Bowman v. Little

Syllаbus. the amount fixed us and that allowed decreee But $28.26. inasmuch as the Linthicum transaction inwas April, 1896, interest on that sum and on the balance of $875 would amount difference, to much more than that and hence we will not decree, disturb the as the is not com- appellee plaining it. Mr. Mrs. with interest on Day Davis charged the fertilizer dif- much more than the accounts,-amounting $28.26, ference of in- and it would her have been to allow proper terest. Mr. have income from Day had the appellants the farm nth, since March no further in- therefore 1897, terest is to be added Mrs. The Davis. con- against appellants tend that at least part of should as they be retained $200 claim that Ebert did not all the what he did pay rent. Just pay doubtful, somewhat but he and a new Mr. made Day agreement on September 1st, to which Davis was Mrs. in no wise a and there party, is too much about uncertainty the transaction to the Court in justify allowing any portion that sum. We will therefore affirm the decree.

Decree affirmed, appellants pay

the costs. (Decided 20th, 1905.) June CATHARINE E. BOWMAN vs. A. CHARLES LITTLE ,

et al. Administrators, and LETTIE E. BOWMAN. Presumptions Marriage Legitimacy—Strict Requited Proof Marriage Antecedent Subsequent When Invalidates Formal Mar- ge—Sufficiency ric Evidence—Declarations—Marriage Certifi- Identity—Harmless Errors. cate—Proof of question formal whether a is valid or not cannot be tried like question independent presumptions, other of fact which is presume for the marriage, law presumption will favor of and this satisfactory disproof. must be met with distinct and When proved it is that a man was married to a lega certain woman ceremony issue, and had and another woman claims that the man had previously her, been married to must be strict of the alleged fact, presumptions antecedent an actual because the of law legitimacy. are in favor of innocence

VOL. IOI vs. 27i (cid:127) Syllabus. Md., Hagerstown, death of one Bowman of After the G. Walter ceremony, legal widow, by leaving a a to whom he had been married child, woman, alleged plaintiff, she was the law- the a another and establish a his To ful of Bowman arid claimed share of estate.. widow Camden, clergyman in New the of a her she offered certificate George W. Bow- setting one Jersey, forth that in he had married Md., alleged McGranagan, to be Hfleystown, to man one Catharine testimony had plaintiff; plaintiff’s that Bowman the also the mother daughter; she visited them her that he married her -that had told had house; they living and also the days for few when were at a certain a plaintiff employed physician the that when to attend a Held, there is no that since had stated that she was his wife. Bowman person who was the identical evidence that the deceased Bowman was then who was that the the woman married in Camden and was insufficient, married, presumptions legally evidence is to rebut legitimate bigamy issue is that Bowman did not commit and that his by proof alleged antecedent to strict the fact and established marriage. parties were mar- is not in itself that certain certificate A parties they the identical but there must be also evidence that were ried proved Identity be question marriage is at cannot of whose issue. necessary to by it is of one of the a case where admissions presumptions legitimacy. of innocence and rebut cohabiting he was whom that a man said the woman with . The fact marriage, he was prove when his is not sufficient to a wife evidence was subsequently formally to married another woman. that she against administrator plaintiff in suit an this case a The Held, com- plaintiffis not a to the married decedent had been indirectly, directly under prove marriage, or petent to witness either against Code, provides proceedings or that in Art. sec. which testify etc., to administrators, party be allowed no shall cause had with the deceased. transaction by a married sought a were that man and a woman is When par- place, that these ceremony at certain formal time and. reputed to be married not admissible. ties were is correct, prayers rejection plaintiff'that offered The upon evidence, incompetent when error reversible admission plaintiff’s evi- proper jury that the it is to instruct whole case recovery. legally insufficient authorize dence County (Jones, from the Circuit for Carroll Appeal Thomas, J.,C. J.) Fowler, McSherry, J.,C. before argued was cause

The Schmucker, Pearce Briscoe, Boyd, JJ. Argument of Counsel. Clarence Lane and Francis Neal Parke whom was (with

J. A. Bond on C. for the appellant. brief), Jas.

Identity from facts may proved circumstances, of a declarations dead husband are admissible for that pur- The pose. case rested appellant’s proof of a ceremonial dead, The marriage. was officiating clergyman appellant as to the incompetent testify marriage ceremony, witness could present recall nothing about this par- ticular because of the number she had witnessed. appellant therefore to show compelled by facts and circumstances the herself and Walter Bow- man with the named in the persons marriage certificate this, offered her in In order to evidence. do nephew Bowman was offered to that after George Walter 1890 Bowman looked at a to witness and picture belonging asked the name of the person represented. being told that Upon “Westwood,” his name was said, Walter Bowman Camden, “that the name of the clergyman New Jersey, who married me.” Here is an admission of marriage statement name of and the clergyman where the place cere- mony celebrated exactly with the state- corresponding ment certificate. This is a most marriage pregnant and fact for the significant jury. Under the circumstances, no tes- could be more timony Brooke, Brooke impressive. v. 60 Md. 524, 533; v. Jackson, 80 Md. Pratt, 193; v. Walkup Jackson Barnum, H. & Barnum 56; v. Md. 5 J. 42 301.

And undеr the second it was exception to show proposed that the family of Bowman knew from to that he 1887 1900 was married. This is admissible as evidence to to the go jury on the if question And the identity. lower Court was right did, as we shall later see it holding, the circumstances of this case raised a that the first presumption had been terminated divorce before the second by was consum- mated, the fact that knew that family was not dissolved before said in 1900, was ev- idence of the to the highest importance appellant Court committed error to tes- grievous Furst permitting vs. LITTLE.

Argument of Counsel. dead, and their are now all members of'the tify. family The admis- is always in a pedigree question (marriage) Blackburn, Md. sible. Craufurd to testify, to a is not contract original disqualified An party his are par- is dead and administrators the other where party cause, had as to transaction any to except ties intestate. with, made or statement 661, in law' the Act of ch. made change patent impor of witnesses to the competency relating mere as it existed to 1902, the law prior tant. Under dead, or ad or his executor party that the original fact itself, dis totally ministrator was party proceedings him from party prevented testifying the other qualified other side. the call of the Under anything, except instituted, this case was the law was when and as Act of 1904 only partial disqualifica- no total disqualification there is is limited and confined by disqualification This partial tion. with, transactions had or state the Act “any terms of intestate, etc., testator, unless called made by ments of this limited and Outside party.” testify by opposite testify. is free to The test the witness disqualification, partial is that must under these exceptions pre apply If the witness was asked regard the Act. scribed Bowman, Walter she was with George transaction had if witness had been asked to' Or the testify. to incompetent George Bowman, she made Walter by statement any narrate she as to In all other tеstify. respects w'as incompetent in the cause. as witness any produced to testify competent Brun, Le Brun Le Md. Md. 538; v. Spedden, Graves 55 503. seethe lower Court was to refusing error the Now not in the law'. The witness was made change sweeping with Walter transaction had George to any to as testify asked to The made him her. Bowman, by to statement any nor on own offer to testify could not her knew she appellant and to and Walter Bowman George her between the was made to do this. her; and so no attempt to his statements vs. Argument of Counsel. name, her was asked the Court declined present The appellant name, her to answer. was asked her maiden to allow She declined to allow her to She was if reply. Court asked mother, prior had been married the name of her 1887; she address; she lived in and her of her 1887, where place father, residence, birth, name of her and his Court do her silence. We not think the maiden enforced appellant’s mother, name, the name of her father and her and their res- addresses could be the result transaction any idences and Bowman with W. George appellant. had 12th, asked she was on The was next where July appellant met a and if she had ever Rev. R. Westwood anda John Westwood, residences, and what were their théir Miss Mary and when and where she met them. No trans- occupations Walter Bowman is here He is action with involved. George scene, on the but the refused the witness the not Court yet to answer. opportunity if she ever knew a man

We asked appellant Bowman, name Walter Hagerstown, Maryland, George if if she him in she ever 1887; knew had been July, Camden, him in New and where But Jersey, when. declined to allow the Court her say she knew him, Camden, she met him had at time any New submission, With we Jersey. argue meet- knowing fact, man, of that are and the statement ing had with Witness was transaction him. not asked at nor what state what took Bowman said place any meeting, then can this evidence be excluded under to her. How if Then we she Act of did not inquired 1904? have a certificate between her- showing Walter Bowman “a self and man (not but) Walter Bowman” who had destroyed of George name would not suffer this to have a Court reply, original. stood even under the law as it formerly although witness to answer similar in- has held the competent Appeals Ahl, Md. Ahl v. terrogatory. and is next asked who Catherine

The appellant John BOWMAN vs. Argument of Counsel. if had ever lived Hagerstown, she McGranagan, objection whom. Upon when and how and with long all the was not admitted. Like this testimony appellee, infor- witness, this one did not seek asked the other questions Walter Bow- to a transaction- with George mation regard man, made him. by or in statements any respect its on the ground

