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Gibson v. Gibson.

cept for criminal conversation, cohabitation and reputation are sufficient evidence. Fleming's Case, 8 Blackford, 234. Trimble's Case, 2 Ind., 76.

In Iowa the rule of presumptive marriage after cohabitation has gone to the protection of separated parties, and the implication of divorce, to maintain innocence; as where a husband and wife separate, and the former lives and cohabits for years with a woman who is reputed to be his wife, the law presumes a divorce from the first wife, who may legally marry again. "If the marriage was originally void, subsequent marriage will be presumed to have occurred, if the parties continue together after the removal of the legal impediment." And it was held that, “any mutual agreement between the parties to be husband and wife in presenti, followed by cohabitation, constituted a valid and binding marriage, if the parties are under no legal disability." Blanchard v. Lambert, 43 Iowa, 228. The rule of evidence has been extended in Iowa. In the prosecution of Mary Wilson for adultery with Thomas Hawthorne, October 30, 1865, the prosecuting witness, Hannah Hawthorne, testified that she was married to Thomas in 1846, in Canada, by a Baptist preacher, had lived with him continuously and borne him eight children. The defendant objected that the proof of marriage was insufficient; that it was necessary to prove that the marriage was solemnized by an authorized person under the laws of Canada, which was overruled, and the jury instructed, "that the testimony of either the husband or wife as to the fact of marriage, with proof of continued cohabitation, raises such a presumption of an actual legal fact as requires the defense to rebut it." Dillon, J., said that, "record evidence of marriage was not indispensable, and that the law given by the court was the correct rule. We are aware of the state of authorities on this question, but do not deem it necessary to enter upon the discussion. We have ruled similarly in relation to bigamy, where the

and

Gibson v. Gibson.

stringency should be equal to that in adultery," in The State r. Williams, 20 Iowa, 98.

Section 4, chapter 25, of the act of Divorce and Alimony, provides that, "when the validity of any marriage shall be denied or doubted by either of the parties, the other may file a petition (as in cases for divorce) for affirming the marriage, and upon due proof of the validity thereof, it shall be declared valid by a decree or sentence of the court, and such decree, unless reversed on appeal, shall be conclusive upon all parties concerned."

Though this statute, under which this action is brought, has been in force for a considerable period, and like statutes are in force in other states, no strictly analogous precedent has been found reported. Decrees of nullity in cases of voidable marriages in Massachusetts, Maryland, Vermont, and Kentucky have been examined and found irrelevant to the question at issue.

The main question recurs upon "due proof of the validity of the marriage." It is testified by the appellee that it was entered upon with due ceremony and form, and concluded by cohabitation as husband and wife, which was recognized and admitted by the appellant from August 2, 1881, to November 2, 1884. Her competency as a witness, in this form of action, has been carefully considered. In all complaints against the husband for desertion the wife has generally been admitted as a witness to prove the fact, and that of the marriage. The condition, if any, has been that her testimony would be considered as a chancellor considers all testimony, if relevant and credible to give it that weight to which it was entitled, and no

more.

To the once general rule that husband and wife are incompetent to testify against each other, or to prove their marriage, has succeeded a more liberal, if not a contrary rule, one allowed from the necessities, partly for the protection of the wife in her life and liberty, and partly for

Gibson v. Gibson.

the sake of public justice. 1 Greenleaf, 343. From the nature of this case, the testimony of the wife as to the contract of marriage has been accepted and considered. The exclusion of her testimony, on the former ground of identity of legal rights and interests essential to the social happiness and confidence of the parties, would be an enforcement of the former rule in the absence of the reasons for it. The marital happiness and confidence of the parties are not in esse. If the statute is pari materia with that of divorce, there would seem to be equal reason for accepting the testimony of the wife as in divorce cases.

It is regarded as settled by judicial authority throughout the United States that marriage, in its legal sense, is a civil contract; that it is not indispensable that a clergyman or magistrate should be present to authorize and confirm the contract in order to give validity to the marriage. Therefore if this was made, as appears, by contract, either in Iowa or Nebraska, followed by celebration and cohabitation in Illinois, it amounts to a valid marriage, and is not voidable at the will of either party, but is as binding as if made in the presence of chosen witnesses at the Christian. Altar. The testimony of the appellee is neither improbable nor inconsistent. It is corroborated by the appellant as to time and place of cohabitation following the marriage; by his conduct and correspondence with the appellee; by his direct acknowledgment of the relationship; and by letters addressed to the witnesses who testified to the fact, and by voluntarily assuming the relationship of husband before the appellee's family and before the public. It is further manifested in his letters in evidence, the words and sense of which no exculpatory explanation of the writer is now competent to efface.

