| N.C. | Jun 5, 1859
The only question arising in this case was upon the sufficiency of a deed from one Avy Hood to the defendant. It was conceded in the argument, that unless that deed was good, the plaintiffs were entitled to recover. The right to the estate being in the said Avy, she intermarried formally under license, and before witnesses, with one James Hood. She and Hood made a deed, as husband and wife, to the defendant, but the same never was authenticated as the act directs by the privy examination of the feme. She was proved to be dead, and the plaintiffs' lessors, her heirs-at-law. This appearing to the Court, by the exhibition of the imperfect deed, the plaintiffs insisted on their right to the premises.
The defendants, however, insisted that Avy Hood's deed was good, because the marriage between her and James Hood was null and void, he being at the time the same was solemnized married to another woman, one Grace Patterson, who was then alive; and to make out that case, it was in evidence that he had lived with Grace Patterson; that they had several children, and passed and were recognised as man and wife.
His Honor charged the jury, "that where a man and woman lived together, and passed and were recognised as man and wife, it was evidence, to submit to them, of a marriage," and also, if such marriage had taken place between James Hood and Grace Patterson, and she was alive at his marriage with Avy Johnson, the latter marriage was void, and her *422 deed, though made in the name of Avy Hood, and made as a married woman and signed by her pretended husband, and not registered, was, nevertheless, sufficient to pass her estate in the premises. Plaintiff excepted.
Verdict for the defendant. Judgment. Appeal by plaintiff. We agree with his Honor in the position, that the case turned upon the validity of the marriage between Hood and Avy Johnson, and that depended upon the question, whether there had previously been a marriage between Hood and Grace Patterson.
It was in evidence, that Hood and Grace Patterson "had lived together several years and had several children, and passed, and were recognised as man and wife," and the jury, by their verdict, say they were satisfied that the said Hood and Grace Patterson had been married.
There was direct evidence of the solemnization of a marriage between Hood and Avy Johnson, and the question is, does this direct evidence of the one marriage exclude and render incompetent, or insufficient in law, thecircumstantial evidence upon which the jury have found the former marriage?
It is held to be a general rule that reputation, cohabitation, and the declaration, and conduct of the parties, are competent evidence of a marriage between them, except in two cases, i.e., on an indictment for bigamy and in an action of "crim. con.;" 2 Greenf. Ev. sec. 762; Burt v.Barlow, I Doug. 170; Morris v. Miller, 4 Burr. Rep. 2057; Wilkerson v.Payne, 4 T. R. 458; Weaver v. Cryer, 1 Dev. Rep. 337. The reason given by Lord MANSFIELD, for making an exception in the action for "crim. con." is, that "it is penal in its nature and like a criminal proceeding." But in criminal proceedings, it is confined to an indictment for bigamy; and no particular reason is given for making that exception; it would seem that what is competent evidence in one case ought to be *423 in another, provided it satisfied the jury of the fact of the alleged marriages. But these two exceptions are fixed and, stare decisis. We are not, however, disposed to make another exception without a reason. Especially, as, in this State, there is no registry of marriages, and frequently, circumstantial evidence is the only mode of proving one.
Our attention was called to Hassall's case, 12 Eng. Com. L. Rep. 207. The prisoners were indicted for larceny; the female prisoner (as a single woman). Her defense was that she was the wife of the other prisoner and subject to his coertion. It was proved that on the occasion when the money was stolen, the prisoners spoke of, and treated each other, as husband and wife, but the witness, who were the prosecutor and constable, "had never seen them except on that particular transaction." GARROW B. held this evidence insufficient to establish a marriage, as it was quite evident the prisoners had assumed the relation of man and wife, as a pretext for an opportunity to commit larceny. He announces the general rule and the two exceptions, and, admitting that general reputation and a continual living together, and passing, and being recognised as man and wife, would be competent and sufficient in such a case, under the general rule, to make out a defense for the woman; he was of opinion, and we entirely agree with him, that passing themselves off in that way, on a single occasion, was no evidence of their being man and wife.
There is no error.
PER CURIAM, Judgment affirmed.