consideration, for the reason that it had been before fully argued in the case and decided, and we were satisfied with the decision. Sharon v. Hill, 10 Sawy. 666. We are still entirely satisfied that the issue as to citizenship was conclusively determined, for the ease, on the plea in abatement, and was not open for further consideration on the general issue tendered in the answer in bar. Had the question not been raised and determined on a plea in abatement, it may be that, under the act of 1875, respondent might be entitled to raise the issue in the general answer in bar, and have it determined, with *386the other issues, at the final hearing of the case. But on that point it is unnecessary now to express an opinion.
Where an issue of fact fya,s been presented and determined upon a plea in abatement, and judgment rendered thereon, until set aside, and the issue has been reopened in some regular course of procedure, such determination of the issue is as conclusive and binding in all subsequent stages of the case as if tried and found at the final hearing, and the. issue closed by a final judgment thereon. Conceding that the court had authority to reopen the issue, and allow testimony to be taken, after the time allowed by the equity rules prescribed by the supreme court had expired, there was still but one proper way to proceed, and that was to apply for a rehearing, upon a proper showing, excusing negligence, if any there was, or to set aside the interlocutory decree upon the plea in abatement, and reopen the plea, with leave to take testimony and retry that issue. Even.then the reopening of the issue, granting leave to take testimony, and a retrial of the issue, would be a matter for the exercise of a sound discretion by the court, and not a matter of right. No such application, or any application to set aside that interlocutory decree and reopen that issue, has ever been made in the ease. Such applications should be promptly made or they should not be granted. Seventy-five days, including extensions granted by the court against the wishes of complainant, elapsed before the general answer to the merits in har was filed. During all that time, not only was no such application nor any application made to set aside the decision and interlocutory decree entered therein, and reopen that issue, but none has, at any time since, to this day, been made, and the interlocutory decree adjudging the plea false, and overruling it on that ground, now is in full force, unaffected by any order made, or even by any application for an order vacating it, or reopening the issue. On an application, had any been made, the complainant would have been entitled to be heard. It is not an ex parte proceeding. Giant P. Co. v. California V. P. Co., 6 Sawy. 529; S. C. 5 Fed. Rep. 197.
The respondent not only did not apply for a rehearing on the plea in abatement, but, in the face of the ruling, and of the interlocutory decree adjudging it to be false, and in defiance of it, without leave of the court, denied in her answer the allegations of the bill as to citizenship, and thereby sought, in that form, without leave of the court, to retry the issue. The questionshaving been tried and adjudged on the plea in abatement, and that judgment remaining in full force, the complainant was not required, or expected, to put in evidence upon this point under the general issue. He was entitled to rely on the determination already made, until the issue should be again reopened in some proper form; and especially is this so, since the question of the finality of the decree for this ease had been determined in an early stage of the proceedings, when raised upon affidavits. It cannot be presumed that complainant tried the case on the question of citizen-*387sino in the same manner, or upon the same testimony, as he would have done had the issue been reopened in some proper form. Not only is the view expressed upon this point correct upon principle, but it is the settled doctrine of the supreme court. In Grand Chute v. Winegar, 15 Wall. 371, the eighth plea embraced the same matters which had been already set up and passed upon in a plea of abatement, and the court said in regard to it: “A party having his plea in abatement passed upon by a jury, and found against, him, is not permitted to set up the same matter in bar, and again go to the jury upon it. ” And it certainly cannot make any difference whether it is passed upon by a jury,pr by the court, where no new trial or rehearing has been granted. In the former decision we said: If the question “can be raised again in the general answer, on the merits, there would be no use of a plea in abatement. Such a plea, upon that practice, would only obstruct and prolong the proceedings, and increase the expenses of litigation, without any possible advantage to be gained thereby. The parties are entitled to an opportunity to have an issue once tried and determined. If, through negligence or otherwise, they do not present their evidence, or all of their evidence, the fault is their own, and they must abide the consequences.” 10 Sawy. 669.
The provision of section 5 of the act of congress of 1875, relied on by respondent, that “if it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought,” that it does not involve a controversy properly within its jurisdiction, it shall be dismissed, doubtless means when it shall appear in some proper mode or form recognized by the rules of law and regularly established practice of the court. It does not mean that the point may be suggested at any time, or in any mode, outside the regular course of the established practice of the court, and tried over and over again, whenever and however the party chooses to suggest it. Such a loose mode of proceedings would be intolerable. It often happens that the defect regularly appears in the record; as where there is a want of proper allegations in the bill, but it has not before attracted the attention of the court; on where it appears in evidence, upon the issues properly open for decision. Whenever this is the case, or whenever the defect is made to appear to the court, in any stage of the proceedings, in its established course of procedure, the court will dismiss the case. This was always the rule on questions of jurisdiction, and the statute but gives express sanction to it, and requires its enforcement by the court of its own motion, whether counsel suggest it or not, without, however, attempting or professing to change the regularly established forms of procedure by means of which the issues shall he developed and tried, and by means of which the defect shall be made to appear. It is as important now to the duo, convenient, econQmical, and speedy administration of justice that questions of jurisdiction, where they do not appear upon the face of the bill, should be determined upon pleas in abatement before going at large *388into the merits of complicated cases, requiring long, tedious, and expensive trials, as it ever was. Any other practice would not only be extremely inconvenient, but often intolerably oppressive. We are fully satisfied with the former ruling on the point, and adhere to it. That the issue on the plea in abatement was properly determined in the case there can be no doubt, under the decisions of the supreme court. It is settled by that tribunal that the burden of proof on the plea was on the defendant. De Sobry v. Nicholson, 3 Wall. 423; Sheppard v. Graves, 14 How. 505; Same v. Same, Id. 512, 513. And there being no testimony to support the plea, it was properly adjudged false, and overruled.
Whether a party has the right, under the fourteenth amendment, to elect to retain his citizenship of the state of his birth or adoption, after he has taken np his residence temporarily or permanently in another state, is a question which, under the views adopted, we are not now called upon to determine. But see on this point the observations of the court in Sharon v. Hill, 10 Sawy. 673, and the cases in support of the affirmative of the proposition there cited from the decisions of the United States supreme court. If one has a right to retain his former citizenship after so becoming a resident of another state, then, even upon the imperfect evidence offered by the respondent, and disregarded by us at the hearing, there can be no doubt that Sharon was, in fact, a citizen of Novada at the institution of the suit, and that he so continued.
The only remaining question of law to be decided is as to the effect of the findings and judgment of the superior court set up in the supplemental answer. At the time leave was given to file the supplemental answer the court was of the opinion that the matter set up as res adjudieata constituted no defense to the bill; but as it could not be known what view the supreme court might take, it was thought that respondent, in case of an adverse decree, would be entitled to have the matter in the record in such form as to be available in the supreme court on,appeal, in case this court should be found to be in error upon the point.' The application for leave to file a supplemental answer was therefore granted, and the point left open for further consideration on the final hearing. The court denied the motion for a stay of proceedings till the judgment in the state court should become final, for the reason that to do so, and thus give effect to the state judgment, as res adjudieata, would, in effect, be to arbitrarily turn the complainant over to the state court for his remedy in a matter wherein the constitution and laws of the United States gave him an absolute, unqualified right to seek his remedy in this court. To have stayed proceedings as asked, would have been equivalent, in its results, to dismissing complainant’s bill, and leaving him only such remedy as the state courts afford.
