Holmes v. Holmes

6 La. 463 | La. | 1834

Bullard, J.,

delivered the opinion of the court.

The plaintiff alleges that his wife and child came as passengers from Liverpool to New-Orleans in a vessel of which the defendant was master; that she engaged a cabin passage, but agreed to sleep in a state-room in the steerage, the staterooms in the cabin being taken up. He claims damages for a violation of the contract, alleging that his wife was driven out of the cabin, compelled to eat with the servants, and in other respects ill treated on her passage.

The defendant admits that “ one Eliza Holmes, with her child,” did come out passengers in the ship, but he alleges that he did not violate his contract, and that any change in ' her accommodations on board was justified by her improper behaviour. He adds, that being ignorant whether said Eliza be married as is alleged by the plaintiff, he requires Pro°f of the marriage, which he denies to exist. On the trial, the plaintiff offered witnesses to prove that the plaintiff and Mrs. Holmes, who were then in court, had lived New-Orleans a length of time and had a family, and were reputed husband and wife. This evidence was rejected by the court, a bill of exceptions taken, and a judgment of non-suit being rendered, the plaintiff appealed.

gardediag?nis m> oM '^contract) highly favoied. code doef'nÓt i nfarriage not prea 1 cení, andanot aet^sigiied '’by”!! witnesses and the iTm'ake such an act exclusive evidence of a^mavlaws relating to rectory to^thosé aiithonsedtocei- Marriage may speSesVedory ftedTyUw^wWch pose iCifgher specíes of evidence in the power of the party. Co- and^vife'furnishevidencoS“mofiya preccdmg mar-

It is contended on the part of the appellee, that as the Code requires marriages to be celebrated in the presence of three witnesses, and an act to be drawn up and signed by the parties, the witnesses, and the person performing the ceremony, parole evidence is inadmissible to prove a marriage in this state.

Marriage is regarded by our law in no other light than as civil contract, highly favored, and depending essentially on free consent of the parties capable by law of contract-Our code does not declare null a marriage not preceded a license, and not evidenced by an act signed by a certain number of witnesses and the parties; nor does it make such an act exclusive evidence of a marriage. These laws relating to forms and ceremonies, here regarded as directory to those alone who are authorised to celebrate marriages, are intended to guard against hasty and inconsiderate marriages in defiance of parental authority. Like other contracts, it may be proved by any species of evi» dence not prohibited by law, which does not presuppose a higher species oí evidence withm the power 01 the party; and cohabitation as man and wife, furnishes presumptive, evidence of a preceding marriage. It is not to be presumed those who hold themselves out in society as man and wife, who are rearing a family of children at their domestic ° J ^oar<^5 t° whom the father gives his name, over whom he exercises a parent’s authority, and administers a parent’s protection and support, are living in open disregard of public morals, and that their common offspring are bastards; such a family is already in the possession of a civil condition or status, not to he questioned lightly and collaterally. In the present case, the defendant, when he received on board his ship Mrs. Holmes and child, must have presumed that she was a married woman or a widow. When he after-wards treated with the plaintiff about the price of their passage, he dealt with him as the husband and father; no question was then made of his authority.

A bill of ex-exceptions to the rejection of depositions which are not before the Supreme Court, and not specifying the grounds on which they were rejected, is too vague to be examined in this

If a different rule of evidence prevails in France, it is because the Code as well as previous ordinances provided for public registries of marriages, births and deaths, under the care of special officers, called “ officiers de VEtat civil.” Extracts from these registers are declared to be full evidence until proved to be forged; and second, any evidence is inadmissible without first proving that no such register was kept, or that it has been lost or destroyed. Merlin's Repertoire. Verbo Etat Civil. Our law has not enacted such a registry of marriages. We think the court erred in rejecting the evidence offered.

The second bill of exceptions is too vague to enable us to decide whether the depositions ought to have been admitted. It does not appear on what ground they were rejected by the court, nor are the depositions themselves befor us.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be avoided, reversed and annulled, and that the cause be reinstated and remanded for trial, with directions to the judge not to reject the evidence offered to show the cohabitation of the plaintiff with Mrs. Holmes as man and wife, and that the defendant and appellee pay the costs of appeal.