110 Mass. 314 | Mass. | 1872
This was an action of tort for the seduction of Ellen Meyers, alleged to be the plaintiff’s wife. The presiding judge ruled that there was no evidence to authorize the jury to find the fact of marriage between the plaintiff and said Ellen, and directed a verdict for the defendant. It was formerly held, in actions of this kind, that a marriage in fact must be proved. Morris v. Miller, 4 Burr. 2057. Leader v. Barry, 1 Esp. 353. But the rule has been changed in this Commonwealth. The St. of 1840, o. 84, provided that “ whenever, on a hearing of any application for divorce, the fact of marriage is required or offered to be proved, evidence of. admission of said fact by the party against whom the process is instituted, or of general repute, or of cohabitation as married persons, or any other circumstantial or presumptive evidence, from which said fact may be inferred, shall be received as competent evidence for consideration, whether the marriage to be proved was contracted in this Commonwealth or elsewhere.” The St. of 1841, e. 20, extended these provisions “ to all cases where it shall become necessary to prove the fact of marriage in any hearing before any court in this Commonwealth.” These statutes included cases like the present, and are reenacted in the Gen. Sts. <?. 106, § 22.
In this case, the jury would be authorized to find, upon the tes fcimony of the plaintiff that he and Ellen Duso went before Hasler, a justice of the peace, believing him to be such; that the plaintiff stated in Hasler’s presence and hearing that Ellen was his wife, and that they did this with an intent on the part of both to contract marriage before him in'good^ faith. This was done at Webster, the place of his residence, and was followed by cohabitation and the birth of children, under the belief that they were lawfully married. But Hasler testified “ that he did not understand that he married the parties at that time, and that all that was said by either was that the plaintiff introduced the woman as his wife.” This is the only evidence that raised a doubt about the iact of marriage. If the jury should believe that the plaintiff’s memory and statements were the more accurate, they might find upon this evidence that there was a marriage in conformity with our statutes; for no form of words is necessary for the solemniza
The policy of the law, as thus expressed, is strongly opposed to regarding a marriage, entered into in good faith, believed by one or both of the parties to be legal, and followed by cohabitation, as void. A liberal construction of the statute authorizes us to construe it as including a case where the parties go before a magistrate or minister, make a marriage contract in some form in his presence, in the belief that he sanctions and assents to it in his official capacity, and cohabit as husband and wife afterwards, believing that they are legally married, though the magistrate understands the matter differently, and does not intend to act officially in the matter. The misunderstanding between the parties and the magistrate may be regarded as an informality not rendering the marriage void. The spirit of the statute would be violated by holding the parties to be fornicators and the children illegitimate.
