Town of Greensborough v. Town of Underhill

12 Vt. 604 | Vt. | 1839

The opinion of the court was delivered by

Bennett, J.

— The paupers, whose settlement is drawn in question, are the alleged wife of one Burdick, her child, by Burdick, and also another child of hers, born before her alleged marriage with him. It is admitted in the case that the legal settlement of Burdick is in Underhill, and the only question of law presented in the case is this. Is the intermarriage of Burdick with the pauper, in 1836, rendered illegal and void from the fact of her intermarriage with Hyland in 1834, who, after a short cohabitation with her, absconded and has not, since been heard of ? To render the second marriage illegal and void, wq must presume the continuance of the life of Hyland down to the time of the second marriage; and though, as a general principle, we are to presume the continuance of life for the space of seven years, still, when this presumption is brought into conflict with other presumptions in law, it may be made to yield to them, / We are in all cases to presume against the commission of crime, and in favour of innocence ;\md the result will be, if we suffer this presumption to yield to the other, we, by presumption alone, pronounce the second marriage illegal and void, and the parties guilty of a heinous crime. We should all" agree, very readily, that the parties ought not to be convicted of the crime of adultery in consequence of their cohabitation after their intermarriage, upon the presumption that the first husband was living at the time of the second marriage, and we see no good reason why the principle should not be the same in this case. In the case of Rex v. Twyning, 2 B. & A. 386, the woman married again within the space of twelve months, after her husband had left the country ; and yet the presumption of innocence was held to preponderate over the usual presumption of the continuance of life, and this, too, in a case involving a question of settlement.

Our statute, which makes seven years absence, unheard from, a good cause of divorce, is relied upon by the plaintiff; but we do not see that it can have any effect.

That statute is founded upon the common law presumption of death, upon an absence, unheard from, for that term of time, and was intended to furnish a means of relief, in cases where a person wished to contract a second marriage, against any possible embarrassment from the return of the party to the first marriage. It can have no effect to control the presumptions of law in a case like the present. On the whole, then, though our first impressions might have been to the contrary, we come to the conclusion that there is error in the proceedings of the county court, and the judgment below is reversed and a new trial sranted.