Do the findings and judgment entered therein, set up in the supplemental answer now pending in the supreme court of the state upon *389a suspensive appeal, constitute a final determination of the rights of the parties in sucli sense as to make them res adjudicata and available, as such, in this suit as matter of estoppel ? We are fully satisfied that they do not. The effect of a judgment, final as to the subject-matter litigated and adjudged, is prescribed in sections 1908 and 1911 of the Code of Civil Procedure of the state of California, and is the same as had been established by the decisions of the courts before it was carried into the Code. To constitute res adjudicata, in the sense and with the effect indicated, the judgment should he final, not only as to the court in which it is rendered, but also final as to the subject-matter, and not subject to be set aside on motion for new trial, or on appeal. Judgments are said to be final in two senses: final as to the court in which they are rendered, so as to be subject to appeal; and final as to the subject-matter upon which the judgment is rendered, so as not to be open for further consideration or modification in the tribunal wherein it is rendered, or in any other. This distinction is clearly recognized in the law in this state and elsewhere.
In Hills v. Sherwood, 33 Cal. 478, the court upon this point says:
“A.'judgment may be a final adjudication in different senses. It may be final as to the court which rendered it, without beiny final as to lliegutbjeot-matter. ‘ The last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced in.’ U. S. v. The Peggy, 1 Cranch, 103. Although a judgment may be final with reference to the court which pronounced it, and as such be tlio subject of an appeal, yet it is not final with reference to the property or rights affected, so long as it is subject to appeal and liable to be reversed. ”
Under the Code “a judgment is the final determination of the rights of the 'parties in an action or proceeding,” (Code Civil Proc. § 577;) that is to say, final as to the subject-matter. The Code recognizes the distinction as to judgments final as to the subject-matter and final as to the courts rendering them. Thus, section 936 of the Code of Civil Procedure provides that “a judgment or order in a civil action, exce-pl when expressly made final by this Code, may be reviewed as prescribed in this title, and not otherwise.” “When expressly made final by this Code” means, of course, final as to the subject-matter, - — final and conclusive of the rights of the parties involved. But section 989 provides that “an appeal may be taken (1) from a final judgment in an action,” etc.; “(S3) from an order granting or refusing a new trial.” See, also, section 963. In these sections it is equally olnious that the word “final” means “final” in the other sense, — - “final” only as to the action of the court rendering it. It will ho seen that independent appeals are given in the same case, — -an appeal from the final judgment in the case, and an appeal from an order granting or refusing a new trial therein; and the several appeals are, in practice, frequently taken at different times, the appeal from the judgment being often first taken, and in such eases generally before the motion for a new trial has been acted upon in the court below.
*390Section 946 provides that “whenever an appeal is perfected, as provided in the preceding section of this chapter, it stays all further proceedings in the court below upon matters embraced therein, and releases from levy property which has been levied upon under execution issued upon such judgment.” And section 1049 expressly provides that “an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sgoner satisfied.” By the express terms of this section, therefore, a judgment is not final as to the subject-matter, — is not a final or conclusive determination of the rights of the parties, not only “until the final determination on appeal,” but where no appeal has been taken, — “until the time -for appeal has passed.” Until the time indicated the action is deemed to be pending; that is to say, remains inconclusive, not finally determined, and liable to be changed or altogether vacated and annulled. The action is therefore still pending, and the subject-matter remains sub judice. In Newhall v. Sanger, 92 U. S. 761, the supreme court held that the lands within the exterior limits of a fraudulent Mexican grant, containing four or five times the amount purported to be granted, were sub judice, and not liable to any other disposition until the final judgment of the supreme court, on appeal, rejecting the grant. The judgment in the state court set up is still pending uqjon appéal, perfected, as provided by the statute, in such mode as to stay all further proceeding on it, except to prosecute the appeal and a motion for a new trial. By the express terms of the statute the action is still “pending” and undetermined. The litigation of the matter in question is not ended in the state court. ' It is still flagrant. The subject-matter is still sub judice, and a matter still sub judice cannot possibly be res adjudicata in any‘proper sense of that phrase. To say that a matter sub judice is at the same time res adjudicata would be a contradiction of terms. The two conditions with reference to the same subject-matter cannot possibly co-exist. Consider the consequences that might follow from the opposing view. Should this bill be dismissed on the plea of res adjudicata relied on, and the decree be affirmed on appeal, the judgment in the state court set up might after-wards be reversed, and the ease remanded for new trial, or a new trial be granted in the superior court, when the defendant in this case would doubtless endeavor to set up the decree of this court as res ad-judicata in the case in the state court, and seek a favorable judgment on that ground. Should she succeed, there would be two final and conclusive decrees based upon res adjudicata, where there would have been no final adjudication at all on the merits.
A doctrine that may lead to results so absurd cannot be reasonable, or the true one. But the effect of a judgment of a state court, suspended by an appeal, under the laws of California, is settled by the supreme court of the state in numerous cases, even before the adoption of the provisions of the Code herein cited and now. in force. *391Thus, in Knowles v. Inches, 12 Cal. 215, the court says; “This judgment, suspended by appeal, cannot be considered as conclusive evidence of the fact of title, even without reference to the manner in which it was obtained.” So, in Woodbury v. Bowman, 13 Cal. 635, the court says: “The evidence offered on this point seems to have been the judgment roll in the suit of Mokelumne Hill Co. v. Woodbury, which cause was then pending in this court upon an appeal,” etc. “Wo think it was properly rejected; an appeal having suspended the operation of the judgment for all purposes, it was not evidence on the question at issue, even between the parties to it.” So, also, since the adoption of the Code, in Murray v. Green, 64 Cal. 369, the court says: “While the appeal from the judgment in Porter v. Woodward was pending, the operation of that judgment for all purposes was suspended, and it ivas not admissible in evidence in any controversy between the parties. Freem. Judgm. 328; Woodbury v. Bowman, 13 Cal. 634.” Thornton v. Mahoney, 24 Cal. 569, and McGarrahan v. Maxwell, 28 Cal. 91, are to the same effect. See, also, Glenn v. Brush, 3 Colo. 26, and the numerous cases there cited.
Thus the effect of an appeal upon a judgment of the state courts of California, as res adjudieata, is settled by the decisions of the supreme court, independently of the present provisions of the Code on the subject. But there can be no possible doubt, it seems to us, under the provisions of the present Gode cited, that a case upon appeal is still pending — still sub judice — until finally decided, and that it cannot be regarded as res adjudieata, or as having any effect as evidence. The effect or value of a judgment in the state court is therefore fixed by the Godo and the decisions of the supreme court of the state of California. The effect or value of a judgment of a state court in this court can be no greater than in the statei court, as determined by the laws of the state. Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheat. 234. This being so, it will be unprofitable to examine the few cases cited from other states, arising under a different practice, and presenting different conditions, to support the opposing view.
