#### *Reason Fryer et al. vs. Jonathan Fryer et al.*

The law of marriage in South-Carolina; what the contract of marriage is; how it may he entered into; the distinction between the contract itself, and the evidence of it.

An engagement to marry, *per verba, de futuro, copula seguente, held*to be no marriage, the parties, at the time, looking to a future celebration, and not themselves regarding the *copula*as consummation.

*Before*Johnston, Ch., *at ¡Spartanburg, June,*1831.

T.he bill was filed by Reason Fryer and others, claiming to be the only lawful distributees of Richard Fryer, deceased.

Their bill stated that the said Richard died in 1821, leaving an estate, real and personal, which, after directing his debts to be paid, he disposed of, by will, as follows:

*86“ First. I give to my son, Jonathan Fryer, one negro boy, Lewis, one horse, named Star, and one feather bed and furniture.

“ Second. I give to my daughter, Nelly, one negro girl, Maria, one colt, and one feather bed and furniture.

“ Third. I give to my daughter, Mary, one negro girl, Matilda, one colt, and one feather bed and furniture.

*“*Fourth. I give to my daughter, Fanny, one negro hoy, Sam, and the black mare, and one feather bed and furniture.

“ Fifth. I give to my son, David, one negro boy, Daniel, the colt with which the black mare is now in foal, and *one*feather bed and furniture.

*“*Sixth. After paying out the above legacies, and my just debts, I give my beloved wife, Rachel, the balance of my estate) real and personal, to be hers during her life or widowhood; and, after her death *or*marriage, I desire that the whole of my lands be divided, according to quantity and quality, between my two sons, Jonathan and David ; then I desire my executors to sell all the balance of my estate, at twelve months credit; and, after collecting the money, I desire that it be equally divided among all my children, both by my first wife, and my present wife, Rachel.”

The bill stated, that the testator’s son, Jonathan, was appointed executor of said will; that he had assumed the execution thereof, and had possessed himself of the whole estate, by virtue of his appointment.

The bill further stated, that at the time the said testator pretended to have intermarried with the said Rachel, she was the lawful wife of one William Black, who was then living, and continued to live until after the birth of all the children, (to wit, Jonathan, Nelly, Mary, Fanny and Daniel, named in said will,) whom she bore to the said testator — in consequence of which, the said five children were, by the law of the land, bastards.

That the said five children, and their said mother, were, hy the said will, to receive more, among them, than one-fourth of *87the clear nett value of the testator’s estate, contrary to the Act of assembly, in such cases provided.

’ The plaintiffs, claiming to be the lawful children of the testator, by his first, and only yalid marriage, charged that all the legacies in favor of the said Rachel, and her five children aforesaid, were void, so far as they exceeded one-fourth of the clear nett value of the testator’s estate, and prayed that the testator should be declared to have died intestate as to such excess, and that the same be partitioned off and' divided among the plaintiffs.

The widow, Rachel Fryer, and her five children, were made defendants.

The separate answer of Rachel Fryer admitted that the plaintiffs were the lawful children of the testator, by his first marriage: that the testator died, leaving a will, which was truly described in the bill; and that her son, Jonathan, by the testator, had qualified as executor thereof.

She denied that she had ever been married, either to William' Black, or to any other person, except the testator ; that to him she was married between twenty and thirty years before his death, which took place in 1821; that she constantly lived with him, from their marriage to his death, during all which time, to the best of her information and belief, they were regarded by the whole community as man and wife.

She stated, that during the revolution, the British and Tories being very troublesome, one William Black persuaded her to accompany him to the house of her uncle, Josiah East, under the assurance that there she would be safe from the enemy; that, after her arrival at East’s, she, being then fourteen years of age, agreed to marry the said Black; that, in pursuance of said agreement, she accompanied him to the residence of one Edgehill, a justice, in order to have the marriage ceremony performed : but that Edgehill was from home, and they were disappointed; that she, with Black and other persons, who had accompanied them to Edgehill’s, returned to East’s, where, being quite inexperienced, she was induced, by the persuasion *88of Black and the said company, to state that they had been married at Edgehill’s, which was not true; that thereupon she and Black began a cohabitation, which lasted about three years'; that, acquiring experience,-she became sensible of the impropriety of living in an unmarried state with Black, and thereupon left him, and returned to her mother’s, where *she resided*several years, during which time she frequently heard that Black, who had gone to Georgia, was dead; that she had not seen him lor several years before her marriage to the testator, but, on the contrary, had heard and believed he was dead; she knew that the testator had also heardbf his absence and death in Georgia.