The did action justify lower Court character, but was of an inadmissible evidence a witness. that the was not competent the theory appellant 66i¡ is seen, of the Act of ch. As the language we have refutation of position. Argu- complete specific Court’s The lower made the ment on this impossible. point rule of evidence. mistake of a repealed applying to be adduced and given by All of the evidence sought if one else been admissible by would have given appellant the identity appellant for the of establishing purpose later in the certificate marriage with the named person This evidence would by offered appellant. between the statements have shown the correspondence the actual facts of the appellant’s certificate with marriage been and residence and would have birth name and parentage, could find that the from proper they appel- with the named person lant the same person was one and Catherine E. offered in evidence certificate Bowman in this case. nor direct was neither of marriage offered proof proof it was parties, only proof of the identity infer from the cor- which the jury might

relevant facts from was the of names places appellant respondence named in certificate. Bowman E. same Catherine is established ceremonial Where prior not admissible, un- of second marriage mere fact of a form first to show the invalidity an offer less accompanied its dissolution. death, occasioned time difficulties the. Despite the ceremonial marriage by establish able to appellant The record évi- evidence. and . indisputable uncontroverted BOWMAN vs. LITTLE. 279 Argument of Counsel. of New by was and shown laws Jersey produced, dence of in as well the New offered evidence as by Jersey be the New laws Jersey with and lawyers conformity in most of Next the marriage. be the evidence appropriate established, it shown that being name was appellant her II mother afterwards mar- Boyer, her name was Catherine Zimmerman, and she left home at of two age that rying and three to be Sarah adopted by McGranagan, legally John street in That Harrisburg. with whom she lived on Second Weaver, was Sarah maiden McGranagan name Sarah years age, that was born twenty-four appellant being and nth, furthermore shown uncontra- by and was July named dicted that the intestate was W. George proof (Walter) was Bowman, whose residence in his Hagerstown, age corfectioner, and about his business that twenty-seven, Bowman, R. and father’s name whose George whose maiden name was mother’s Catherine B. Greenawalt. After it, none to contradict this proof given, being offered names, residence, birth place, correspendence paternity, those Certificate” “Marriage occupation ages in of Record of offered evidence Marriage” and “Certificate demonstrate to a and' certainty George appellant intestate, Bowman, Camden, were married at New Walter 12th, a ceremonial and on religious marriage Jersey, July No been having given contrary, evidence from this would be con- identity arising presumption here, she stop But the did proved clusive. appellant intestate, mother her Walter daughter George her Bowman, her in and that “When they visited July, professed to come from they to see me Harrisburg, came Camden, W. Bowman said had New they Jersey; Camden, and he introduced himself from New come Jersey' son-in-law, my were married daughter and said he and as my Camden, This witness afterwards New visited Jersey. Wareham, E. one of And Dr. A. them Hagerstown. testi- prominent physicians, most reputable Hagerstown’s for about' he had been physician twenty Bowman’s fies Argument of Counsel. and that years, Bowman and were appellant living together and that he was to attend her as Hagerstown, employed Bowman’s wife. Here is the most direct character and the positive did not appellee attempt gainsay conclusive, it. could more Nothing it must be taken established in case Bowman and appellant 12th, married valid on 1887, at July ceremoniq.1 Camden, Barnum, New Barnum Jersey. Md. 299; Brooke, 524, Brooke v. 60 Md. 525—528, Bullock 533; v. Hunter, 416, Elliott 427; Knott, Md. Md. 135; v. 44 14 McClellan, White 62 v. Md. Nelson 347, 352; v. Willey, 97 & ed., Md. Am. 2 373, 381; Ency. Law, Eng. 15 of 918. The had made out appellant' her case. All subsequent A valid ceremonial marriages spurious. marriage being shown, neither nor separation, unfaithfulness after marriage before, nor misconduct nor a form of second could marriage be evidence annul the first first marriage. to. marriage could be avoided proof was not By named appellant person

(a) evidence; in the record offered in no this was proof (and of or offered) death of wife this was By and could nobe

(b) (and of or evidence)/ (and this divorce no evidence was or be By could

(c) of offered'). the mere evidence

Accordingly, second un- marriage (cid:127) offer of said proof of facts and circum accompanied by make stances as would a second or relevant material marriage and the inadmissible; Court committed a reversible error it to allowing be given. By fifteenth plaintiff’s prayer, was rejected the were instructed that the jury similarity names in the mar- certificate offered in evidence riage plaintiff with the decedent, Bowman, W. late deceased, raises Washington County, presumption law are persons same.

This law, prayer stated well-known principle 281

BOWMAN vs. Argument Counsel. Elliott v. of the jury. for the guidance important especially v. 427; Md. Nelson Hunter, Bullock v. Md. Knott, 135; 44 14 Brooke, Md. White v. 524; v. 60 Md. Brooke Willey, 381; 97 ed., 2 Law, & McClellan, Ency. 62 Md. Am. 352; Eng. 15 Duncan, L. ed. 32; 108 U. S. v. Stebbins 921; 647. 27 be established then If a valid ceremonial marriage (6) of its dissolu- of direct terminate short can nothing divorce death. tion by in which a a classification the cases pre- is

The following a first a second marriage upon will arise sumption against shown: being ceremonial is a second formal or Where Class A. will from mere established, not presumed a prior marriage Moore, 148; Moore v. 102 Tenn. cohabitation. repute v. Rawls, Waddingham Waddingham, Miss. 471; Hull v. Ill. case Myatt, 471; Myatt Mo. (In App. one, bar, is a or ceremonial formal

at first these cases do so apply). or husband not a the first wife party B. Where

Class claimant, a third and where seeks party cause and not a second is showing marriage an by to escape obligation one, the cases hold a following reason of a prior invalid will arise of the sec upon of divorce proof presumption -seeking and throw party escape, ond marriage upon Beardsley, v. Miss. Railway 417; burden Co. proof. 79 Co., Klein and 249; 11 v. Lampkin App. Ins. Colo. v. wife Landman, Erwin Mo. v. 61 Conn. Lin 502; 259; English, 29 Green, 6 United v. den W. N. C. States Kelly, 95; v. (Pa.) 98 Iowa, W., 1, L. 8; Parsons v. G. A. O. U. 108 63; Fed. Rep. McIntire, Ind. v. 574; Wenning Boulden v. Teeple, 119 144 v. Coal Run Co. Ill. these cases Jones, Ind. 189; (In 127 386. is of second a col marriage generally the question validity one, wife, a lateral and the first not not party, bound. being is a and is a claimant, In the case at bar the first wife party and has first her ceremonial third proved marriage, par not women as ties arе two wives. contesting, claiming B These facts make the cases Class inapplicable, dif ferentiate them from the present appeal.) vs.

282

Argument of Counsel. 101 are all the cases that Class C. Hereunder can be grouped for the authority When regarded position appellee. be found examined will because are they apply they facts based different state of from those presented upon very present appeal. Cases where the as first wife has herself party claiming (a) lifetime of the first married a second time husband. during Co., & Rush, v. Mont. Nixon v. Hadley 170; 21 L. C. Tex. 84 ‍‌​​‌‌​​​​‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​​‌​​​​​‌​​​​​​​‌​‌​‌​‍412. McKibben, 448, McKibbin v. Cala. which 450;

(c) 139 from it Court stated “there was evidence could there had been a divorce between Lake inferred plaintiff.” Hull, 618, Iowa, Leach was much relied v. be- upon

(d) 95 low, but this case is submitted upon grounded facts and that its here. “The prevent application estoppel to the second live and cohabit with each other as husband and wife in the where the first locality wife resides. first and second wives were introduced each as the other Mrs. Leach. The first Mrs. Leach is introduced second. All this occurs daughter without any from the first Mrs. protest complaint Leach.” At tile time second Leach claimed he See divorced. Iowa, Iowa, 720, 723; 499, 58 78 502. In the case of Beatrice, Schmeisseur Ill. it is v.

(e) held second threw on the party under the first burden of claiming there had been showing no This divorce. decision is based dictum in Cart McGown, 121 v. Ill. that is wright an supported Iowa, Iowa later overruled in early Iowa, 499; But this case Schmeissenr v. Beatrice was qualified Cole, Cole Ill. it is 585, where declared that this bur 153 of den does not exist when facts show was not entitled to a Brown Brown, divorce. party v. Ill. 142 conflict with Schmeisseur v. Beatrice. The cases of v. Teter, Teter Ind. 494; 88 101 Ind. 129, (f) not all in are point, relied although upon below. The question 283 Argument of Counsel. not a could whether or marriage in these cases simply cohabitation, when the relatiоns be provable repute before the woman was divorced were shown to have begun held a could be marriage from her first husband. so proved. whom was Chas. D. Wagaman

A. Chas. (with C. Strife for the appellees. Fink on the E. brief), whole from the record: It appears under the valid marriage a ceremonial That although

1. and fully proved have been may performed laws New. Jersey established, it does not parties fully contracting capable affirmatively appear of contracting. not affirmatively ap- does If capable contracting,

2. earnest, bona contract. that it was an pear fide earnest and bona fide, If capable contracting had not that said it does not affirmatively appear years separation been annulled at sometime during long of the said parties. in this every be bastardized as may pre

Where issue LeBrun in favor of the second marriage. law is sumption LeBrun, United 504; Jones, 391; v. Md. v. Md. 48 55 Jones Green, Stevens, N. Fed. v. Rep. 63; States v. Stevens 56 J. 98 Rawle, 471; Atl. Hull Miss. Am. 488; v. Eq. Rep.; 19 38 27 Law, and other cases cited ed., & 2 Ency. 1207; p. Eng. on brief. in this to over case

And burden upon to the extent of even prov come such presumption proof, McIntire, Boulden if v. necessary. ing negative Hall, W. Leech v. N. Rep. E. Rep. N. (Ind.); 445—448 Harris, Green, 57; Harris 8 Ill. U. S. v. 618; Ia. App. 792-95 de is followed Where a Rep. Fed. facto 63-64. is not the ordinary and issue there pre cohabitation but, its assailed being favor of validity, sumption was still former of the man subsisting, that a ground of crime and committing presumes against the law always 284

Argument of Counsel. LeBrun, in favor of LeBrun & innocence. 504; Md. 55 Dixon Jones, v. Md. v. 391; People, 84; 18 Mich. 48 Jones Underhill, 2 Rex 606; Greensboro v. 2 Vt. v. Barn. Twyning, & Divorce, Ald. on iand 386; Marrage sec. Bishop, 457.