It also appears by the evidence, and it has been repeatedly stated by respondent’s counsel during the argument of this case, that a motion for a now trial lias been made by defendant, Sharon, in the ease of Sharon v. Sharon, set up in the supplemental answer, which said motion is still pending and undetermined in the said superior court. The judgment in that case, therefore, is also still subject to be set aside in the court of original jurisdiction, and subject to many contingencies before it can possibly be conclusive on the rights of the parties. A new trial may be-granted, oven in the superior court, on the ground of the insufficiency of the evidence to support the findings, upon newly-discovered evidence, and on many other grounds, and the granting of a new trial would put an end to the judgment. If denied in the court of original jurisdiction, there may be, as we have seen, *392a separate and independent appeal, from the order denying a new trial, to the supreme court, and such order may be reversed, and a new trial .ordered, on any of the grounds suggested, and thus the judgment be vacated. .On a motion for new trial, and on appeal from an order denying it, the sufficiency of the evidence may be reviewed, and a new trial granted for want of sufficient evidence to justify the verdict or findings.
The supreme court of California has also recently determined the effect of a motion for a new trial upon the finality of a judgment, under the practice in California, in Gillmore v. American Cent. Ins. Co., 65 Cal. 65, 66, the last volume published; S. C. 2 Pac. Rep. 882. The court says:
“Although no appeal had been taken from the judgment within statutory time, proceedings were pending upon a motion made by the defendant in the case to vacate the judgment and grant a new trial. That motion subjected the judgment to be reversed and made it liable to be set aside. The judgment was therefore not final, in the sense of the stipulation as to the right of the parties affected by it, and could not become so until the motion for new trial ha,d been disposed of. Hill v. Sherwood, 33 Cal. 474. While proceeding are pending for the review of a judgment, either on appeal or motion for a new trial, the litigation on the merits of the case between the parties is not ended; there is no finality to the judgment in the sense of a. final determination of the rights of the parties, though it may have become final for the purposes of an appeal from it.”
To bold that a judgment subject to so many contingencies — liable to be set aside in so many ways — is res adjudicata; to have finally and conclusively determined the rights of the parties, in such sense that they are no longer open to question in any other proceeding or tribunal — would be but little short of absurd. It might as well be held that the mere bringing of an-aetion would conclude the rights of a party to litigate the same subject-matter in' any other jurisdiction. Assuming, therefore, but without deciding the point, the subject-matter of the suit and judgment relied on to be identical with that in this suit, in such sense as would render a judgment final as to the subject-matter, res adjudicata, yet in the present condition of the judgment it is still subjudice and not res adjudicata; and the finding and judgment in no degree estop the complainant from litigating the matter in this case. The defense of res adjudicata is ovérruled.
But if the judgment were final as to the rights of the parties, I am by no means satisfied that the complainant would be estopped by it in this suit. There are many strong reasons why he should not be. But it is unnecessary to determine that question now. I only refer to it because my associate has indicated his views upon the point, and I tm not now prepared to concur iij the views expressed. I therefore reserve my opinion upon the question until it properly arises for judicial determination, and until we can have an opportunity for its full discussion, and mature consideration.
I shall now call attention very generally to some of the salient *393points developed in tbo testimony, and state my conclusions on the material issues of fact, but leave the full discussion of the evidence to my associate.
The great issue of fact in the case is whether the complainant signed the alleged written declaration of marriage set out in the bill. As to tins issue but two parties testify who profess to know — others probably do know — whether he did or not, and these parties are the complainant and respondent themselves, — the apparent parties to the coniracf. The complainant, in the most positive and unequivocal language, denies that ho executed the instrument, or that lie ever saw it, or heard of it, or heard of any claim of wifehood by respondent under it, or otherwise, till about the time of his arrest for adultery, on the complaint of one Neilson, acting in concert with respondent, on September 8, 1883, — more than three years after its date, and more than a year after the stipulated time for secrecy had expired; and that he never, in his life, saw the instrument until he obtained an inspection of it in November following, under the order of one of the state courts. He also testifies that, according to the best of his judgment, the signature to the contract was not written by him. He is as “positive on the pgint as human judgment can dictate.” On the other hand, the respondent as positively and unequivocally testifies that complainant did execute the contract; that she wrote it at his dictation, in his presence, and that they both signed it in the presence of each other. They both testify as to matters in regard to which they, respectively, have actual knowledge, and upon which they cannot possibly be innocently mistaken, and matters which could not well have been forgotten or misrecollected. One or the other, therefore, must have knowingly testified to a falsehood. There is no reasonable ground for escaping Ibis conclusion. This being the case, the duty is devolved on the court of determining, so far as it is possible to do so, from all the evidence, and the intrinsic probabilities arising out of the known or undisputed facts, and facts satisfactorily proved, which party has testified to the truth and which to the falsehood.
The complainant is a well-known business man, of more than 30 years’ standing, as generally and thoroughly known here as any man in the United States. There is nothing to throw a doubt upon his character for truth and veracity, except as it arises out of the testimony in this case directly or inferentially contradicting his own. Of the respondent we know much less, — indeed, little beyond her own account of herself; but as to her, also, there is nothing to impeach her character for truth and veracity beyond the testimony in the case contradictory of the testimony given by herself; the character of her testimony; the unusual and unsatisfactory tone and manner in which it was given; and such intrinsic probabilities and improbabilities as arise out of lier testimony and the other testimony introduced. Conceding, then, for the purposes of the case, that the parties, at the out*394set, stand upon an equal footing as to character for truth and veracity, their naked statements are equally balanced, and we must determine from the other evidence, and the probabilities arising out of it, on which side is the preponderance.
Under the circumstances, the inquiry naturally suggests itself to the mind: To what extent are these parties contradicted or corroborated upon material matters by the direct testimony of other credible witnesses, testifying with regard to the same material facts ? Upon examination of the testimony, I do not find that the complainant, Sharon, has been directly contradicted by other witnesses having positive knowledge of the facts as to any fact material to the case to which he has positively testified; unless upon some points he may be regarded as inferentially contradicted by Mrs. Pleasant, who is as deeply implicated in the conspiracy, if conspiracy there be, as the respondent herself, and, in view of the circumstances disclosed, whose testimony must be taken with a considerable degree of caution. On the other hand, the respondent has been directly contradicted, on many material points, as to her acts performed and declarations made from 1880 to 1883, wholly inconsistent with the idea that at those times she considered herself to be the wife of complainant. Such contradictions in many important matters, which I shall not take time to enumerate, are found in the testimony of Mrs. Bacon, Mrs. Morgan, Mrs. Kenyon, Mrs. Millett, and Mrs. Mary Brackett, and as to an important matter, in some aspects of the case, — the time of the opening of Martha Wilson’s restaurant, — by several gentlemen of unimpeachable character, supported by contemporaneous entries in their account-books. Respondent, it is true, now sneers at all these female witnesses, and indulges in very uncomplimentary remarks concerning them; but' they were at one time manifestly, from her own testimony, more or less intimate with her, and to a considerable extent enjoyed her confidence and society, and to that extent, by her past conduct and acts before the litigation was entered upon, they have her own indorsement. , There is nothing else other than her contradictions, and their association and connection with this case, disclosed in the evidence, to discredit, generally, their testimony. The fact of so many witnesses among her former associates — ante litem motam — testifying directly contrary to respondent upon material matters, about which they cannot well be mistaken, tends strongly to impeach her credibility, and is worthy of serious consideration in deciding the great point in issue, thus otherwise left so equally balanced by the testimony of the two parties themselves. Besides, the whole tone and manner of testifying by respondent, and the inherent character of the testimony given by her, is extremely unsatisfactory. The tendency is not by any means to inspire confidence.