The five children of Rachel answered separately, and, touching their mother’s alleged marriage with Black, referred to and adopted her answer, as information which they had heard and believed.

On April 29th, 1831, after her answer was put in, and before the trial, Rachel Fryer died, which fact was suggested on the 'bill.

The cause was heard,. June 20th and 22d, on the pleadings and proofs.

In the course of reading the pleadings, the plaintiffs objected against the reading of Rachel Fryer’s answer: that it could not be used for *her,*she being dead and no longer a party; and that the other defendants were not entitled to use it as evidence for *them.*

The GhaNcellor. The other defendants refer to her answer, and adopt it. It is, therefore, their answer, and they must read it as such. It is as much their answer as if they had exhibited it — in which case there could have been no doubt on the matter.

*89EVIDENCE FOR PLAINTIFFS.

*William Neil*testified, that, some time during the revolution, William Black brought Rachel Nichols, quite a young girl, from Spartanburgh, to Josiah East’s, in Newberry. They made up a match. East was to provide an entertainment for the occasion. A small party of young people proceeded with the young couple from East’s to the house of one. Edgehill, a justice, who lived at Hayes-Station, to get him to perform the. marriage ceremony. Witness was one of the party. Edgehill was from home, and they were disappointed. But the company, being all young and inconsiderate, persuaded Black and Rachel, that, rather than interrupt the festivities of the day, it would be better to deceive Rachel’s mother, (who was there,) by stating that they had got married at Edgehill’s ; that they could take the first occasion to remedy the matter, by getting actually married. They agreed to this. Their young friends pledged themselves to keep their secret. On their return to East’s, the statement agreed on was made, the usual festivities took place, and at the proper hour the young pair were put to bed.

It was, ever after, reported that Black and Rachel went back to Edgehill’s, *next*morning, and were married. They lived and passed as man and wife. She was the same woman who afterwards became the wife of Richard Fryer.

*William Glenn*knew Black and Rachel when they lived, from four to seven years, as man and wife,' on the lands of one Hannah. It had been doubted, by some of the neighbours, whether they were married; but they, themselves, said they were, and it was generally believed. At length they parted, and some years afterwards, (perhaps three or four years,) she married Richard Fryer.

Black remained in the neighbourhood seven or eight years after her marriage to Fryer, but had no fixed abode. He then went to Georgia. This was, perhaps, forty years ago. Witness was quite young — a small boy.

*90After they parted, witness heard Rachel say she would have a divorce from Black, but that Black refused it; that she had gone to one Montgomery, (a justice,) • for a divorce, but had failed.

She had no children by Black. When witness first saw her living with Black, at Hannah’s, she appeared to be about fourteen or fifteen.

Several of the neighbours talked about their' having gone to the justice, and failing to get married. Several said that they did not know howabout.it; and doubted whether they were man and wife.

*Aaron Starns*stayed at Black’s one night, when he lived on Hannah’s land. Rachel was there. She was young, and exceedingly beautiful. They were all in high glee, and witness, after paying some compliments to Rachel, (whom he had not seen before,) on her beauty, asked them if she was Black’s wife. They said yes. They went to bed together. ■

Afterwards heard they had parted.

After Fryer’s marriage to her, Black returned from Georgia, and threatened to sue Fryer for his wife. Witness has not seen Black for thirty years. All that time Fryer and Rachel lived reputably, as man and wife, and reared a respectable family.