It does not appear plaintiff compe- tent to enter into relation with Bowman in marriage July, shown, and a second been it will not marriage having that she was It was presumed competent. at least incum- on bent to show that at and before the date her plaintiff Green, she U. v. single. S. Fed. 98 law 66. The will Rep. many indulge presumptions State, favor the second Squire v. Ind. marriage. 46 It is a fair deduction from the in this case if and the decedent were plaintiff a ceremonial Camden, on New 12th, Jersey, July 1887, they never intended that it should have any force. binding They never treated it as valid marriage, strong probability is that was void under the laws of actually New A Jersey. simple will not make a ceremony man and woman husband and wife. and consent are es- Capacity absolutely sential; but celebration only so in New contingently Jersey. Selah, v. 21 N. Terry, 225; Selah v. McClurg Eq. N. J. 23 J. Stevens, 185; Stevens v. N. Eq. 488; Eq. v. Cartwright 56 J. McGown, 388; 121 Ills. Thompson Thompson, v. Mass. 114 Wolcott, Merriam 61 566; v. How. Pr. Rundle 377; v. Pegram, Miss. 751. 49

The under the law facts presumes, that either wife, married, or his first if validly Bowman had obtained a divorce before the second burden is marriage, that no divorce had been Coal granted. Run Co. 8 Coal v. N. E. Jones, Rep. 869; v. Johnson, Johnson Hall, N. E. Leach Rep. 232; v. W. Rep. 792, N. 64 3 95 Iowa, 618; Landman, Klein v. Mo. Blanchard 259; v.Lam 29 bert, Iowa, Raish, Iowa, 228; Tuttle v. 331; 116 Carroll v. 43 Carroll, McGown, v. 2 731; 20 Tex. Cartwright 105; Am. St. Rep. Edwards, Iowa, In re v. 451; Squire State, 121 388; Ill. 58 Intire, Boulden Mc v. 21 N. E. 459; Ind. Rep. (Ind.); 46 445 BOWMAN vs. 285 Opinion the Court. Ellis, Iowa, v. Gilman 65; 720; W. Rep. Ellis N. 58 Iowa, Barnes, Barnes v. Sheets, 500; W. N. Rep. & Enc. Iowa, 282; Eng. 851, N. W. Rep. 19 Am. 57 90 Law, ed., 2 p. 1209. the aforegoing prin-

It will be noticed application cohab- marriage by cases where a is not limited to ciples prior set but that they apply equally up; itation and repute In our valid, marriages. force to ceremonial as much prior, is submitted It to the LeBnm supra. own we refer State cited, here the aforegoing proposi- the authorities that upon the plaintiff’s and it follows of law are good, tions rejected. were properly prayers ruling rejecting of the Court’s

As to the correctness &Am. Eng. we refer Court prayer, plaintiff’s 15th v. LeBrun, Law, cited; LeBrun 1200, note and cases Enc. p. Brooke, 60 Md. 505; Md. Brooke of the Court. delivered the opinion C. J., McSherry, in- died Bowman, County, late of Washington G. Walter The fourth, three. hundred and on March the nineteen testate Court in the of his estate filed Orphans’ administrators personal the distribution for be day assigned petition asking on a person and later his Due notice of this was given assets. deceased, to whom that she was the widow the claiming 12th, at on July she asserted she had been married E. Camden, her New name Catherine Jersey, giving Bowman, asked that appeared proceedings be should to a widow share of estate rightfully belonging Lettie E. Bow- over certain turned to her. Subsequently to whom man, the widow of the deceased also claiming a similar 18th, set up she was married on January were finally had issues claim. After other were proceedings trial. In for framed and transmitted to the Court Circuit Bow- Court, E. order the issues to the law Catherine sending the ad- man was Bowman made and Lettie E. plaintiff the suggestion ministrators were made defendants. Upon re- of the issues and affidavit of the the record vs. (cid:127) Opinion of the Court. moved to the Circuit Court for Carroll where a County jury was impanelled and the questions tried.

The issues were as follows: “1st. Was Catherine E. Bowman at the time of the death G. Walter Bowman lawful wife of G. Walter Bowman ? . 2nd. Was Lettie E. Bowman at the time of the death of Walter Bowman G. the lawful wife of G. Walter ?” Bowman During trial progress eighteen- exceptions were reserved—of which seventeen relate to rul- on ings admissibility evidence, last concerns the action of the on the numerous prayers presented by both sides for instructions to the jury. verdict was in favor of the defendants; or to be more an- precise, jury swered the first issue negative; second affirmative. From the set forth in the bills of rulings excep- tion the has plaintiff appealed. this, is

It obvious from outline of case that the single question was; before the which of jury these two women is the lawful widow of the decedent ? Around that all question the subordinate inquiries presented record revolve. There is reason to slightest doubt that Lettie E. Bow- man, Eakel, Lettie formerly manner, E. was in a formal married to Walter G. Bowman in January, 1900, by a regu- ordained minister larly of the Thаt fact is gospel. beyond of controversy. child, fruit is one Walter marriage Bowman, who, E. his also to these guardian, a'party proceedings.

At the close of the defendants, evidence the other amongst prayers, : presented following 1st. That the verdict of the must be jury against issue, plaintiff first and their upon answer to. said first issue “No,” must be because the has no plaintiff offered legally sufficient evidence Walter Bowman re- George ferred into the record of a Camden, New Jersey, evidence, offered in is the same Walter Bowman upon whose estate letters administration have been granted . the defendant administrators in this case. vs LITTLE. Opinion the Court. the plain- be against of the must jury That the verdict

2nd. issue first to said issue, their answer first tiff no legally has offered because “No,” plaintiff be must McGranigan the Catharine to prove sufficient Camden, New of a marriage the record referred as the plaintiff same person is the in evidence offered jersey, case. in this been granted to have If rejected. they ought

They may there though even plaintiff’s is an end of'the Proof in the record. found other rulings errors in been have Bowman, decedent, to the of Walter G. of the marriage absolutely her was time place alleged at the But contravene that proposition. No one can indispensable. status or to establish necessary kind of evidence what be, when relation, value should it probative what and of mar- of the alleged incident to the sustentation consequences of the the branding must 1887, inevitably July, riage and the bastardizing crime bigamy, deceased us first Let off-spring the innocent 1900? in such cir- of evidence law requires measure see what Taylor In what it relies. and upon presumptions cumstances Lee, where two Taylor, Eng. Rep. Ecc. of a claimed administration the effects de- severally women before his widow was twice the Ec- being cedent as (which there must be was said clesiаstical England) “as an antecedent ac- “strict proof’ this And this was cited with approval by tual Court fact." Md. and in the 159, in same v. Md. Jones, 48 45 Jones which the that there must The reason doctrine upon 398. of first rests is When marriage, apparent. “strict proof” is met a counter of lawful marriage pre- presumption innocence, the yield of former must force of sumption it has shown that there was an After been actual the latter. law in the method which the prescribes solemnized issue; birth of inference is every and followed invoked in and an antecedent against ofits validity marriage, support of the are in law favor of in- presumptions always because 288

Opinion of the Court. nocence and of “The law legitimacy. morality and presumes ’ not and not immorality, marriage concubinage, legitimacy Teter, Teter v. bastardy.” 101 Ind. cited in note 129, 3, 1202, Am. p. & Eng. Ency. Rooney L. v. ed.); (2nd 19 Rooney, Gainse, N. Patterson v. Eq. 246; 6 How. 54 J. 550. In v. King Inhabitants 2 Twyning, 386, Bar. & Ald. very of illustration of strong of predominance the presumption innocence over other case is presumptions furnished. involved merely the settlement of a A woman had pauper. married a soldier who soon afterwards left for the East Indies. Within twelve months she married again, question turned of the second validity marriage, ' it was : upheld. said “The facts of the case are J., Bailey, that Burns, there is a with Francis pauper is valid, which but the prima before that took year place facie Winter, she was the wife Richard if was alive at he the time the second it was and she marriage, illegal But are Winter was guilty we to that bigamy. presume then alive? If the for it had been indicted pauper bigamy, would not be clearly, sufficient. In that case Winter must have been to have time of proved been alive at the the second It is marriage. contended that his death to have been ought is, but the law proved, answer is that the presumption of is, he was not alive when the of his so consequence being anothеr has person committed criminal act.” This is quoted v. approval adopted Jones, Md. 48 Jones Brun, the case is cited as an in Le Brun v. Le authority In Piers, Md. Piers v. it was held H. L. Cas. of a tried like question cannot be validity other of fact question independent presump tions, for the law will favor and that presume marriage, this must be met and satisfac presumption distinct strong, It is that in this tory disproof. country not.denied some conflict of decisions and of on this sub judicial opinion Md. "but ject admitted Jones, 399; Jones cannot, be said we think case) (observed way.”’ The is the other authority preponderance

BOWMAN vs. Opinion of the Court. Md. ] as the cases above undoubtedly Maryland in this law State let us cited have announced it. Now see whether these measured up requirements adduced by plaintiff we to which have and overthrew the alluded. presumptions of consists of three items evidence admitted distinct which offered and two rejected and that proof, comprises It not others. These will be dealt with. must separately estab- burden of on the forgotten ” lish a for by “strictproof ground prior marriage one, which of second confessedly annulment otherwise is To valid. burden there adduced a mar- discharge certificate; the of a riage testimony witness certain occur- rences Pennsylvania; of Harrisburg, as to some witness things transpired Hagerstown. As is the most feature of important certificate the plain- tiff’s evidence it will now be transcribed. New

State of Jersey. Marriage Certificate. husband, Full of name George W. Bowman. Place of res idence Md. Haleystown, give (If City, name street and if in name Number; of township give County.) — months, Number Age of his years, marriage, First. Country Confectio7ier, birth, Occupation, U S. A. Name of R. father, Birth George Country U. S. A. Full maiden wife, name of CatheriTteMcGranagan. Birth, Country ‍‌​​‌‌​​​​‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​​‌​​​​​‌​​​​​​​‌​‌​‌​‍U. of-residence, E. S. Place A. Plarrisburg, Pa. (If.in City name, number, street if ain give township give name and nearest Age birthday, If county.) any trade 2‡. or busi- widow,--Number so Last if a ness namе state.) father, Name of marriage, of brides 1st. ; Country John birth, A. Maiden name U S. of mother, Sarah Weaver, birth, U. S. A. Date Country 12th, July (in full) Place, Camden, N. J.

In Mary Westwood. presence

R. Westwood.

John shows

The certificate W. Bowman of Haleystown E, was married Catharine McGranagan, Penn- Hci7'risburg, it does show sylvania; the George W. Bowman therein was the named identical G. Walter Bowman of Ha-

VOL. IOI LITTLE. vs.