The complainant admits that he has known respondent from August, 1880, and respondent says that she first met complainant in the spring of 1880-, but she cannot fix the date; and, between that time *395and August 25th, that she had several interviews with him, but cannot tell how many, one of which was at the Baldwin Hotel, shortly before she went to the Galindo Hotel, at Oakland. The interviews, 'other than at the Baldwin, were either on the street, near the Bank of California, or at complainant’s office, over the Bank of California. She cannot tell whether the interviews were once a month or oftener. As near as it can be made out from her testimony, she did not go to. the Galindo until some two or three weeks or more after the incident of taking laudanum at tho office of a prominent attorney, which was on May 10, 1880; and sue does not know whether any one of the interviews with complainant took place before the happening of that incident. I think, therefore, if may be assumed that the acquaintance commenced, and all the interviews occurred, after May 10th, and consequently that there were but very few of them between that date and August 25tk. As I understand her testimony, she does not positively identify more than two visits to complainant’s office, which were had at Ms suggestion. At one of them she says that he proposed to give her SI,000 a month and the use of a horse, if she would consent to be his mistress. She so understood the proposition, and declined it, saying he had mistaken her character, and that lie could obtain other women to serve in that capacity for a much smaller sum. She says that he then proposed marriage, which she accepted, and came to meet him again, by appointment, on August 25th; that she arrived a little late, and found complainant somewhat excited and nervous on that account, as he was going to Virginia City, Nevada, on that afternoon; that he had a table with paper, pens, and ink on it, and directed her to sit down and write as 'he dictated, which she did, and then wrote, at his dictation, the instrument in question, signing where he directed; that lie had, a small book in his hand at the time, which he consulted, and seemed to dictate from it, and a number of large books that looked like ordinary law books, from which he read passages showing that such marriages were lawful, and cases in which they had been sustained, and in which the wife had obtain; d property as such; that they stopped and talked, discussing matters from time to time as they proceeded; that it was all written at one sitting, and no part rewritten; that they were engaged in it, it might be an hour, an hour and a half, or perhaps two hours; that when it was finished complainant came round beside her, asked her if she was satisfied with it, and signed it, adding the words, “Nevada, Aug. 25, I860;” that she was surprised at that mode of marriage, and so expressed herself, and said, “That can’t be our marriage certificate, senator;” that complainant said that it was all right, and, as he was going away that afternoon, directed her to take it home and copy it all over nicely, and, when he returned, he would sign the new copy for her, and the rough one then signed he would keep for himself; that she then left with the document, and returned to the Galindo Hotel, at Oakland, and she supposes he went to Virginia. At *396all events, she never saw anything more of him till some time after September 9th. This is her account of the courtship and marriage, which is positively denied by complainant. There is no evidence of any kind that she ever made a neat copy for them to execute on complainant’s return, as she was directed to do, or that any copy was ever executed for complainant, or that the matter of making the neat co]3y was ever afterwards alluded to between them. The books alluded to were doubtless intended to be the pocket edition of the California Civil Code and some volumes of reports. But Mr. Dobinson, the private secretary of complainant, and who for years occupied. Sharon’s rooms in that capacity, and who was perfectly familiar with all furniture and fittings up, testifies that no such books as described were kept in the office; that he would have seen them had they been there; and that he did not see any such there at that or any other time. They could hardly have been in the office without his knowledge, and this affords a strong presumption that no such books were there, and, to that extent, is in conflict with the respondent’s testimony on this point, and supports the testimony of complainant.
I think it must be admitted that there is a strong intrinsic improbability that such an extraordinary contract, upon so short, casual, and exceptional an acquaintance, without consultation with or knowledge of her brother and numerous other relatives and friends, should be clandestinely entered into in such an extraordinary manner, by an honorable and virtuous young lady of 27, so intelligent and shrewd, and so well acquainted with the world, as the respondent has demonstrated herself to be. And it is no less intrinsically improbable that a man of complainant’s experience, wealth, and position should enter into so strange a contract, with an honest purpose of honorable marriage, while there was no better reason for departing from the ordinary course of matrimonial alliances than has yet been suggested; and it seems, also, still more improbable that a man of complainant’s knowledge of the world and shrewdness would, at his age, place himself in so embarrassing a position, — put his wealth and position at such hazard, — from the basest of motives, and with a deliberate purpose, so infamous and shocking to the moral sense, of deceiving respondent and accomplishing her ruin. A motive and purpose so infamous ought not to be attributed to a man hitherto holding a respectable position in society — such- a position as would lead an intelligent lady of good connections and social position, knowing his standing, to marry him — against his solemn oath to the contrary, except upon testimony reasonably satisfactory to the mind; certainly not upon the unsupported testimony of an unusually intelligent and experienced party, capable of entering into a secret arrangement so extraordinary, upon so slight an acquaintance of exceptional character, without consulting with or the knowledge of her numerous relations and friends, including a brother, who had theretofore been to her all that a brother could be to a sister, and *397who wore readily accessible, and in habits of daily intercourse with her, — that brother, at the time, living in the same house with her, and serving as her protector. Again, according to respondent’s own account, this interview and transaction having taken place somewhere from noon and afterwards, on August 25th, at its conclusion the parties separated, she going to her residence at the Galindo Hotel, in Oakland, and complainant, as she supposes, to Virginia City, Nevada, leaving by the 3:30 p. ai. overland train, tbe only means at that time of travel between San Francisco and Virginia.
Bespondent remained at the Galindo Hotel until it was destroyed by lire, on or about September 9th, when she returned to the Baldwin Hotel, in San Francisco, and remained till the latter part of September. The complainant remained in Virginia until some time after the destruction of the Galindo Hotel, in September, and returned to San Francisco between the date of that event and September 25th, the date not now being definitely fixed. He called on respondent, she says, at the Baldwin, before September 25th, but she cannot say how long before. It was probably but a short time before September 25th, for on that day complainant was active and urgent for an interview, he having on that day written her several notes, some of them in evidence, — I think four in all, — seeking an interview, addressed at the heading, “My Dear Miss Hill.” And immediately after that she removed to the Grand Hotel without even consulting with her brother, who teas with her at the Baldicin, or informing him of her contemplated movement. Upon learning of the change, however, he immediately followed her to the Grand, and for her protection took up his residence at that house, thereby manifesting the deep interest he felt in her welfare. During the whole month, from the date of the alleged marriage contract, August 25th, to September 25th, there was no communication by word, letter, or felegraph between complainant and respondent, except the single call by complainant at the Baldwin at some time after his return from Virginia City, and before September 25th, the date of which is not fixed. Bespondent did not oven inform complainant of the burning of her residence, and her consequent removal. She did not intimate to her newly-acquired husband where she could be found on his return from Virginia City, and ho was compelled to send his Chinese servant to Oakland and elsewhere to learn of her whereabouts; so that it is probable that the meeting at the Baldwin was not very long prior to September 25th, when complainant became so active and urgent for an interview. Thus a month or nearly so intervened between the entering into this extraordinary marriage contract and any further communication, or effort to communicate, between them. It does not appear that prior to complainant’s return from Virginia City there had been any consummation of the marriage by marital intercourse.