, *Robert ‘Hannah.*— Black called Rachel his wife, and she said so. All the old settlers said, and believed they were married. They lived at Hannah’s place six or seven years, and then were apart. Witness knew Black afterwards. He was frostbitten when drunk, and was a year or so under a physician fox-cure. tie was, for a few years afterwards, from place to place, making garden fences, and such work. This was about 1800. About 1801, he thinks, he heard of his living at East’s ; and that he saw him about thirty years ago, at Adair’s. Fryer and Rachel have been living as man and wife ever since.

About twenty or twenty-five years ago witness heard that Black had died some years before.

The only doubt he ever, until lately, heard expressed of Black’s marriage to Rachel, was once at a gathering at one *91Larme’s, while they lived together. Old Mrs. Glenn (William Glenn’s mother) told Rachel, that, *if she was not married, she wanted no such people about her.*Rachel cried, and said, “wé are married.” In the same conversation, one Holland put the question to Black, and he, also, replied that he and .Rachel were married.

*James Hannah.*— First knew Black and Rachel when they resided at his father’s plantation. They were talked of as man and wife. Never heard it doubted till lately. Can’t tell how long they lived at that place. Thewraarted there, and, four or five years afterwards, it was said Fryer married her. After-wards Black was said to have gone to Georgia. He used to threaten Fryer's life, for taking his wife.

*Mrs. Burwell Bobo.*— Has heard Mrs. Fryer (Rachel) express her regret that her children by Fryer would not be heirs. Understood her to allude to an impediment arising from her previous connexion with Black. She often expressed this regret; but witness does not recollect her words.

*Moses Casey*testified, that Richard Fryer and Rachel were married in the end of 1794, or beginning of 1795. The oldest child died. Thinks Nelly was the next child, then Jonathan, whose age. he thinks, is about twenty-eight. Does not know the ages' of the others, except that of David, who is the youngest, and came of age in 1830.

About twenty-five or thirty years ago, Mr. Fryer told witness that Black was coming to claim Rachel as his wife,- and asked his advice. Witness, who was a constable, looked into the law, and gave an opinion.' Fryer said Black had better stay away. Next morning Mrs. Fryer spoke of it also.

For the last year or two, Mrs. Fryer’s understanding was, with her body, occasionally enfeebled by disease. How it was when she put in her answer, witness does not know.

EVIDENCE FOB DEFENDANTS.

*James Tinsley.*— About the close of the revolutionary war, witness served with Black, in an expedition against the Indians. *92In crossing the Savannah, Black was nearly drowned. After he got out, one of the company asked, what his wife (for it had been reported he was married to Rachel) would have done, if he had been drowned *?*He replied, he had no wife.

*Wm. Wilder.-*— Rachel was a baptist, and very pious, for many years. When she was about joining the church, twenty-five years ago, a member was appointed to inquire about her having a former husband, and on his report she was received.

Witness was also a member. She and Fryer were excellent characters, and raised a respectable family.

• Witness conversed whir her on the business, when she filed her answer. Her mind was as good as ever; and witness would unhesitatingly believe her.

*Randolph Casey.*— Mrs. Fryer’s mind was quite sound when she filed her answer; and witness has no doubt of her veracity.

The cause was extensively argued by *Henry*and Bobo, for the plaintiffs, and by *Tho.*Williams, *jun.,*for the defendants.

Johnston, -Ch. The main question is, whether Mrs. Fryer was ever married to Black. If she was, it is clear that Black was alive at her marriage to Fryer.

Marriage, with us, so far as the law is concerned, has ever been regarded as a mere civil contract. Our law prescribes no ceremony. It requires nothing but the agreement of the parties, with an intention that *that agreement*shall, *per se,*constitute the marriage. They may express the agreement by parol, they may signify it by whatever ceremony their whim, or their taste, or their religious belief, may select: it is the agreement itself, and not the form in which it is couched, which constitutes the contract. The words used, or the ceremony performed, are mere evidence of a present intention and agreement of the parties.