Opinion of the Court. whose estate is in this involved gerstowu controversy. certificate shows that W. Bowman was married to of E. but it Catharine does not show McGranagan Harrisburg the therein Catharine mentioned is the iden- McGranagan E. Bowman who is the tical Catharine in case. plaintiff does not and could not an extrinsic fact, The Certificate prove is an extrinsic You identity fact. it is .may say and personal Bowman, deceased, that some one the not probable personated one the that some else in the personated plaintiff and that is so; too, and Perhaps Jersey marriage. perhaps, New that the delineation the certificate of it is-not given probable would have mentioned therein so corresponded the persons the of the deceased and of description plain- with the closely does, if the deceased and the tiff, plaintiff it as apparently who married in at real were July, the parties were not all other sum of these plus Camden; probabilities, record, would from the bemay suggested probabilities the same in a Or, to state thing á probability. be only still from drawn prem- conclusion logically Away: more precise must of neces- mere probabilities; themselves are ises conclusion, to also, because a mere probability be sity in the premises, be contained formal, always must be is not a a certainty.. contain can never There" probabilities named to establish shred the certificate be conceded that it Suppose certificate. occu- name, the same the same man giving some proves Walter of residence as George samé place pation n Bowman woman the same to some giving married had, was „to have professes plaintiff residence the same name Bowman, now Walter that the G. still, does it had; man; was that woman. or, the plaintiff was that deceased, alone that certificate from' the conclusion justify To married, then and Bowman Walter G. plaintiff now dead was Bowman Walter that G. be must inferred certificate, the Bow- although described man identical old and years be twenty-five said mentioned man evidence, twenty-seven then, according deceased BOWMAN vs. Opinion of the Court. and it must inferred that

years is the age; certificate, identical woman named the same her although residence was as East when she given Harrisburg actually lived Two such inferences Hagerstown. must improbable ” thus take “strict as to place personal identity/ and to be those inferences must same overcome the availing counter of innocence presumptions from legitimacy arising of G. Walter Bowman to Lettie subsequent marriage E. do, Eakel—a are because these thing they latter powerless evidence which yield only to establishes a men- presumptions conviction tal to moral certainty—and amounting proba- can never a moral bility certainty. produce The authorities are the that clear upon proposition must be evidence of of the the identity beyond the parties mere statements contained certificate. “Where the ev- certificate, of idence license, consists the or mar- record, the of the riage identity must also be estab- parties lished by evidence.” & satisfactory L.,, Am. Enc. Eng. 1200, and cases in note A (2 very illustration of ed.) apt 3. the doctrine stated the text is to found in the case Brooke, Brooke v. 60 Md. It was shown there from the 524. records church solemnized, where the was Brooke and Henry A. were married on Margaret Ridgely February Aftеr 29th, the death of Brooke a claim made by was she was his Margaret widow. This was the executor disputed by decedent. It was shown by latter never lived as man and wife together after ceremonial did marriage, Brooke though die until 1879; the contention was some one else had Brooke at personated The case for the ceremony. widow was not permitted rest the mere or upon identity similarity of the names on the church nor register, of the clergyman that he had in wedlock joined two persons the names of the claimant; deceased and the giving a pho- Brooke, to be an tograph proved accurate and one, genuine was and was identified produced who witnessed persons as the marriage, likeness who picture man BOWMAN m. LITTLE.

Opinion of the Court. married to that evidence it actually Margaret Ridgely. Upon was decreed that she widow Brooke. Henry

It true, of names is generally identity speaking, prima names, evidence of identity but the of course persons; facie must be identical, this involves the of the Christian identity names—the of the initials thereof insufficient. being L., & Am. Enc. cases cited in notes. Eng. 919, and indicated already As W. Bowman as named in the cer tificate is no means identical G. Walter Bowman deceased, and no inference can be drawn that these two des out the same individual; when that ignations point especially which, to as an if dissimilarity appealed evidencing identity, established in that would overthrow the way, strong pre in favor of innocence and sumptions legitimacy. next evidence relied on to is that prove identity given Zimmerman, the mother of the Mrs. This wit- plaintiff. W. Bow- “I knew George

ness testified as follows: met and and my house in Harrisburg, man in at my July, with me was with They stayed him. daughter, or three the hotel for two days; and at at during day night in the fall of the I afterwards visited them at Hagerstown and where they street in were at Hagerstown, same Walnut year them, house with else lived in the No one together. living thеy me in came to see Harrisburg professed they when Camden, New and W. Bowman Jersey; come from he Camden, and intro- from New Jersey, had come said they he said he and my son-in-law and daugh- himself as my duced Camden, It will be in New Jersey.” per- were married ter no inde- that this establishes ceived, at a glance, fact, stayed that Bowman plaintiff other than pendent in and during day witness Harrisburg house of the at the for less than the of a week; the night, space hotel during anat them at Walnut visited street the witness that when and n were they fall of the same year, living Hagerstown, lies in the recital of the dec- its chief significance gether; and wife as to husband their the supposed made larations the conduct this evidence as to If marriage. little. BOWMAN vs. 293 Opinion of the Court. to show that Bowman and plaintiff it was parties designed man wife— wife—that and they as man and cohabited and, therefore, identical who had been mar were the persons Camden, the conclusion thus sought New Jersey, ried in the validity cannot be as accepted impugning be deduced defendant, Bowman, E. to the Lettie especially, the marriage on was as consistent with con just the conduct thus relied when it is remembered that as with matrimony, cubinage was house of ill-fame and that on street house Walnut “A be will not prior marriage was prostitute. plaintiff cohabitation, and acknowledgment reputation, from presumed will void a second where render such presumption & Enc. L. Eng. solemnized.” Am. formally ed.) (2 hand, If, on the other the declarations and cases in note 4. are relied have been introduced and on to estab they lish are identity, palpably unavailing plainly personal In case of Le Brun Le inadmissible for that v. purpose. Brun, “Marriage said : has been considered supra, nations, all civilized as the most contract important among enter, which can as the not the child parent, into individuals basis of human throughout of civil society. great society world, is founded on the civilized marriages legitimate an it not existing where proved, off-spring; aside set danger being by any species to be exposed of either of the collusion, or the mere declarations par ties, the most and should only brought question upon Divorce, on 573; Marriage undisputed proofs. Shelford Bland, Piers, Piers 481; 2 H. Murray, Fornshill v. L. The association v. Relf, Gaines How. 331; Cas. 472.” Bowman and the the two or three days for their of the same Harrisburg occupancy were together fact of their marriage, house do Hagerstown of the individuals named tend to establish the identity nor for those or three days Their association two the certificate. is not “undis of an house of evil repute, or their occupancy if such effect is of their when an given marriage, puted proof" mar- facts, of those the issue second to either or both vs. Opinion of the Court. will be of bastardized and the crime will im- riage bigamy to and fastened on puted Whilst this is not a decedent. for suit of nullity of evidence as to marriage, degree identity demanded in is this no less than in that. “In proceeding rigid suit for of marriage, of reason nullity former marriage, strict of It is a identity clear requisite. rule must be by other than that testimony proved is, themselves, the parties witnesses who can of speak ord, the facts their own personal knowledge." Mar. from Shelf Div., & as in Le Brun Le Brun. The quoted approval of Mrs. Zimmerman has testimony therefore no probative value. Dr. Wareham was “I knew testimony follows: there at time as lady one sitting (indicating plaintiff)

the wife Walter I was George Bowman. Walter George Bowman’s for about for first his physician twenty years and second wife. I knew At time she was plaintiff living street, on North Walnut in a house which the Hagerstown arid Walter Bowman lived. time plaintiff George At Walter Bowman me to attend to her as his George employed * * I wife do not know who owned house in *. . I her which attended All I know that on Walnut street. Walter Bowman me he was there' and employed go I do nоt if whether or he was there. know there. living was no one else there There I living my knowledge, often, I day saw him cannot tell how night. he me.” view testimony paid Leaving that the house on North was a bawdy Walnut street proved house and that the was an under the inmate thereof -plaintiff was ar- Boyer, name Edith and that under that name she for rested fined conduct in disorderly 1888—more April, than months after-her at eight Camden—- view, all this of Dr. Ware- out does the leaving than his or ham amount more inference anything opinion infer- that Bowman and man wife—an on ence or from founded the statements opinion drawn ? As own would be inadmis- Bowman -Bowman’s statements vs. LITTLE. 295 Opinion Court. a witness drawn the conclusions of sible to prove Hence those statements are incompetent. from same equally no evidence identity. furnishes testimony not allowed offered as a' witness but was The was plaintiff not witness to competent prove to was a testify. She was or because Bowman indirectly, either marriage directly Denison, Md. Denison v. 96; v. Redgrave, dead. Redgrave 38 Law, & Ency. 361; Md. Am. Eng. 1198. 35 19 was subject on this same The other proffered deceased, Burst, a nephew B. Clyde left estate one-half and who would entitled to personal first if the second annulled marriage Bowman by was asked he In the first upheld. one were bill exceptions view of es uncle, with his with a conversation had give the uncle’s admissions his identity tablishing by The was certificate. Bowman named cannot be Identity proved in excluding testimony. right has already pointed the admission as been parties, * * * out, witnesses who must be proved “Identity from their knowledge.” can to the facts own personal speak asked, the same witness “During In the next was exception it family this time was or not known among not was question Walter Bowman was married?” at a partic solemnized be answered. A marriage allowed on, not relied and was ular time and was set place up and that there had been a to show repute competent and as It not serve to the parties; did identify prior 1900. at a to have been performed a ceremonial marriage, alleged on, the time and proposed place, depended designated evidence, if it that there had tended to by repute even on irrelevant as sometime, at reflecting been a marriage which the relied. Where marriage one upon aby as been at a performed particular place set having up fails to and the evidence ceremony, support form particular will assertion, so such a not party alleging on to establish it. be at general repute liberty rely Jack Barnum, Md. son 82 Barnum v. 28; Md. Jackson, 251. BOWMAN vs. Opinion of the Court. It was also inadmissible for the reason given discussing Zimmerman, & testimony of Mrs. Am. L., Eng. Ency. Inasmuch shred of evidence record in to the named identify the New or certificate, Jersey to show one was the decedent and the other was the the latter's contention must fall to the it plaintiff, ground; becomes immaterial what wholly were the other in the rulings case. third, sixth,

The fourth, fifth, seventh, and ninth ex- eighth were taken to refusal of the ceptions Court to allow the chief, fourteenth, fifteenth, to in plaintiff testify six- teenth and seventeenth were in reserved conse- exceptions of the Court quence as a excluding plaintiff witness rebuttal. There no was error committed of those (cid:127) The rulings. evidence to be introduced either tended sought prove did, it did If it identity plaintiff, not. it was inadmissible she because was incompetent prove it If did not tend to her identity. it was irrel- prove identity evant.