The respondent, according to her own account, did not take sufficient interest in her newly-acquired husband to communicate with him, or *398to inform him of her misfortune in being burned out, and compelled to remove, and where he could find her on his return; and gave as a reason for her neglect that she did not conceive it necessary for wives to run after their husbands, and that she supposed he would find her, if he wanted to, on his return from Virginia City. There was a daily mail, and at all times telegraphic communication, between San'Francisco and Oakland and Virgina City, and yet nothing passed between these newly-married parties during nearly or quite the whole month usually designated as the “honey-moon,” and under circumstances wherein we should certainly expect some written or other communication. These first private notes of the complainant after the alleged marriage were addressed,,in the heading, “My Dear Miss Rill,” and only intimated the desire for an interview for her benefit,, saying: “Something I want to tell you about of interest to yourself.” There is nothing in the notes breathing the spirit of a husband newly married, or even of half a century’s standing. To my mind the conduct attributed to both parties by the respondent, during the month following the alleged marriage, is intrinsically improbable, had there been a marriage contract as claimed. I cannot reconcile such a course of conduct with my observation and experience of the course of human action, and the influence and operations of human affections. It seems incredible. It is, of course, possible that two parties can be so constituted that they could make such a contract, and conduct themselves under the circumstances and in the manner indicated during the month following marriage; but it is highly improbable, not to say utterly incredible, even when considered by itself, unaffected by other collateral facts; and such improbability is to be considered, and it should receive its due weight in connection with the other facts developed in the case.
We now come to the period from September 25, 1880, to November, 1881, while respondent resided at the Grand Hotel, and while the relations of the parties were most intimate, harmonious, and cordial; and afterwards, from the time of respondent’s expulsion- from the hotel, in December, 1881, until September 8, 1883, when complainant was arrested on a charge of adultery upon the complaint of Neil-son, and at the instigation of respondent, by means of ivhich publicity ioas first given to respondent’s claim of wifehood. My associate has fully discussed the evidence and facts relating to this period, and I shall not go into particulars, but only state some facts appearing in the evidence, with a view of drawing the proper inference therefrom.
One distinguishing fact is that the alleged marriage was kept secret, not only during the two years provided for in the contract, but for a year or more afterwards, as it was never made public until the time of complainant’s arrest, September 8, 1883. Secrecy is always a badge of suspicion and fraud, and especially so in matters of interest to society, and which public policy and the laws of well-regulated society require to have general publicity. Withholding knowledge of the *399relations of the parties from the public, and especially from those who have a right to be informed upon the point, and clandestine sexual intercourse, are strongly indicative of meretricious, and not marital, relations. And to this effect are all the authorities upon the subject. The marriage and intercourse, in this instance, were kept profoundly secret from the public, and, so far as possible, from respondent’s brother and other near relatives; and, so far as wo know, only revealed, if at all, to a few who, to say the least, in view of the known facts, are of questionable standing, and who occupy an unenviable relation to the case, — parties to whom such a revelation was not likely to he made in a case whore a contract in good faith required secrecy, and where if was studiously concealed from those having a right to know, asid who would be quite as likely to keep a secrob, if desirable to do it. Those relatives could, certainly, have had no motive to defeat the election of complainant to the senate after he had become so nearly allied to them by marriage. There has been introduced in evidence a number of letters and brief notes from complainant, addressed to respondent while she lived at tho Grand Hotel, from Sep. teraber, IS80, to November, 1881, and during the year when the relations between the parties were the most intimate and cordial, — while respondent claims that they were happily, though secretly, cohabiting together as husband and wife. Of all these letters thus introduced, and if any were omitted it must be presumed that respondent would have offered all those favorable to her case, five appear to be addressed “My Dear Wife. ” These are positively declared by complainant to be forged and spurious, at least so far as the word “wife” is concerned. But, waiving a discussion of that point in this opinion, it having been covered by my associate, not one of these letters, aside from the word “wife,” contains a word that suggests the relation of marriage, or breathes the spirit a husband would be expected to manifest in a correspondence, however cursory, casual, or unimportant, with his wife. That word is singularly inconsistent with the tone and matter of tho rest of these letters.
No satisfactorily authenticated word or act on the part of complainant, indicating the relation of husband and wife, or inconsistent with meretricious relations, during the whole three years from August 25, 1880, to September 8,1883, appears in tho evidence, or supported by any direct evidence, other than that of the respondent herself. On the contrary, the letters all breathe a different spirit, — sometimes jocose, sometimes all business, and all, except tho so-called “Dear Wife” letters, aro addressed “My Dear Miss Hill,” “My Dear Allie,” or “My Dear A.” The letters of earliest date — those written in the ardor of the waning honey-moon — only rise to the pitch of “My Dear Miss Hill.” But these letters are fully discussed by my associate. I only refer to them for tho purpose of drawing an inference. There does not appear to be any good reason why on one day complainant should address hi@ wife “My Dear Miss Hill,” and on another day, *400“My Dear Wife;” or why, in their secret correspondence, intended for no other eyes, a husband should not always recognize his wife as wife. If he could trust her with some such letters, and with the keeping of the' marriage contract, why not ivith more ? But during all this period these parties were dealing with each other in money matters, even in small amounts, at arms-length. As early as December -5, 1880, but little over two months after going to the Grand, there was a stock transaction, wherein respondent drew a memorandum, which complainant signed, acknowledging that he held 100 shares of Belcher for “Miss Hill, at $200 per share, to he paid for on delivery of the stock.”1 This wag a private transaction between them, unknown to anybody, and requiring no mask. Why this particularity and care in carrying on and concealing under false names a business transaction between husband and wife ? So, also, several of the notes from complainant to respondent, introduced in evidence, relate to moneys and accounts between the parties, which were nicely calculated and balanced to a cent, on the apparent basis of $500 per month, the amount which respondent testifies her husband was paying her. This was not merely pin-money, but funds out of which the wife of a man alleged by respondent to be worth many .millions of dollars, with an income of from $30,000 to $100,000 per month, was to pay all her expenses, hotel bills, clothing, everything, and out of which she says she also-purchased many articles of apparel for her husband, and the account regularly balanced and settled, as though they were dealings between utter strangers.
Yet respondent was offered, according to her own testimony, double the amount to take the position of mistress, she being regarded as twice as valuable in that capacity as in the capacity of wife. Bo, on November 7, 1881, the complainant paid the respondent $7,500 in. cash, and notes payable to the order of “Miss Hill,” the balance of which has been recovered by respondent against complainant in a state court since the commencement of this suit. This the respondent claims to have been paid in settlement of a prior money demand. Complainant denied it, and he accounted for it in that suit on an entirely different theory. But these facts show the course of dealings in money matters between these parties at the very time when their marriage relations, if any such existed, were most harmonious and affectionate; while there was no occasion between them for masking; where no one else had occasion to know anything about the transactions; and even, though private, they were dealings, ostensibly, if not in fact, between these parties in the names and character *401oí William Sbaron and S. A. Hill, and not in the names of Mr. and Mrs. Sharon, in the character of husband and wife. They were, ostensibly, dealings at “arms-length,” in money matters, sometimes of small amounts, between strangers. This is certainly not the ordinary course of transactions between husband and wife, brought up and educated in this country, imbued with American ideas; and, in view of our laws in relation to marriage, the legal stains of marital property rights and marital and domestic polity, we naturally look for some recognition of the relation of wifehood from the husband in private transactions, correspondence, and intercourse — domestic, money, and otherwise — between husband and wife, oilier than the very few instances of the use of the word “wife” in the address of casual letters. Wo find none on the part of complainant in the relations between him and respondent, so far as they are disclosed to view, — not one instance.