On the other hand, the theory of illicit intercourse as a defense, and the testimony of the appellant, seem improbable. Neither is corroborated by credible testimony, nor by circumstances concurrent to either pretension. The

Reed v. Fletcher.

theory subjects the moral character of the appellant to censure, and his testimony impeaches the credibility of his written admissions.

From the weight of evidence and the authorities cited, it is our opinion that the court below had ample jurisdiction of the referee's report, with the errors and exceptions therein, and had ample authority to set aside the findings of the referee, and adjudge the whole issue according to the weight of evidence presented.

The judgment is therefore affirmed.

THE other judges concur.

JUDGMENT AFFIRMED.

GRACE K. REED ET AL., APPELLEES, V. JOSEPH C.

FLETCHER ET AL., APPELLANTS.

CASE STATED. R., J. & Co.,

1. Attachment: GARNISHMENT:
and L., E. & Co., each having claims against one L. T., a retail
merchant, who was in failing circumstances, severally sued,
took out orders of attachment, which were served by the sheriff
by attaching the goods of L. T., worth about $6,000. The Blue
Valley Bank held a chattel mortgage on the goods for about
$2,500, upon which it replevied the goods from the sheriff. R.,
J. & Co. and L., E. & Co. then each took out process in garnish-
ment in their several actions, which were duly served on the
said bank as garnishee. Afterwards, L. S., who was also a
creditor of L. T., obtained five judgments against him in the
county court, and caused executions to be issued thereon, and
placed in the hands of J. C. F., a constable, who, by virtue there-
of, seized the balance of said goods, of the value of about $3,000,
remaining in the possession of the garnishee, bank, after the
satisfaction of its mortgage, and sold the same at public ven-
due, retaining the proceeds. The bank answered as garnishee
in the several cases, setting up the facts as above. Before the
causes of R., J. & Co. and L., E. & Co. v. L. T. were, or could
be, brought on for trial and judgment in the district court, the

24 435

44 496

24 435

45 128

24 435

51 622

24 435

62 487

2.

3.

4.

Reed v. Fletcher.

balance of the goods had been seized and converted by J. C. F, as above stated, and the Blue Valley Bank had ceased to exist. In an action in the nature of equity by R., J. & Co. and L., E. & Co., against all of the other parties here named, except L. T., for the purpose of enforcing their liens upon the proceeds of said goods in the hands of J. C. F., Held, That by the service of the several orders in garnishment on the said bank, the goods of L. T. in its possession, over and above sufficient thereof to satisfy its mortgage, were constructively placed in the custody of the law, and the plaintiffs in garnishment had an equitable lien thereon for the amounts of their respective claims. Whether J. C. F., constable, by virtue of the executions in his hand, obtained legal possession of said goods is not decided.

:

:

But his possession of said goods, if legal, was subject to the rights and equitable liens of the plaintiffs in garnishment.

:

For the reasons set out at length in the opinion, Held, That the plaintiffs in garnishment have not lost their respective rights to the proceeds of the sale of said goods by laches.

APPEAL from the district court of Gage county. Heard below before BROADY, J.

J. E. & T. D. Cobbey, for appellants, on alias ord er of attachment, cited: Randle v. Mellen, 8 Atl. Rep., 573. Sec. 221, Code. Wescott v. Archer, 12 Neb., 349. U. P. R. R. v. Smersh, 22 Neb., 751. Maxwell's Practice, form 706, p. 505, Edition 1885. Reed v. Maben, 21 Neb., 701. On liability of garnishee, cited: Russell v. Duflon, 4 Lans., 399. Dolby v. Tingley, 9 Neb., 417. Rice v. Whitney, 12 Ohio State, 358. Laches of plaintiffs. Clark v. Patterson, 5 Atl. Rep., 564. Hall v. Carney, 3 N. E. Rep., 14. Drake on Attachment, Sec. 360. Meacham v. Strong, 13 P. R., 245. Blake v. Hubbard, 7 N. W. Rep., 204. Ray v. Harcourt, 19 Wend., 495.

Burke & Prout and Hazlett & Bates, for appellees, cited: Willard's Equity, 49. Weaver v. Cressman, 21 Neb.,

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