The in the tenth ruling was It exception right. merely the- defendant to her permitted to Bowman. prove was That one'of the issues before the jury. eleventh, in the twelfth and thirteenth rulings excep-

tions admitted evidence adduced to show what name the was known what course of plaintiff formerly Hagerstown; upon she led life had there and what she had been charges arrested. If the shоwed that was not certificate, named was as unnecessary she person this, had failed to that she was. If it did not prove do it was In either its immaterial. event admission did no injury'in fact view the defendant’s first and second prayers to have been There is granted. no reversible error ought in those assigned exceptions, discussed, not

The' need be because if prayers those granted at the instance of the defendants were did no in- wrong, they inasmuch as the plaintiff had failed to jury, wholly relied, as, view, which she in that she marriage upon was Dissenting by Pearce, Opinion J. all, a verdict at she could not have been preju- entitled not which a verdict to be rendered permitted instructions diced different If the trial Court on other and grounds. her against rejecting wrong prayers plaintiff, abstractly done, inasmuch reason of her failure no injury no she had before identity adequate proof standing furnish cannot because and she complain prayers, jury; offered, had such been theory proof proceeded were for the rea- they rejected when rightly rejected, had been adduced. no such proof son that as a result of the failure was right the verdict Since disturbed; indicated, we have it will on point be affirmed without that they will deciding the rulings been, free from error under a dif- in all respects, have would are as to the We parties. state of facts ferent ourselves to the committing accuracy to be understood not on the if the first mar- prayers, of rulings of of the had been identity satisfactorily riage if to those had tending requisites or proved, in those this case we affirming By rulings introduced. been that, established, was not identity because decide merely has been shown to the prejudice error injury no reversible With this are explanation rulings the appellant. of is remanded the end that the find- cause affirmed be certified to the of may of the Court jury Orphans’ ings County. Washington and cause remanded.

Rulings affirmed 21st, 1905.) (Decided June аnd delivered the dissented J., following opinion.

Pearce, heretofore conviction that expressed my have dissenting I should be in. The conclusions of rarely indulged opinions Court, deliberation, after always carry argument correctness, of dissents the presumption frequent them of the voice without the dis- authority weaken commending dissent, when it is felt to be a Even does duty senter. therefor, follow that it is wise to reasons always assign Dissenting Opinion Pearce, J. to reconcile but after a sincere attempt myself disposi- so, not been tion of this I have able to do and as it deals with a of vital to the social and question importance domestic fabric, in a never in State, form before this presented I feel that I am in the views which I justified am expressing unable those brothers. yield my Circuit Court defendants first and rejected second in full are transcribed in the this prayers, opinion Court, the first an instruction that there was no asking legally sufficient evidence of the Bowman, Walter identity George Camden, referred to in the the marriage record of New evidence, offered in with the Walter Bowman Jersey, whose estate is case; subject controversy second an instruction there is no suffi- asking legally cient evidence of the of the Catherine McGranagan to in the record referred of said with the marriage, plaintiff this case. This these should have holding prayers been it became immaterial to whether there granted, inquire record, were other errors in the since there could rulings be no without recovery by such plaintiff identity. In these for the my opinion prayers properly rejected state, which I endeavor to and in that reasons shall connec- I shall consider the tion fifteenth which was plaintiff’s prayer, asjced and which an instruction rejected, similarity Camden, in the record of the names at New Jersey; with the names intestate,- defendants raises a law are the same. presumption persons at thе time

Certainly, proof her, to her place by alleged indispensable recovery, “what kind of evidence is to establish inquiring necessary relation, that status or and of what value should probative be,” it is not to controvert that there must necessary be‘‘strict fact,” of such “as an actual in Tay as stated proof” lor Taylor, v. I Ecc. do not understand Eng. Rep. 5 454. that “strict either as however to of proof,” applied identity fact, other issue of is the math of persons, any equivalent demonstration, ematical or that in of determining

BOWMAN vs. Pearce, Dissenting Opinion by J, by to an it can be satisfied marriage, only the mar- of of witnesses living performance “strict,” The word is defined in the ceremony. Century riage as, severe,” that definition “exacting, rigorous, Dictionary the word. There accords with the of best general acceptation strictest strictness, of strict proof. are degrees statutes,” restraint,” “strict of strict “more Shakespeake speaks “ Inlaw, strictest “strict construction excludes and of degrees." but does not literal and blind ad- mere require implications, rule attachments can to mere words.” Thus the hesion the terms of be sustained on “strict compliance” mean, substantial has construed to com- the statute been Am. & Enc. The case of therewith. Eng. pliance in this Md. cited case to Jones, opinion Jones of this these I conceive sustain Court upon prayers, ruling the lower in re- for the made Court authority ruling issues them. That was a case of to a jury fusing involving and one of an of the defendant’s the proof alleged,marriage, an no concluded with assertion there was evidence prayers This was such refused any marriage. Superior of Baltimore and in City, affirming ruling Judge Court Alvey said, we think of as “Whatever the verdict the re- may cause, this sult the tvhole evidence will not say any entire or the consideration question particular it, be taken from the involved in should jury, upon prayer that there is no sufficient evidence for the justify finding if there be evidence from which a rational adverse party, as be drawn such theory conclusion may opposed such a can be Before Court must prayer. prayer granted, the truth of all the before the jury assume evidence te7idingto be, claii7ior as case all in- dcfe7isc, may sustain the it, from on deducible demurrer to fairly ferences of fact evidence, a7id such evidence be contradicted Í77 this though m the cause. by every Upon particular opposÍ7tg other can the case be no withdrawn from the principle consid- who alone are eration of jury, competent decide on contradictory facts evidence has been But given. LITTLE. BOWMAN vs. Opinion by Pearce,

Dissenting J. hand, the other where the evidnnce is of such upon and light nature that no can inconclusive rational conclusion be fairly drawn therefrom the claim defense to support sought it, be maintained it becomes the imperative duty Court to instruct the that such evidence jury is not sufficient them, to be and their considered should be finding The italics the above accordingly.” quotation are mine. there announced had ‍‌​​‌‌​​​​‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​​‌​​​​​‌​​​​​​​‌​‌​‌​‍been declared in principles earlier cases, cases, and have been in later I repeated and have only cited here for passage purpose showing those have been without principles limitation or applied, qualifica- tion, to a case involving marriage, is fact of no reason disclosed should not be why they when applicable under consideration particular question to happens be the an prior of a consequent validity subsequent marriage.

It no answer down in laid I principles passage have cited from Jones, that “the supra, say law Jones favors and not morality immorality, not concu These are binage, legitimacy bastardy.” wise and are righteous presumptions, they presumptions only. evidence, confronted with that evidence must be When con sidered, met when by preponderating those pre evidence, to such as other yield must sumptions presumptions must, result; be the and that evidence must may whatever be tribunal which deals with all the other submitted to the evi under the uniform rule which dence governs evidence, determining upon legal sufficiency Courts addressed, to which irrespective particular question one of the few which are unless conclusive presumption has been to the list tendency in law. The narrow long are and “Courts now in everywhere conclusive presumptions, rules to abandon the of evidence which arbitrary clined formerly Evidence, on into the real facts.” forbade sec. inquiry Jones I correct, If the for which contend be not rule then from the some other be withdrawn prin case may jury Alvey has than declared be the ciple Judge vs. by Dissenting Opinion Pearce, J. case, or the any which consideration of only principle therein, can be involved withdrawn. any question dissent, I the this must recite order evidence justify In as two these touching questions admitted (without exception) in the case. holds to marriage certificate the constitute

The Court evidence, alone, or in with all other Conjunction no either the in the sufficient to establish the identity evidence legally therein, in the the mentioned twice parties appears either B, as record, first where it Exhibit upon page 19, appears with the claim- petition, in the Orphans’ filed plaintiff’s Bowman, and on the of George to be widow W. again ing certified months 24, where ten later than the duplicate, page former, in was filed with the taken New depositions Jersey. Court, In as in the of the transcribed copy, opinion Haleystown, Md., is as residence Bowman George given W. record, in the his resi- they but in both certificates as appear as It is true in the dence Md. given Hagerstown, herself that said residence was she states plaintiff’s petition, said certificatе, Haleystown written instead Hagerstown, of the certificates but this averment is not sustained either record, set out these are not better only certificates of the but the evi- evidence than averment petition, contents, in the dence of their which can be absence accepted, of a of the error as to specific agreement here, I allude to this in the opinion therein. because reason, Court, it is said does not that this certificate, for therein, from show, was W. Bowman named George Haleystown, that he does show was from Hagerstown, but that he not same whose therefore was W. Bowman George estate is here if so written controversy. But even certificate, I admitted being without exception, apprehend alone would to consider deprive jury right certificate, in all the other connection the case establish the tending of these parties, than would the more fact certificate gives Catherine Pa., residence E. her McGranagan’s while Harrisburg, Dissenting Opinion Pearce, J.

mother her residence as gives These Pa. Harrisburg, slight discrepancies, "contradictions,” are at most but ambiguities, which under the rule in Jones, are for the de- supra, Jones cision of the and not of the The certificate states that jury Court. therein, W. Bowman named confectioner George his and that name occupation, father’s R. Bow- man. record of the return marriage (page 24 states that his mother’s maiden name was'Green- record) It wait. states that Catherine named therein was McGranagan Weaver, his daughter Sarah McGranagan John It of course wife. admitted that there be evidence of must parties, mere statements con- beyond certificate, tained but these statements are abundantly confirmed the uncontroverted by witnesses living in the case. Wareham knew Dr. testifies that he George Bowman, Walter his Bowman, that father was R. who George was that a the maiden confectioner; name Walter George Greenwalt; Bowman’s mother was that he knew the plaintiff; then in' sitting his as wife of presence, Walter George Bowman; that he his for twenty was about for physician years wife; his first and second that at time he knew plaintiff, she was in a house in on living North Walnut Hagerstown street, in which the plaintiff and Walter Bowman George lived, and at that it was that Bowman him to employed time wife, her attend as his and that there was no one else living knowledge. his Furst, Bowman, B. a nephew Walter tes- Clyde George tified that Bowman’s father confectioner, was a named George Bowman, that R. and Walter Bowman’s mother’s George Greenwalt; maiden name was and that Walter Bowman clerk in father’s was a his confectionery store; that 1890, left he himself for and after that was Hagerstown college, for home visits.

