56 N.H. 418 | N.H. | 1876
Lead Opinion
FROM MERRIMACK CIRCUIT COURT. The construction of Gen. Stats., ch. 161, secs. 16, 17, contended for by the plaintiff, would assuredly be, as the defendant says to legalize bigamy. This extraordinary consequence is avoided, if we understand that the acts have reference only to such persons as are competent to contract matrimony together; and that this must be so is quite too plain for argument. A contrary view would be no less absurd than to hold that when the legislature point out the mode in which any other contract may be entered into, and the evidence by which it must be sustained (as, for example, in case of the statutes of frauds), they thereby remove all disqualifications, such as infancy, coverture, and the like, and empower all persons to bind themselves by such contracts as they may enter into with the formalities prescribed. These acts were beyond questions intended for those who might legally *420 become husband and wife, and not to encourage and protect adultery by pointing out a mode in which an existing matrimonial tie might be dissolved at the option of the parties, and another equally yielding and temporary be substituted in its place.
The evidence entirely fails to support the declaration. The fault was not matter of abatement, and there should be judgment on the report for the defendant.
Concurrence Opinion
This case cannot be controlled by sec. 16, ch. 161, Gen. Stats., because that section requires that the cohabitation should have continued until the decease of one of the parties. It might be that, after the decease of one of the parties, the policy of the law would not deem it necessary to inflict upon other innocent persons — as, for instance, the children of such a marriage — the unfortunate consequences — as, for instance, illegitimacy — of their parents' transgression, but would deem persons so cohabiting to have been legally married, i. e., treat the survivor and the children as if there had been a legal marriage. It may be that the policy of the law would not deprive children of the inheritance of their father's property in favor of collateral, perhaps remote, heirs. There is no pretence for applying the statute here, because neither party is dead.
By section 17, the evidence mentioned in that section is made competent, but not conclusive; and it may therefore be, as in the present case, rebutted.
Concurrence Opinion
The plaintiff seeks to recover damages for the loss of service and expense occasioned by an assault upon his wife by the defendant. The evidence shows that the marriage ceremony was performed in May, 1867, and that they have lived together as husband and wife since that time, acknowledging each other as such, and being generally reputed as such, but the evidence also shows that Mrs. Emerson had been previously married to one Pillsbury, who is still alive, and from whom she has never been divorced. Her subsequent marriage with Emerson was, therefore, absolutely null and void — 2 Kent Com. 79; and it plainly follows that he cannot maintain this action. The relation of husband and wife, which is so essential in order to maintain this action, does not exist. It is true that the statutes make acknowledgment, cohabitation, and reputation evidence of marriage; but there is no ground for arguing that such evidence is conclusive. It is evidence to be received, but subject to be explained and rebutted, as any other evidence is. To parties capable of contracting marriage, it affords an opportunity to supply proof of marriage when the witnesses of the marriage ceremony may be dead or unknown; but to hold that evidence that either party has been previously married, and that the marriage had never been dissolved, cannot be received, would be lending the assistance of the law to conceal the crime of bigamy. To adopt the language of the defendant's counsel, — "The statute does not authorize bigamy, nor offer a premium and cloak to adultery by way of estoppel."
Exceptions overruled. *421