Turning from the conduct of the complainant to that of the respondent during all the time from August 25, 1880, till about a year after the time for secrecy under the clause in the contract had expired, we find it equally barren of any well-authenticated act or word of respondent, public or private, in complainant'1 s presence, or in addressing him by letter, indicating that she during that period, at any lime., regarded herself as the wife of complainant. No witness ever heard her address complainant as husband, or any language indicating the existence of that relationship. We have a number of her letters addressed to complainant during that time, — private letters, intended for no ,eye but his, — and be alone was interested in keeping the secret,, and could certainly bo trusted with an endearing, wife-like letter,— be trusted with the keeping of his own secret, — but none containing the word “husband,” or its equivalent, or any reference to matters between husband and wife, which either would desire, for that reason, not to have brought to the knowledge of others. All of these letters are addressed “My Dear Mr. Sharon,” “My Dear Senator,” or “My Dear Sen.,” — not one “My Dear Husband.” And there is not a line or word in any of them that indicates any idea upon respondent’s part that she was the wife of the party to whom they were addressed. There are appeals of the most passionate and pathetic character to his sense of justice, to his generosity, to his manhood, but not one in the character of wife, — not one addressed to him in the character of husband. But my associate lias fully discussed these letters, and I need not dwell upon them further than to draw the natural inference, and to say that they are, in my judgment, wholly inconsistent with the idea that, at the time they were written, she thought or supposed she was the wife of complainant. It is inconceivable to m'e that a woman of the spirit and temper everywhere displayed by respondent, conscious of honor and wifehood, under the circumstances giving birth to some of these letters, could have written them to her husband without reminding him, at least, of the sacred tie binding them together., *402Surely, to a man susceptible to the influences sought to be brought to bear upon him, an appeal to his honor, generosity, and manhood would not be less effective coming from a wife, in the character of a wife, than from a mistress, in her character of mistress. This failure to appeal to complainant as husband, to address him as husband, and to claim the rights of a wife, in these private letters, written under the distressing circumstances under which respondent found herself, is inexplicable upon any theory that she at that time supposed she was his wife. The claim that she acted under the advice of the aged colored woman, Mrs. Pleasant, is incredible and unsatisfactory. All her womanly instincts, and her resolute and dominating spirit, in which she is by no means deficient, would have rebelled against such a submissive and pusillanimous course.
Again, she states that on one occasion she concealed herself behind a bureau in her husband’s bedroom, and remained there while he and another women occupied the bed together, and that she was greatly amused at what she witnessed. Is it credible that a high-spirited and passionate women, as respondent claims to be, and as she has on various occasions shown herself in fact to be, conscious that she was a scorned and grossly injured wife, could quietly witness such an exasperating act on the part of her husband, and tamely submit, and that the incident would greatly amuse her ? So, on another occasion, according to her own testimony, she concealed a young girl of 18 behind the same bureau, in order that she might hear her husband call her wife while she and her husband went to bed together. What need of taking such means to satisfy Mrs. Pleasant, or anybody else, of her being the wife of complainant, if she at that time had the evidence of the fact in a genuine written contract, supported by the so-called “Dear Wife’’’letters, then in her control ? Are these the acts of a person conscious of being the wife of the party under such espionage ? But what was said on that occasion, in those moments of dalliance, is not in evidence, and we do not know that she, even then, drew from complainant’s lips the coveted appellation, “wife,” under circumstances where the most endearing terms were likely to be used.
So far as is shown by the evidence, therefore, there is no act or declaration, written or spoken, in the respondent’s treatment of complainant during these three years, indicating that she supposed herself to be his wife, or that is not more consistent with the idea that those relations were meretricious rather than marital. The fact that she used complainant’s carriage, as she says she did, is cited as evidence of treating her as a wife. But if there be any force in this, it is broken by the further fact, stated by herself, that complainant’s mistresses have ever since been accustomed to freely use the same carriage, and be driven by the same coachman, in the same manner. Complainant’s admitted mistresses, therefore, seem to have been treated alike, and put upon the same footing, in this particular, with *403respondent herself. But I need not dwell on points so fully discussed by my associate. Is it too much to say that the whole course of conduct towards respondent, and on the part of respondent towards complainant, during those three eventful years, is in the highest degree improbable, had they been husband and wife ? Is it possible that a husband ami wife, cohabiting harmoniously, could so conduct themselves towards each other, and that during the first year of their married life ?
There is strong evidence on the face of the alleged contract itself Unit it was written over the name of complainant after the signature had been written, and that parts of if, at least, were written alter the paper was folded, and the signature before folding, showing that the signature must hare been first written. Without enumerating the points, or discussing again the particulars pointed out by my associate leading to that conclusion, there is enough in the appearance to render it, in a very high degree, probable, when considered by itself alone, without reference to the testimony bearing upon other points, that such is the fact. , So, also, upon comparing the signature with hundreds of signatures of complainant written from 1875 to 1883, conceded to bo genuine, and the testimony of experts pro and con, it appears to be a better signature than any other of complainant’s in evidence. It is smoother, more flowing, regular, artistic, and less cramped than the others admitted to bo complainant’s. There is not another in all the genuine signatures in evidence that contains all the distinguishing characteristics of the disputed signature. So the fact appears to me to bo, after a careful comparison of the disputed signature with all others in evidence, in the light of export testimony, and even without such light, some of the signatures having been enlarged by the microscope and photographic process, in order to show the prevailing characteristics more distinctly.
Several paying tellers in banks, including the Bank of California, who had paid hundreds and probably thousands of complainant’s chocks, and others long in his employ, and having the best opportunity to become fa,miliar with his signature, except his former employe, Cushman; also a number of the most skillful experts,---testify that the disputed signature in this case is not the genuine signature of complainant, Sharon. There are others besides Cushman, of no special standing as experts, having less reason to he acquainted with complainant’s handwriting, and Gurnpel, who is a competent expert, who testify that they believe it to be genuine. To my eye, although I do not profess to be an expert, after a long and thorough examination and careful comparison of the numerous signatures in evidence claimed to most nearly resemble the one disputed, — there are over 3,000 in evidence, — in the light of all the expert testimony, it does not appear to be the genuine signature of complainant. There is one remarkable fact that attracts attention: There are several examples of signatures written by the expert Gumpel, at different times, at the *404request of different parties, professedly in imitation of complainant’s signature, and written from memory, without any signature before him. The signatures thus written, as they were written, and copies of them enlarged under the microscope and by photographic process, are in evidence; and to my eye, after a careful, studious comparison, there is not one of them written by Gumpel that is not more like the disputed signature than any one of all the numerous admittedly genuine signatures of complainant. Every one of those written by Gum-pel contains all of the several peculiar and striking characteristics of the disputed signature, while not one of the genuine signatures of Sharon does. Some of Sharon’s signatures contain one, and some another, of the peculiar characteristics of the disputed one; but no one contains all, or nearly all, of those characteristics, as Gumpel’s do. This striking resemblance between the imitations of Gumpel and the disputed signature may-result from the fact, if it be a fact, — but' whether it be a fact or not we do not know, — that Gumpel took the disputed signature, assuming it to be genuine, as his exemplar, and practiced his imitations from that. If this was done, it would intelligently account for the similarity. In that case, however, it shows conclusively that Gumpel at the time fully appreciated all the peculiar characteristics of the disputed signature, and incorporated them into his imitations. That the peculiarities are found, both in the imitations by Gumpel and in the disputed signature, it seems to me, when pointed out, if not before, must be clearly apparent to any tolerably correct and appreciative eye.