Mrs. testified that Zimmerman Catherine .McGranagan was her former husband named daughter by Boyer; that she ith, 1863, was born with the July agrees certificate 12th, 1887, where her age made July given twenty-four. vs. LITTLE. by Pearce, Dissenting Opinion J. when her adopted Zimmerman testifies that daughter Mrs. Mc- two three years age between she was John Sarah, wife, name was Sarah his whose maiden Granagan Weaver, certified order and a an copy Pa., November, made in Pleas Dauphin County, Common 1868, shows the legal adoption by McGranagan John Sarah, wife, his of the child of under name Boyer, Joanna Zimmerman testified Mrs. further McGranagan. of Catherine Bowman, first whom she then W. July, 1887, George knew, her her in Harris- said house daughter came Camden, from New where they Jersey, came stating burg, married, and in the fall of the same had been they just street, she visited them in on Walnut where Hagerstown year where she continued for to live living together, they or two. year father, West- Westwood testified that her R.

Mary R. John wood, whom said have purports marriage ceremony 12th, was on of the Third been performed July pastor Camden, Methodist Church in New Jersey, Street Episcopal mar- that her name her as witness to said signed her father died in and that she witnessed riage; ceremonies, has no of his independent many of this B. Wright, secretary recollection ceremony. George New testified Jersey, of the Methodist Conference of Episcopal as a minister of that Mr. Westwood was ordained regulary March, his in presence in gospel he Bow- Little testified that knew Walter George Charles A. Bowman; his fath- whom he also man W. called his er’s name was Bowman and mother’s name George R. his was Greenwalt; confectioner, father B. Catherine time; he was in same business for a and himself engaged but from and that he lived in was mainly Hagerstown, away evidence, for of his all this Why life. pointing period me, of both as it seems to directly plainly am I notable jury, these should be withheld from parties, to see. said, it is certificate

In the Court opinion 304 Pearce,

Dissenting Opinion by J. as “when Bowman’s to the gives age twenty-five, according evidence he but I was can find twenty-seven years age;” no direct his evidence that effect. The reference to only age Furst, in the is made B. who testimony, “I do by Clyde says, not know uncle’s but think he was born about my age exactly so, If he was but this witness i860.” testifies 1887, 27 that he left home for and if he was then college which is above the usual of entrance to twenty, age college, he to have been would born could con- appear no of one born sequently personal knowledge age .have But in 1860. he disclaims knowledge professes only his the Court “Catherine Mc- opinion. Again, says, give lived in when the actually Hagerstown” certificate Granagan as But her residence E. I cannot find Harrisburg. any gave of her residence there to the date of the mar- prior in this certificate. Mrs. Zimmerman ‘.‘After says, my riage she was in Hagerstown left for a year daughter Harrisburg two,” that she ever left but nowhere be- says she Harrisburg Bowman. Irvin Bitner fore the marriage-with testified- since he and was Hagerstown had li.ved.in Justice “within for about twenty years, that, of the Peace lived in a woman named Edith who Ha- time he knew Boyer asked, he did not and was not at what say, gerstown,” he dates fixes are twenty years. within period 1888, both October, date subsequent April, nor Benner certificate. Neither Wassen in the marriage given when she lived so that Hagerstown, date whatever give that her residence a loss to discover any testimony I at am ceremony when per- in Hagerstown in Camden. formed in its of Mrs. Zimmer- the Court opinion, speaking

Again, to her visit to the fall testimony relating man’s street, with Bowman on says, she lived Walnut when as with matri- consistent with concubinage just “this street remembered that the house on Walnut when it is mony, ” I can find a house of ill-fame. is the testi_ house of ill-fame any Hagerstown as to record Dissenting Opinion by Pearce, J. Md].

mony Wassen and Benner who say that the “was an inmate of a house of ill-fame in Hagerstown known as the Arnold House and she lived on North Walnut afterwards street which was frequented by Walter Bowman a number of men who young are dead.” Neither of these inmate, witnesses fixed date any she was an when House, Arnold nor do either of them the Walnut say street house was a house of ill-fame. ifBut we assume it was such, I am unable to see how that can affect the to which question viz, alone the under addressed, consideration are prayers of these A identity parties. be made a lawful prostitute may wife, a valid ceremonial where the husband has marriage, of the character and conduct of the woman knowledge he wife, takes to and a divorce is as necessary to dissolve such a If other. she becomes mar- marriage after impure and he continues to cohabit with riage, her after discovery, he offense, condones the her conduct affords no for ground divorce, not, case, could such to have presumed When, been as in obtained. v. Jackson, 80 Md. 192, Jackson it is 82 Md. to establish the sought fact of marriage the mere from arising cohabitation and presumption repute, evidence of want of before the chastity alleged marriage, cohabitation, is admissible to rebut during period that the cohabitation was the presumption lawful sequence but it cannot tend to marriage, lawful es- disprove evidence, tablished nor can it reflect by proper any light upon of the of the question identity mar- did, if would be a consideration riage, for the jury. that there was no of a second

Suppose allegation but that there was issue the alleged marriage with and that McGranagan, Furst, Catherine B. Clyde deceased, who, situation, in that would be en- nephew of his to the whole estate personal titled if established, were not McGranagan Catherine from the to withdraw case jury seeking the same testi- parties, upon question here. mony given

VOL. vs. '306 (cid:127) Opinion by Dissenting Pearce, j. effort, would to If he succed in the result should issue of Can bastardize the innocent that alleged marriage. it that in such case the Court would say be supposed the of the identity was no evidence sufficient to legally if in of to that ? And sufficient aspect parties in of The the not the the same case ? why present aspect to establish an testimony force offered probative sufficient for the where there cannot be held jury none, nor issue the and insufficient where there marriage, merely it because it tend to bastardize may can be excluded merely nor admitted the issue of a second' alleged marriage, n because mar- it to of a contested relieve issue operate may fact prove any The legal sufficiency riage. issue, its to that relevancy exclusively upon in issue depends to that fact It can- force as alone. its probative applied and mere any adverse depend upon presumption, be made not must affect the result It it case.. nor how upon may as the rational con- its basis solely upon quality depend issue, sufficient, fact in and cannot be held to the clusion as result, favored in a certain however merely accomplish to de- held insufficient in order law, merely in and morals or result, however deprecated. feat a contrary correct clearly Court think Circuit .was I therefore and in sub- first second prayers,’ the defendant’s rejecting of the to the determination identity mitting fifteenth asserted prayer proposition The plaintiff’s jury. offered in the certificate of names similarity “the with the names of the plaintiff the plaintiff, in evidence Bowman, raises a Walter decedent, presumption G. None of the same,” but it was refused. are these persons first and second prayers, the defendant’s except prayers, Court, fif- the plaintiff’s in the opinion discussed here, the fact that but for be adverted would teenth prayer so con- identity fully same question it is addressed first defendant’s passing Court sidered should been I think it have granted. prayers. second Brooke in the Circuit of Judge Stone opinion LITTLE, BOWMAN vs. Dissenting Pearce, Opinion by J.

Brooke, 60 as to Brooke, Md. Henry at printed length report, approved Court in affords for affirming judgment, strong this instruc- support tion, and the law was so declared in Clark distinctly v. Pear- son, Holt, Geo. and Wilson v. Ala. In the case it former was held that of the the name identity of the county person whose name the action was brought the name of with on one whose adminis- county estate had been tration constituted previously granted prima facie that such bar, evidence was dead. In the plaintiff case at identity the prima strengthened confirmation the facie of Bowman’s description occupation, and the names his par- ents, well as as the names of Catherine McGranagan’s adopted parents, given marriage certificate.

In the Alabama Dr. Robert Wilson S. had been di- wife, at the Georgia vorced suit his first and had married in Alabama where again the law prohibited the of the To sustain party. thе of his guilty validity mar- subsequent reliance was an riage, placed upon Act of the General Assem- of Alabama Robert

bly relieving S. Wilson of all penalties and lawby disabilities attach to from, persons or against whom, a divorce has been in any ordained State. It was held Act, that the of name in this identity that of the com- father, who was then a resident of plainant’s Montgomery Alabama, was County, evidence of prima identity of per- facie son, and was sufficient fact, it unless was shown the name a common very one in that of the part or unless there were other country, facts doubt on throwing and in supposed identity; of this support the Court ruling Evidence, cited Wharton on sec. That case involved title 701. land, and this to title depended upon Wil- Dr. validity son’s seeond which in marriage, turn his iden- depended upon with the Robert tity S. Wilson whose disabilities were removed the Act of Assembly mentioned. In section Jones Evidence, on a number of cases are cited sustaining prin- nofp ciple its illustrating application, also in a to Penner, L. Rupert R. A. Pearce,

Dissenting Opinion by J. all sustained the rulings The Court opinion all the questions propounded the lower Court refusing in her own when offered as witness behalf. to of this The stated ground ruling lower Court in this cause witness under competent that she was not I cannot agree. 661 of but with ruling ch. exclusion, e., as transac- “any Act works i. partial intestate, unless called statement made by had with or tion shall or unless party, testify by opposite in evidence the same concerning have been already given do understand that the or statement.” I transaction no it finds error of these though adopts ground rulings, tended to them; thus excluded “either stating it or it did not. If it did prove plaintiff, prove because she was incompetent was inadmissible identity, tend to her was irrel- it did not identity. If not of this I I do course But with cannot agree. evant.” to fact of her mar- not herself testify that she could dispute “a transaction and being at time riage place alleged', deceased,” that she was but I do not understand had with the fact, not being to to testify any independent incompetent deceased, merely made with, or statement transaction her fact, established, would tend to prove' when because Nor does it follow that the identity. proffered The third her unless it tended to prove identity. irrelevant name, and to her which related present and exceptions, eighth certificate, I her Bowman of to deslruction had to transactions on, were ruled as relating think correctly her to which related deceased, and the fourth perhaps fifth, this name within category, maiden come may born, name, where mother’s where she which asked her where of her father 12th, shelived on the name 1887, July was on asked where she time; lived the sixth which he at West- 12th, Mary and if she ever met R. and July John where, wood, occupations; what were their W. seventh, George knew a man named which asked' if she Camden, in he was then in and whether Bowman July, (cid:127) BOWMAN vs. Pearce, Opinion by Dissenting J. who were ninth which asked her