Marriage is always an executed, never an executory contract. It is not what the parties intend to do hereafter, but what they intentionally do now, that constitutes the tie, and renders it *93indissoluble. Therefore, an engagement that the parties will marry, is not marriage: but an engagement, whereby they do take each other, *in*prcssenti, for man and wife, is marriage.

The contract of marriage, when completély entered into, is a fact. Like every other fact, it is susceptible of an infinite variety of proof. It may be proved by those who witnessed it when it took place. It may be proved by the subsequent declarations or acknowledgements of the parties. It may be evidenced by their conduct, and the attitude they maintain towards each other and the world. But there is a clear distinction between the fact, .itself, of marriage, and the evidence of that fact.

As a witness who swears that he saw the marriage take place, may, or may not, be believed, so the acknowledgements of parties, that they have been married, like acknowledgements of any other past transactions or facts, may be tryie or false, and should be believed or disbelieved accordingly. . The acknowledgement of a marriage does not constitute the marriage, any more than the acknowledgement of any other fact constitutes that fact. It is evidence only. Nor is it conclusive evidence, even on the parties themselves. It puts the burden on them of shewing the contrary; but if they can shew the contrary — if they can shew that what they have acknowledged did not, or could not exist, they are at liberty to do so. They have not this privilege where the false declaration has deceived, and the retraction would defraud some third person: as, where a man, by holding out a woman as his wife, has ensnared a creditor. But where the question is confined to the parties, as between themselves, or concerns third persons who have not been defrauded, there is full scope for every kind of proof’ which tends to disclose the real truth of the matter.

*Hilton's*case (a) has been relied on to shew, that acknow-ledgements of marriage are conclusive on the parties, even in criminal cases. This was a case of great importance, and decided upon an enlightened view of the law. The prisoner was indicted for bigamy, and the Circuit Court admitted his acknow-*94ledgements of marriage; and upon this, with evidence of cohabitation, habit and repute, the jury found him guilty. The question for the Supreme Court was not, whether the acknow-ledgements were conclusive, but whether they were admissible. It was held, that they were admissible ; but so far from considering them conclusive, the Court declared, that “ the circumstances opposed to them were properly submitted to the jury.”

What is meant by *“*conclusive ?” I understand it to refer to *estop-pels,*a doctrine intended to crush frauds, to promote social repose, or to put an end to litigation, — a doctrine not so much of justice in the particular case, as of general policy. As where one makes a deed, he shall not aver, and, of course, shall not make proof, against it. It would be fraud if he did. Where one suffers a judgment to pass, he shall not collaterally re-examine the matter adjudicated. He has had his opportunity; and there would be no security of rights, no rest to society, no end to litigation, if he were allowed another. But where the question is as to a particular fact, — whether it ever or never existed, — where there is no one to be defrauded, — where there is no previous adjudication to be overturned, — no vested right to be divested, — I cannot understand what is meant by “ conclusive.” I know nothing in the nature of evidence that is so conclusive, as to shut out or disparage other evidence. To say otherwise would amount to fostering falsehood under the pre-tence of searching for truth, — which is the end of all rules of evidence.

An acknowledgement of marriage is no more marriage, or conclusive evidence of it, than an acknowledgement of murder is murder, or conclusive evidence of it. Now, suppose, that one, desirous, (for ease of conscience,) of committing suicide under the sanction of judicial process, should acknowledge to the malicious slaying and concealment of some person who had suddenly disappeared. No doubt this would fully justify his conviction and execution. But suppose, that before the evidence was closed, the supposed deceased'should appear in open Court to dispel the imposture, would it not be the death of all justice *95to say, that any rule exists which would bind the tribunal to spurn away the truth, and cleave to the falsehood ?

It'is too much the practice to convert mere matters of evidence into rules of law; and, under the specious names of badges and presumptions, compel courts and juries to draw inferences, according to artificial rules, against their real belief. But there are some reflections so natur.al and just, that although they do not amount to rules, they must be applied to evidence by every sound mind; some of which, as applicable to the evidence here, I will barely mention.