The document, it is conceded, was written by respondent, and is alleged by her to have been written at one sitting, no part having been written over, and with interruptions at various points by conversation, — discussing the points as they rose during the writing,— the time occupied being about an hour and a half, or perhaps two hours. It was manifestly written with elaborate care in its mechanical execution. It is by far the best and most artistic specimen of respondent’s penmanship exhibited in evidence. Not a word had to be erased, added to, corrected, or rewritten, except, in many instances, to shade more heavily, and apparently with different ink. I think the experience of every one familiar with such work will suggest that it is highly improbable that one could dictate from a book, and another, not accustomed to writing from dictation, sit down and write, so extraordinary a document of such length, while carrying on a conversation discussing the- points, legal and otherwise, arising as they went along, without a single mistake requiring correction; especially so, when the last four lines are condensed into a smaller .space by omitting several words found in the other corresponding parts of the contract, requiring, to some extent, a reconstruction of the sentences, and also by contracting others, as by using the character for the word “and,” in order, apparently, to accommodate the .matter to be inserted to the available space; and neither the party *405dictating nor the party writing would be likely to know in advance how much it was necessary to contract and condense. If this contract was written in the manner and under the circumstances stated, I think it must be conceded that it is a i'eat of accurate work that must attract attention, — a very extraordinary performance.
The ink of the signature appears to be different from the ink in which the contract is written, while there seem to be two kinds of ink in the contract, making three in all. According to Dobinson’s testimony, but one kind of ink was in the office, other than copying-ink and rod ink; and, according to Piper, the ink was not of the kind used in the office; and the inference arises that it is highly improbable that the instrument could have been written in complainant’s office, or in the manner as stated by respondent. Taking the document itself, as it appears upon its face, comparing the signature witli the numerous genuine signatures of complainant -in evidence, in the light of the export testimony, and of the testimony of respondent, as to the circumstances and mode of its preparation and execution, and tho positivo testimony of complainant, unequivocally denying the execution of the contract, and considering all the testimony directly bearing upon this point, without reference to collateral testimony on other points in the case, and I think, to any candid, unprejudiced mind, accustomed to consider evidence, and able to appreciate the relation of one set of facts to another, it will appear to be in the highest degree improbable that this signature to the alleged marriage contract is the genuine signature of the complainant; and, whether the signature be genuine or not, still more improbable that it was subscribed to the alleged contract after it was written. It further seems highly improbable that respondent should have confided so important a secret as the marriage contract to such persons as the two colored women, Mrs. Pleasant and Martha Wilson, to Yesta Snow, and Nellie Brackett, and have concealed it from her brother, uncle, aunt, and other much more reputable friends, having a far greater interest in her -welfare. It is also highly improbable that her counsel would have failed to call her friends, and, at least, offer to show their knowledge of the contract, as a part of the res gestee, had it been exhibited to them, or had any knowledge of its existence ever been brought to their notice. Their absence from the witness-stand, and from any sort of connection with this trial, is extremely significant. Counsel for respondent were not at all backward in offering, and vehemently pressing upon tho attention of the court, any testimony supposed to be favorable to their client’s cause. This failure by her to produce the contract for the inspection of respondent’s friends, as a vindication of her conduct, which caused them great uneasiness, raises a violent presumption that it was not at the time in existence, and gives rise to a further strong improbability that the contract is genuine.
The discussion of tho “Dear Wife” letters I shall leave wholly to my associate.
*406While section 75 authorizes the making of a “declaration of marriage” substantially in the form of the one in question, section 77 makes the positive additional provision that “declarations of marriage must be acknowledged and recorded in like manner as grants of real property.” There is no exception. The declaration in question is neither acknowledged nor recorded, and in this important particular fails to conform to the statute. If the parties had the Code before them when this contract was drawn up, as stated, this provision, being on the same page, could not have escaped attention. It provides certain means of proof which public policy demands in matters so important to the interests of society. There surely could be no good reason for not having it acknowledged, even if it was not desirable to record it. There would then have been valid proof on its face of its genuineness. The fact that the declaration is neither acknowledged nor recorded, as is expressly required by the very statute under which it purports to have been executed, raises an implication against its genuineness, and affords another improbability that it was drawn and executed in the manner alleged by respondent. Surely, when the statute itself provides for, and in the most positive, mandatory terms requires, the evidence of the genuineness of the instrument indicated, it is not too much for the court, in the absence of both such acknowledgment and record, to insist that the other evidencé of the genuineness of so extraordinary a contract of marriage should be of the most indubitable and satisfactory character.
To recapitulate the results thus briefly suggested by the evidence more fully elucidated by my associate: We start with a direct irreconcilable contradiction between the complainant and respondent as to the execution of the alleged marriage contract, one affirming and the other denying its execution, and the point to be determined is, which is right? Conceding the parties prima fade to stand upon an equal footing as to character for truth and veracity, the question of veracity between them must be determined from the other evidence in the case. There is no other direct evidence upon the principal fact in issue, and we cannot know, absolutely, where the truth lies. The scale must therefore be turned by the intrinsic probabilities arising out of the known facts, considered in their relations to all the other evidence in the ease, and all collateral facts disclosed, from which the truth may be inferred.
We have, then, these several enumerated improbabilities, contradictions, and other circumstances fairly suggested by the evidence:
(1) The improbability that complainant, a man of experience, of known intelligence, reared with ideas such as prevail in this country upon the subject, should enter into so extraordinary a contract, in the extraordinary way indicated, with honorable intentions, without a stronger motive than any suggested for departing from the ordinary course in entering into matrimonial alliances; and the greater improbability that he should do it with the basest and most infamous *407purpose of deceiving, and thereby ruining, the respondent. Such infamous acts should not bo attributed to him against his unqualified, positive denial, except upon evidence clearly satisfactory.
(2) The improbability that an honorable and virtuous woman, of the respondent’s intelligence, spirit, and experience in the ways of the world, in easy pecuniary circumstances, as she claimed to be, of respectable connections and good social position, upon so short an acquaintance of so exceptional a character, without consulting her brother,- — one who manifested so much interest in her welfare, — or other near relatives and friends, should enter clandestinely into so extraordinary a contract, in so extraordinary a manner.