New Jersey; John whom she lived how and with McGranagan, long Sarah all in my rejected. in were Hagerstown, opinion improperly fourteenth, excep- sixteenth and seventeenth fifteenth questions to the of the following were taken refusal tions rebuttal, to her Bitner, Benner had testified Wassen and after ill alias, an inmate of a an and to house under being going follows: These as questions fame while in Hagerstown. name and did you go by What name your ever 14th. of Edith ? Boyer Hagerstown the in- at time any Hagerstown, Were while you

15th. of ill fame ? mate a house while in sexual intercouse Hagers-

16th. Did ever have you with a married man ? town while in Hagers- ever have relations Did you improper

17th. man than W. Bowman ? town with other any have been allowed. should all my In these questions opinion in that had her as a witness If the law made incompetent whatever, have it would been vain cause for any purpose her her did. But the law makes for to as she except or conversations with the transactions incompetent deceased, so cruel mind the law never contemplated and to my situation, and refuse a woman in her as to muzzle injustice an character, however attacks her her the right deny them, If allowed deny might slanderous. jury gross her accusers who re- her denial and disbelieved have believed of those whom they represented fused the names give This all in her evidence was relevant shame. partners miscon- of a founded upon divorce presumption in- duct, case turned under the actually and which the upon Court; I shown already why, structions in lower and have of how, in abundant evidence my and judgment, if am I of the to the alleged marriage, the identity parties the excluded evi- of relevancy point, correct upon be dence cannot denied. were not discussed in case other prayers to the commit the Court in did not its opinion,

310 Pearce, Dissenting Opinion by J. accuracy on the if it found .any had rulings prayers, sufficient evidence tending first but the lower Court in alleged marriage, granting

the defendant’s thirteenth in effect ruled that a divorce prayer, will, from a former wife who is still in the absence of living, evidence, other from the mere presumed hus band’s second of this marriage, opinion Court gives doctrine, color to the in its reference apparent approval of to, of, Alderson, Rex v. 2 approval Barn. & Twyning, 386. this there is much conflict of text question authority, Upon eminence, ‍‌​​‌‌​​​​‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​​‌​​​​​‌​​​​​​​‌​‌​‌​‍writers and found for and Judges being against this doctrine. Brun,

I do not understand Le Brun Lev. or any Maryland extent, case to to that be found and will that all cases go to, which sustain that doctrine back and rest Rex v. go upon, But the of that case as supra. authority Twyning, sustaining doctrine much shaken in the has been questioned Ellis, Harborne, in Rex 2 in 540; Courts v. Adol. & English Grierson, Cases, 1 Houses and in v. of Lords Lapsley Regina Wiltshire, v. Law 6 B. Div. In v. Reports, Q. Lapsley 366. Bayley Campbell Grierson, said, “what Mr. Justice Lord been much In Rex said Rex misunderstood.” v. Twyning has Harborne, said, no v. “therecan be rigid pre Lord Denman such a question fact;” Regina sumption law Wiltshire, v. speaking presump Hawkins, Justice tion former wife in an into the validity of the death inquiry said, ‘‘the evidence of her of a second marriage, a bachelor to death was that the himself as presented prisoner Whether that would have satisfied be married 1879. for former wife was then dead was a that his jury question decide, it was not left to them to them.” in these cases is the view which The view taken English I considered American in what believe to be best prevails Williams, 65; Williams Wis. cases, which are among 63 Sheats, Ellis, Ia. Ia. Gilman v. 720; Ellis v. I shall not enter into Mass. Rice,

Randlett v. since I do not understand consideration of question vs. by McSherry, C. Opinion Supplemental J. not regard, case commits in this the opinion Rex v. Twyning—, given withstanding apparent approval assenting granting wish understood as to be but I thirteenth prayer. defendant’s of the have been reversed. should think that the judgment

I August 24th, 1905.) (Filed following supplemental delivered' J.,C.

McSherry, opinion. Friday last Record” of saw this in the morning “Daily

I opinion Saturday, dissenting Pearce Judge failed to be it that I Little, likely Bowman and as is case of been, employed to have in the reasoning as I explicit as ought majority of the in the opinion the conclusions expressed should restate some I think I the Court in the same constantly which must be of the I believe kept principles mind, the record so situation presented that whilst the exact decided, in of that sit- view remembered, the precise things ution, may not be misunderstood. the dissenting following

In beginning opinion of the sentences occur: “Certainly, proof her, at the time and alleged by indispensable place kind evidence is to her ‘what inquiring recovery, relation, what that status or and of necessary proba establish be,’ it should it is not controvert that neceessary tive value must such actual be strict ‘as an fact’ lor, I do not lor v. Tay Tay Eng. as stated Ecc. Rep. however, understand, that ‘strict either as proof,’ applied or fact, other issue of is the identity equiva persons; demonstration, aof mathematical or that in determining lent can only to an it alleged marriage, of parties witnesses to the perform satisfied living Now, inquiry ance ceremony.” precise was, dealt in that majority stated opinion opin ion, “What kind of evidence is necessary, to establish status relation New and of Jersey marriage) (the be, inci- consequences what value should when probative Supplemental McSherry, Opinion by C. J. to the sustentation

dent the alleged July, 1887, marriage of of be the the deceased with the crime inevitably must branding of the the innocent bigamy bastardizing offspring of of of situation, It was with reference to that marriage ipoo?" of thus as to kind made what of presented, inquiry an mar- evidence was to establish antecedent requisite and as to what or value that evidence riage, quality probative and it was not in should relation to the issue possess, simple non, non, vel or vel in of marriage legitimacy Jones, Jones Md. The was whether there controlling question sufficient to the evidence to the cir- legally go jury cumstances to establish the identity persons of named in the Jersey New certificate. was there- It marriage a of fore the and question of evidence not legal sufficiency its admissibility of or its when contrasted with conflict- weight ing evidence. .Evidence be admissible to a may fact prove and when admitted be to yet may insufficient legally prove it the fact which was introduced to When tends to it prove. it is the fact for the to jury whether it does prove say prove when it is insufficient to it; legally fact it is duty Court, of to instruct to that upon request, the. jury effect. or standard measure by which th'e of legal sufficiency inflexible, is ascertained is not unvarying same hence is not the case. That which would every be sufficient evidence to establish a when noth- legally of but the mere vel non question is ing presented, be necessarily not sufficient to a legally establish prior .would when incident to the lat- consequence upholding would be convict of to one crime to ter or bas- of a offspring subsequent tardize because the marriage; are different and one essentially conditions because in- be, may, there and most would no likely stance presumptions of favor either whilst in the other against marriage, will be most always in favor important presumptions These innocence latter legitimacy. presumptions in a like the invariably one, arise case present must over- thrown sufficient evidence before by legally there can be said vs. Opinion by McSherry, Supplemental C. J. first mar- sufficient evidence the alleged to be any legally for law always question jury; riage go sufficient evidence whether any to determine legally the Court In presumptions. those destroy strong has been adduced does invade the province deciding so jury weigh because jury, province shall determine to be such evidence as the Court pass upon if true to establish the fact be proved. sufficient legally Now, trend of the in the majority opinion the whole argument to show that the entire evidence showed or was intended on con- the subject personal offered by no of series of number probabilities; proba- sisted merely the of constitute “strict because sum total bilites could proof,” not at best be itself a which was only probability them all would to a moral because a prob- equivalent certainty only the never exclude wholly probability: could ability, opposite mere not contravene the That this could probability presump- from the tions of innocence undoubted legitimacy arising of second for these fact marriage presumptions outweighed it mere a mere and therefore that probability) probability (the furnished no sufficient evidence to to the to legally go jury the first marriage. prove dealt with majority conjectural

The opinion probabili- which, ties the absence of of thing greater probative value, assumed, from ex be inferable gratia argumenti, stated in It was not denied it is not the facts the record. now that it is those were married at possible doubted people in her a Camden as insists Hut petition. possi- be must not confounded with a because bility probability, prob- ability not to but to our calculations about belongs things, is possibility whilst essence things; things. so, always but the possible, improbable

probable equally is, be or probable may possible may improbable, As as it is happen. so far may possibility, nothing until ceases to be a mere potentiality possibility whatever, has no value Courts becomes reality, probative an evidentiary cannot bare fact. regard possibility vs.

Supplemental Opinion by McSherry, J,C. As the “strict could not be requirement demanding proof'” evidence which gratified by established furnishing nothing more than a mere aas bare has no probability, possibility value, the probative of innocence and presumptions legitimacy law, as a prevailed, matter and left nothing contravening them for the to consider. The insufficient evi- jury legally dence insufficient, because created no conflict between legally itself and the and hence there was noth- existing presumptions ing carry question personal identity jury. In the this case is dissenting, opinion supposititious put: that there “Suppose was no of a second allegation but that there was issue of the alleged marriage Furst, Catharine and that B. McGranagan, Clyde nephew deceased, who, situation, in that would be enti- - tled to the whole of his if estate the with Cath personal erine established, were not to withdraw McGranagan seeking the case from the jury identity upon question parties, the same should here. If he testimony given effort, succeed in that result would be to bastardize innocent issue of that it be supposed Can marriage. such case the Court would there was no say sufficient to legally identity answer, ?” I most in that unquestinoably supposed case the could not declare the evidence of insufficient, that, because legally evidence would be in har- with and in of in mony favor support legal peresumption issue, be, and would not legitimacy supposed it is in the case actually with that presented, pre- conflict case, In start with the sumption. supposed you presump- tion of as to the issue of the legitimacy, to Catherine and the evidence adduced would McGranagan, strengthen it; and would not real whereas presumption antagonize case, adduced, that same evidence is not to support presump- it, tion with but to overthrow two adverse pre- consistent namely, that the deceased was sumptions, presumption innocent of the crime of bigamy, presumption because, of issue the second It is legitimate. vs. LITTLE by McSherry, Supplemental Opinion C. J. case, not clash any legal the evidence does the supposed it excluded; and is just pre- not be that it would presumption to with, is not definite enough clash it does because cisely refute, legal to two contrary presum- strict constitute in the to tions, is insufficient it legally case the supposed of the case. The aspect aspect present case, and actual diametrically aspect is opposite is excluded The evidence exists between them. no analogy issue of a it tend to bastardize may because merely it merely because would it be admitted second nor marriage, of a contested to the issue marriage; relieve might operate in the too inconclusive excluded, one because it would be it of legitimacy; to overthrow legal presumption if of instance, in the other becausе though would be admitted inconclusive to establish the fact itself more too without still tend to the presumption it would support marriage, an includes anterior presumption legitimacy implicitly has for can be no where there legitimacy marriage; Whilst sufficiency been no marriage. legal how it be made to “upon to an issue cannot depend support case,” be result of the it in some instances may affect the may it conclu- made whether in law is definite' or to depend upon to an legal sive overthrow intervening existing enough If is not in the sufficient legally presumption. opinion that, do then it to to the Court to is not sufficient legally go That in the decided case. precise point the jury. is not a opinion