In the absence of proof of actual marriage, the mind will rely on acknowledgements, more or less, according to the circumstances under which they were made. If they have been wrung from parties under a sense of shame, or extorted by a fear of ill-treatment, or odium, a sound judgment will depend less upon them than if they were made spontaneously, or arose naturally.

I need hardly observe, that cohabitation and repute, which are also only evidence of marriage, will be more or less convincing, according as. the cohabitation has been more or less interrupted, or the repute more or less general; and will not influence the judgment at all, if explained away or rebutted by clear proof that the parties were never married.

Having thus laid down the law of marriage, distinguished between the contract and the evidence of the contract, and suggested what weight should be allowed to that evidence, let us now examine the facts of the case.

Taking the testimony of the witnesses together, I think it is clear that no marriage had taken place when the parties entered into their intercourse, nor for some time afterwards.

No contract of marriage took place at Edgehill’s. The very fact, that the parties agreed there to marry afterwards, repels the idea, that there was in the mind of either, any apprehension of a present contract. Their agreement was to misrepresent the facts; enter into an illicit intercourse for the present; and postpone their marriage to a more convenient occasion.

Their declaration upon their return to East’s, that they had *96been married, was untrue. It was untrue in their own judgments, and according to their own apprehension of what had taken place : and surely it would be absurd to hold that parties had contracted who had never united in any present intention to do so.

That declaration was not intended to constitute a contract, *per se.*It was intended to refer to what had taken place at Edgehill’s; which, coupled with an intention to marry at a future time, clearly took from it every thing like a present contracting intention.

Suppose, after that declaration was made, and before the parties came together, Rachel, seeing her conduct and her duty in a better light, had refused to proceed further, and had disclosed to her friends the true state of the case: can there be any doubt, that, notwithstanding her declaration, she would have been regarded, in every forum, as still a single woman? How, then, can it be contended that the declaration constituted a contract of marriage?

When the parties, therefore, came together, they were not married. The intercourse began illicitly. There is no way of avoiding this conclusion, unless, as was contended, the future intention to marry was ripened, by the copula, into marriage. But I apprehend that such a doctrine, applied to the facts before us, would lead us from the truth of the case.

An actual agreement of marriage, fully perfected as an agreement, constitutes the parties man and wife, although never followed with *copula.*
      *(b.)*
      **On the other hand, copula, without such agreement, is clearly illicit. The only difficulty is where there are mutual promises *in*futuro, followed by *copula.*Does the copula, *ipso facto,*perfect the previous agreement, so as to constitute marriage ? This, in my opinion, depends entirely upon the intention and apprehension of the parties. If an agreement be made by words *in*futuro, that the parties will marry; and that the act of their coming together, shall, *per se,*
      *97signify that they have thereby concluded .their contract: there the *co-pula*is a performance of the contract, and by perfecting reduces it from an executory into an executed agreement. So where there was no express stipulation that the *copula*should perfect the previous executory agreement, yet if it be evident, that the parties understood, and intended that act to perfect it, I suppose it must have that effect. But it is of the essence of every contract that the parties shall have a present contracting intention, at the time of perfecting their contract: they must understand that they are making a contract; otherwise no contract is made. 1 do not say, that they must have a full understanding of the legal consequences of the contract they are forming. The contract once made, the consequences are matter of legal obligation, and they must abide therm But where such is the penalty, it is but reasonable that parties shall not be held to have made a contract, unless where they had knowledge that they were contracting, and intended to contract.

The proposition, contended for, that *copula*following promises to marry, is marriage, without regard to the present intention of the parties, seems to me unfounded in principle. If it were true, there could be no such thing as an action for seduction. The doctrine of that action is, that where a man promises a woman, that if she will be his prostitute now, he will make her his wife hereafter, — to which she • assents, and so there are mutual promises, and a mutual agreement, — this does not constitute marriage. The doctrine contended for, here, is that it is marriage — that the woman becomes a wife, and is so merged in her husband as to be incapable of suing him; nay, that the act was not wrongful, and, of course, could lay no ground for damages.