(3) Had there been executed a contract of the chara cter alleged, in the extraordinary manner stated, the improbability that both or either of the parties would, or even could, have conducted themselves with respect to each other in the way we know they did during the month, or nearly the whole month, following the execution of the contract,— a course of conduct wholly at variance with our experience of human action, and the influence and operation of human affections and human passions.
(4) The improbability that respondent would fail to make her marriage contract, if any there were, public for two years after its repudiation by complainant, who, having violated and repudiated the whole contract himself, could no longer expect respondent to comply with its requirements; and the further great improbability that after her expulsion from the Grand Hotel, and for a year after the time prescribed for secrecy bad expired, she would neglect to make the contract public, and claim her rights under it; especially so, where the ignominious position in which the respondent was placed called loudly for publicity; and the still further improbability that a proud-spirited and resolute woman, like respondent, would quietly submit and suffer in silence, under the circumstances of contumely in which she was placed.
(5) The improbability that the private correspondence of a husband with his wife, intended for no eye but ber own, should generally be addressed, inside, to ber by ber maiden name, and in no instance manifest any of the sentiments which would be expected in letters from a husband to his wife, and, in the few instances in which he is claimed to have addressed her as “My Dear Wife,” the word “wife” should be the only one in the letter indicative of that relation, and be inconsistent in tone and matter with every other part of the letter.
(6) The improbability that, during all the three years next succeeding the date of the alleged contract, there should be no letter addressed by respondent to complainant, and no authentic instance of a verbal communication between them wherein respondent should address complainant as husband; no instance where there would be some claim or intimation that she considered herself as the wife of *408complainant, or in which some sentiment or thought should be expressed, from which it can be inferred that she entertained the idea of wifehood, while a number of letters are shown — in fact, all in evidence — which, in matter and form, are wholly inconsistent with the idea that she considered herself the wife of complainant.
(7) The improbability that during the time of a cordial and harmonious cohabitation as husband and wife, if such there was, the parties should at all times deal with each other, in money matters, at arms-iength, and account together from time to time, balancing to-a cent on the apparent basis of $500 a month allow'anee, and that out of this pitifully small sum, comparatively speaking, the wife of a man of so great wealth should be required to pay all her expenses, rent of rooms to live in, hotel bills, clothing, ornaments, and other personal expenses incident to a lady in good society, when that husband had, before marriage, offered to respondent double the allowance to live-with him in another capacity, of less respectable character.
(8) The improbability that respondent’s important and vital secret should be confided to such parties as Mrs Pleasant, Martha Wilson, and Yesta Snow,, whose positions, in the most favorable aspects in which they can be viewed in connection with the circumstances developed in the testimony, are, at least, equivocal, and have been concealed from her brother, who had theretofore been to her all that a. brother could be to a sister, and who remonstrated with her against her association with complainant; also from her uncle, who had manifested so great an interest in her as to threaten physical punishment to complainant; from her aunt and her husband, and respondent’s other relations and friends, and under the circumstances of ignominy in which she was placed, if revealed to them, that they, or she herself, should have concealed it so long from the public.
(9) The great probability, from the appearance of the alleged contract, and the intrinsic evidence disclosed on its face, that it was written after the writing of the signature, and after the paper had been folded; and the further great probability appearing from a comparison of the signatures to the alleged contract with numerous genuine signatures of complainant, and from a consideration of all the testimony bearing upon the point that the signature was not, in fact, written by complainant.
(10) The great probability that respondent’s veracity cannot be relied on, from the fact that respondent is substantially contradicted by Dobinson as to there being books of the kind she mentions at the time of the alleged execution of the marriage contract in the office of complainant, by other credible witnesses as to the date of the opening of Martha Wilson’s restaurant, and that she is directly contradicted srs to the numerous acts performed and declarations made by her in 1880, 1881, and 1882, about -which neither can be mistaken, wholly inconsistent with the idea that at that time she supposed she was the wife of complainant, by Mrs. Morgan, Mrs. Millett, Mrs.. *409Jlonyou, Mrs. Bacon, and Mrs. Brackett, thereby discrediting her testimony on material points; also, the improbability arising out of the unsatisfactory character of the testimony given by respondent, and the unsatisfactory tone and manner in which it was given.
(11) The improbability as to its genuineness arising from the fact that the alleged declaration of marriage was not “acknowledged and recorded in like manner as grants of real property,” as is expressly required that it should be by section 77 of the Civil Code.
(12) Secrecy is always, as we have seen, and especially in matters which the good of society and public policy require to be made public, a badge of suspicion and fraud The secret acts of the parties in this case are indicia of meretricious, and not marital, relations, and give rise to a further probability that there was no genuine marriage contract. ■
Without going over the particulars of the evidence so ably and satisfactorily discussed by my associate, I find these intrinsic improbabilities, probabilities, and these other weighty considerations disclosed in the case, to he opposed to the testimony of respondent; and I am wholly unable, on the other hand, to find any sufficient deductions from the testimony in the case to counterbalance them. In my judgment, the weight of the evidence, even as presented in the case, without an inspection by the court of the original documents, largely preponderates in favor of the complainant, and satisfactorily establishes the forgery and the fraudulent character of the instrument in question.
It would have been far more satisfactory to the court if the original documents themselves had been introduced in evidence, instead of more photographic copies, or if the court could have been permitted to inspect the originals; but this could not be dono without compulsion, or upon such conditions as respondent and her counsel themselves saw fit to prescribe, and to which the court could not submit. We have done the best we could, in view of the disadvantages under which we labored, in this particular, and if the respondent has suffered hom a want of inspection of the originals by the court, and nearly all the witnesses, — all except the witness Piper, — it is the result of her own and her counsel’s acts. The inference that must be drawn from withholding an inspection is that their production would be injurious to respondent’s case, and this inference only makes more certain the correctness of our conclusion, which is sufficiently obvious without its aid.
I am satisfied, after a most laborious and careful consideration of the evidence, that the instrument in question, the so-called “Dear Wife” letter in ink, and the other “Dear Wife” letters, the latter at least as to the word “wife,” are not genuine; that they are forged and fraudulent; and that the alleged declaration of marriage set out in the bill ought to be canceled and annulled as a forgery and a fraud.
The analysis of the evidence by my associate is so searching, ex*410haustive, and satisfactory, and his reasoning so convincing, that no further discussion can be desired. I feel that I can add nothing of interest, or that will give additional force, to the argument, and but for the great importance of the case, and the wide-spread public interest manifested in it, I should have remained silent. Without further observations, therefore, I concur in the conclusions on the material points reached, in the line of reasoning by which they are established, and in the decree ordered.
As the case was argued and submitted during the life-time of complainant, who has since deceased, the decree will be entered nunc pro tunc, as of September 29, 1885, the date of its submission, and a day prior to the decease of complainant.
In the transcript of the short-hand notes of testimony reported by the master the price appears $200, there being no point between the 2 and the ciphers. This must bean inadvertent omission, for it is a matter of public history and notoriety that, at that date, the value of Belcher stock was, in fact, only about two dollars per share,_ as a reference to the official records of the San Francisco Stock and Exchange Board¡ and the daily published reports of sales, will show. But I take the price as I find it in the record. . S.