29 Mo. 259 | Mo. | 1860
delivered the opinion of the court.
We think the first instruction which the court gave, in this case, at the instance of the defendants, was erroneous. There was no presumption that a marriage, which was proved to have existed at one time in Germany, continued to exist here after positive proof of a second marriage de facto here. The presumption of law is, that the conduct of parties is in conformity to law, until the contrary is shown. That a fact, continuous in its nature, will be presumed to continue after its existence is once shown, is a presumption which ought not to be allowed to overthrow another presumption, of equal if not greater force, in favor of innocence. The fact of a marriage in Germany, which was established in this case by the declarations of one of the plaintiffs, was entirely consistent with the validity of the marriage de facto, which, beyond all dispute, existed between the parties here, and after they had produced their marriage certificate, with proof of cohabitation as husband and wife since its date, the presumption was that this marriage was a lawful one, and that the former marriage in Germany, if any such was established, had been dissolved. •
There was not any evidence in this case, so far as the bill
It is not by any means clear that the declaration of the wife in this case ought to have been allowed. The general principles of public policy governing the relation of husband and wife do not permit the character or fortune or any other personal rights of the husband to be affected by such loose declarations of the wife as were in proof in this case. The existence of the wife is merged in that of her husband, so far as responsibility to third persons is concerned; and therefore what she does or says can not in general be' used as evidence against him. There are, undoubtedly, exceptions to this rule, some of them growing out of the conduct of the husband in holding out his wife to the world as his agent, or in permitting her to act in certain respects as a feme sole; some based upon the necessity of the case, or springing from the paramount importance of affording protection to the wife even against the violence or injustice of the husband. But the present is not within any of these exceptions. There are cases of actions brought by husband and wife where the wife is the meritorious cause of action, in which her declarations have been allowed and properly. Thus, in a suit by husband and wife to recover compensation for services of the wife, her admissions of payment have been permitted, because the wife has been allowed to act either on her own account, or as a quasi feme sole, or as an agent of her husband. But such cases furnish no precedent for permitting a wife to criminate both her husband and herself. There can be no implication of any assent of the husband to any such declarations, and therefore no ground upon which they can .be used against him.
The other judges concurring in reversing the judgment, the case will be remanded.