There suggestion majority it, wffio either writer of it or concurred in any sup- Judge is, instance, “the that “strict proof” equivalent posed What we did was that of mathematical demonstration.” say could not inferences take permitted place improbable and that such inferences were powerless of strict proof, of innocence and be- legitimacy, overcome presumptions is suffi- cause those evidencewhich yield only presumptions cient establish a mental which amounts to conviction Now, moral a “mathematical certainly. demonstration” from a “moral of dem- certainty.” different Evidence wholly

Supplemental Opinion by McSherry, C. J. truths—truths as to which the necessary onstration relates is not involves not what contrary merely supposition true, what and cannot be is also absurd—whereas moral evidence is the basis of It follows obviously, truth. contingent that the convictions which these distinct and dissimilar classes evidence are are necessarily capable producing very one, result; absolute is different In certitude natures. to which moral of assurance of certainty, degree highest admit, which truths of the latter class is inferior. necessarily Ev., Wills Moral full Cir. is that certainty complete 5. assurance which admits of no and induces a sound degrees, without mind to act doubt the conclusions to which it 2, Elements, leads. naturally reasonably Stewart’s ch. then, It is sec. attainable in precision apparent, is the one case of a nature of which the other does not admit. It historic would of an fact strange require proof kind of or an event or occurrence same ordinary which as that establishes equality reasoning bases and between the same triangles upon parallels; equal is and there whatever in the from majority nothing opinion can be inferred that when we said “strict proof,” meant which would an assurance produce to moral we had the reference amounting certainty, slightest to a mathematical demonstration.

It is reliance was objected dissenting opinion residence, an assumed fact as to Bowman’s when placed upon the record showed the was wrong reality majority opinion certificate described Bowman as saying a resident of The truth is the “Haleystown." being prmtedrecord certificate on file in the wrong. Orphans’ original Court states that Bowman County distinctly Washington hence the con- lived “Haleystown”—not Hagerstown—and on in clusion drawn from that circumstance and relied This has the Court’s criticism. opinion, open record correct verify printed by referring right .the If this documents. sec. original Code.) (Art. not so a error an issue raised totally change printer’s might vs. LITTLE. Opinion by McSherry, Supplemental C. J. a said, We “The controversy. the decision and control of Haleystown W. Bowman was that George certificate shows of E. Penn- Harrisburg, McGranagan married Catharine does not show that the W. Bowman George but it sylvania; the identical G. Walter Bowman Hag- named was therein in erstown, controversy.” is That estate involved w’hose from the widely interpretation placed differs very proposition from the latter: I quote it in the dissenting opinion. hеre, in “to this because allude,” “I the says Judge Pearce, certificate, reason” it that is said this of the Court opinion for show, “does not statement as to inaccurate residence) (the from named therein was Hagers- the W. Bowman George town, Haleystown, he was from but does show that Bowman was the same W. whose that he not therefore What said was that is here in we controversy.” estate of Bowman—that it to show the identity certificate failed same not show that the named therein does person far very whose estate was in is controversy; person Bowman whose he was not same” from saying, “therefore a There is a distinction between estate was controversy. individual, a statement identity of an to show failure is he is In asserted to be. that the individual not person in the other you one case nothing predicated identity; certificate not named aver Bowman distinctly did We controversy. whose estate is Bowman deduction, because the latter averment or draw asimilar make it would a to show as to anything identity from total failure conclusion to infer positive have been logically impossible respecting identity. I allude. As the is another matter to which wish to

There but that proved nothing certificate alone standing some had been of some man to woman performed, until as evidence for the plaintiff valueless utterly established. man and that woman had been identity of that in his lifetime had with” the deceased The “transaction To prove was the New marriage. p'aintiff Jersey that marriage it was not necessary prove “transaction” .Supplemental Opinion by McSherry, C. J. had been

ceremony but further performed, the plaintiff was the identical woman who did marry Bowman. Conse- her quently personal as an integral essential con- stituent “transaction Bowman, had with” cannot be from that segregated “transaction” and cannot be treated as an independent circumstance. Hence she whatever disability pi was under to her own fact included the .equally prdof the same her way of as. a to that party It is conceded marriage. plaintiff could not on the go witness stand and am say, “I the Catha- ,rine who McGranagan married W. Bowman.” If so, be what can upon she be allowed to principle to testify A, B, C, D, facts which if they prove anything, prove that she very identity could not establish her direct testi- by Her mony? a identity except indicating that she was party to the was alleged marriage wholly irrelevant. If she were to to permitted testify collateral facts from which that identity inferred, could be she would indirectly to the “transac- testify deceased, tion had with” the though inhibited from expressly directly to that testifying fact. difference between prov- direct by a ing testimony transaction with a man since de- ceased, and the same proving transaction facts from by proving inferred, which the transaction be is in may a difference kind of evidence adduced and anot difference in the thing to direct, be In the proved. one case the evidence is circumstantial, it other is but in both the fact be to is proved the same transaction. The statute precisely declares that “no to shall a cause be allowed to party testify as to transac- deceased; tion had with” a since it person but does not say the restriction shall extend no farther than to the exclusion of direct a transaction Proving witnesses is testi- testimony. transaction, as to a whether that be direct fying circumstantial; which, and the disqualification way, statute, not existed imposed antecedently, ap- is, to as the a situated without plies party any regard to to the nature testimony, without refer- say, is direct or ence to it circumstantial. In whether the dissent- BOWMAN vs. McSherry, Opinion by J,C. Sbpplemental

Md.J never “to mind the law contemplated it said my opinion ing a her situation as to muzzle woman in an injustice so cruel her char- attаcks deny any refuse her the right or slanderous.” gross acter however law that a party a rule the common

It was general be witness either for himself case could not in civil record obtained cause; that rule or for a co-suitor By of the Evidence Act until the Maryland adoption from interest named the disqualification arising Act just removed. wholly Except but not to a extent great removed, so has been instances where that disqualification those existed continues because continues; antecedently but it it still law, it has been because imposed common at the “muzzle” a litigant. mistake, submit, we cited because is a suppose

It that we case of Rex v. Inhabitants Twyning, on the relied the doctrine that divorce color” to thereby “gave-apparent wife, is still will the absence who living, from a former evidence, from mere of the hus presumed other such And it is a second mistake marriage. suggest band’s first, because, noth case determines Twyning’s a supposition sort, the case to an citing entirely and by support ing we be held some cannot to have approved proposition different because, wc ex all; decide at secondly, it did not thing to ourselves that declined commit to very proposition; pressly because, that there determined thirdly, having distinctly sufficient evidence of was no legally and, certificate, therefore, that there the New Jersey

named in had ever sufficient that was no legally Bowman, to it would have been pal G. Walter been married that as well as flatly contradictory say illogical pably from her; that he had obtained divorce was a presjimption a valid marriage. a divorce necessarily presupposes because which as stated situation in The precise Twyning’s “is one of the lead certainly Best on marg.) Presumptions,(p. 58 conflicting on the subject presumptions,” authorities ing and went of a who enlisted this : the wife shortly person, 320

Supplemental Opinion McSherry, C. J. abroad soldier, as a of, and was never afterwards heard had married another man in little than more twelve months after the first husband’s departure. There was a presumption the woman was not of the crime guilty of bigamy and that the issue second marriage was legitimate- There was also first conflicting presumption hus band was alive; still Bench held Queen’s of innocence—the presumption presumption woman of the crime of guilty bigamy—should pre vail until disproved; and the counter presumption, or probability, that the first husband was alive when the second took did not place, inno disprove presumption cence. The is a familiar one and principle prevails in civil as cases, well in criminal though some instances exceptional it has been held not to be reason of their applicable by pecu liar circumstances. The presumptions of innocence and of are legitimacy prcesumptiones juris are until dis good conditions, proved. The former has been held, under some prevail, as law, matter over the conflicting presump life, tion Ev., 100; continuance of 1 respecting sec. Jones v, Kelly Drew, Allen, v. 12 Rex In the last cited case 107. was relied on Twyning Court of Supreme Judicial Massachusetts. It was this Court in expressly approved by Ev., in 1 Jones, Md. Green. sec. 398; 35; Jones Ev., on 1; Ev., sec. note Roscoe on 15; 1 Starkie Jones Ev., L.; & 22 Am. note note 379; Eng. Ency. 5, and S., v. U. S. In the last-named case the U. Coffin words, Court used this forcible “In other Supreme language: is ‍‌​​‌‌​​​​‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​​‌​​​​​‌​​​​​​​‌​‌​‌​‍an instrument presumption (of innocence) accused, created the law in his favor of one inno whereby cence established until sufficient evidence introduced overcome the proof which law has created.” We held in that no sufficient evidence majority opinion legally n identity named in the New certificate had Jersey been introduced to overcome the of innocence presumptions into refrained from legitimacy; distinctly going discussion as to divorce. presumption concerning 18th,

September 190$. (Filed 3rd, October 1905.)

Case Details

Case Name: Bowman v. Little

Court Name: Court of Appeals of Maryland

Date Published: Oct 3, 1905

Citation: 61 A. 223

Court Abbreviation: Md.