It seems to me, that where, as in the present case, the parties do not understand the *copula*to be lawful, — do not intend that it shall, *per se,*constitute the marriage relation, — but, on the contrary, stipulate that the marriage shall, instead of preceding or accompanying the act, follow it, it would never do to pronounce that *copula*to be any thing else than unlawful.

*98Where principles are plain, as I think this which I insist on is, it is unnecessary to look into the general policy; but if it were, I think it would be easy to shew, that the doctrine contended for by counsel, might by artful women, such as the most abandoned often are, be turned to the worst of purposes; since, if by extorting promises of marriage from the unwary youth, whom they too often inveigle into their snares, they can bind them to themselves, and sink them to their own infamous condition, nothing can be imagined better calculated to blast the hopes and happiness of individuals and families, or to corrupt the morals of society.

The intercourse of these parties was, therefore, illicit in its origin.

I take it to be an indubitable principle, that where the character of the intercourse, in its beginning, is ascertained, the presumption is, that the intercourse is carried on in the same character, unless the contrary is made to appear. Where parties are shewn to have been married, and live together, it shall not be presumed, that at any time their commerce became unlawful, unless (where that is allowed,) it be proved that they were legally divorced. On the other hand, where, as in this case, it is established, that the parties came together unlawfully, their continuing together, must be considered unlawful, until they shew á subsequent marriage.

Neil says, these parties agreed to return to Edgehill’s the next day, and get married. Who proves that they did so *1*

Neil says, it was reported, they went back next morning and got married. I doubt the competency of this evidence. Report and repute are very different things. Repute is report believed. Even if the report spoken of was believed, so as to become repute, it is still objectionable : it refers to a particular fact, by circumstances of time and place ; and I doubt, whether a particular fact, and its circumstances, can be proved by reputation. It is said that a report that parties were married, is evidence of the marriage; which is a particular fact. I do not remember any instance where repute, pointing particularly to the fact of *99marriage, so as to establish that fact directly, has been received. The repute which has been allowed, so far as I know, has been a general repute of the *status*of the parties — that they were considered man and wife: It must be allowed, that the reputation of *status*is admitted for the purpose of inferring the fact of marriage from it. But then the ground of receiving such testimony must be remembered. It is received from necessity, where there is no trace of the marriage itself. But where the report points out the fact itself distinctly, by time and place, it guides you to higher and more certain testimony, which ought to be produced. To allow the reputation of such circumstances to stand for proof of them, would establish a principle legitimately leading, in my judgment, to the substitution of reputation, for actual proof of any particular fact. Upon the same principle, how could you refuse evidence, that it was generally reported and believed, that a debtor paid off a particular demand, on a particular day ?

But, waiving this objection, the report referred to is but evidence ; and, in my opinion, is fully rebutted by Black’s unbi-assed declaration spoken of by Tinsley; by the divided opinion which afterwards prevailed as to the legitimacy of the con-nexion ; by the fact, that when the parties were afterwards challenged for their intercourse, they did not venture to refer to this, or any other particular time, or place, as that on which they were married, nor to Edgehill, or any otre else, as witnesses of their marriage; by their subsequent separation; finally, it is rebutted by the fact, that when Black was most anxious to punish Fryer for *crim. con.,*he neither specifically referred to this alleged marriage, nor used the evidence which it would have afforded.

If the parties had separated within a short time, neither what had taken place at East’s, nor this report would have convinced any sound mind, that they were man and wife.

So far, the intercourse was illicit. We have their subsequent declarations, on two occasions; while they lived at Hannah’s, once to Mrs. Glenn and Holland — for the witnesses refer to the *100same lime — and once to Starns. What do these prove ? When Mrs. Glenn and Holland attacked them, did they say we went back to Edgehill’s and got married ? Did they refer to Edgehill, who lived but a few miles off, or to any one who was present at their marriage ? Did ‘they state any other occasion on which they were married, or mention any other witness ? Surely when they were informed that their marriage was doubted, and knew the grounds of that doubt, this would have been a natural course. But they contented themselves with a repetition of their false declarations at East’s. This they evidently did to escape the odium of their situation. The declarations to Starns were not seriously made, but were intended to obviate his uncouth gallantries.

These declarations are subject to the observation made on the declaration at East’s, that they were not intended to constitute marriage, *per se,*but simply to refer to previous occurrences, and as we have seen that such occurrences never took place, these declarations were untrue.

The only other ground upon which a marriage between Black and Rachel Nichols can be put, is cohabitation and repute.

If parties be found living together as man and wife, without any account or knowledge of the origin of their commerce, the presumption is in favor of their having been married. This principle, which prevails in England and in Scotland, is more essential here, where thousands upon thousands of our population consist of European emigrant families, and where transmigration in families, from State to State, are. of daily occurrence. To require evidence of actual marriage, in all cases, would unsettle all the domestic relations, and render the distributary rights of property uncertain. But when we know the origin of the connexion to have been unlawful, the continuance of *that*connexion can never become lawful.

In *Cunningham*vs. Cunningham, (2 Dow, 501,) a Scotch case, tried in the House of Lords in 1814, the intercourse began illicitly, and consisted of a protracted cohabitation, with some repute. Lord Eldon said, “ This case must be looked at as one *101originating in an illicit connexion, said to have become lawful at some period, no one knew when. And if the marriage depended on the evidence as to cohabitation with habit and repute, among the circles in which they lived, he desired to know at what *'precise period*was the nature of the connexion changed, and when did they thereafter begin to live together as man and wife?” And, again he asks, “at what time did this become a lawful connexion between man and wife ?”

-Lord Redesdale, in the same case, after laying down the doctrine that “ cohabitation, with habit and repute, was presumptive evidence of marriage,” and that “ the presumption might be rebutted by contrary evidence,” remarks, “ the cohabitation, by itself, was nothing at all, here, as it was known to have been, in its origin, illicit.”

The Scotch law, with regard to what constitutes marriage, is precisely like our own. The effect of the marriage tie is different. In Scotland, marriage legitimates all the *ante nati*children of the parties, except such as were begotten or born while either of the putative parents were united to some other person in wedlock. In this state, the *ante nati*children are not legitimated by the marriage.

In Scotland, the difficulty in permitting an illicit connexion to ripen into marriage, by cohabitation and repute, must be infinitely less than in this State, since, in that kingdom, the precise period at which the connexion was changed, cannot have the effect of drawing a distinction between the different children of the parties. All become legitimate, without regard to the time when the repute became so intense as to constitute the parties man and wife. It is otherwise with us.

Yet Lord Eldon says, in *Cunningham*vs. *Cunningham,*“ The difficulty was this — which, as far as he had heard or read, neither learned nor unlearned had grappled with — -was it during the residence in the Cannongate, or Cowgate, or at Bal-bougie, or at what time, did this become a lawful connexion between man and wife ?”

Now, if that difficulty was so great under the Scotch law, *102must it not be insuperable here, where the time of the marriage draws a line between children of the same connexion? Suppose Rachel Nichols had had a child by Black, before they settled at Hannah’s, another upon settling there, and three while residing at that place, which of the five would have been legitimate, and which bastards ? Would the first have been a lawful child ? That was born before the repute. The second? There is no proof of repute between the first and second births. If you legitimate this child, you must do the same by the first. If you cannot legitimate either, what will you do with the three others ? At what time did the repute become so concentrated, as to make these parties husband and wife ? When, on what day, at what instant of time, was the nature of their connexion changed ? Was it the day before, or the day after, the third child was bom? or the fourth? or the fifth? If the day before either of these children was born, that, and all the younger children, were lawful children. If the day after, that child was a bastard, and you have to go over the same difficult inquiry as to the next.

In the case of an intercourse originally illicit, when you attempt to carry back the presumption arising from cohabitation and repute, you must, at some point of time, come in conflict with the illicit connexion — and the difficulty is in fixing where the one ends and the other begins. The difficulty is very great, in any view. But it is insurmountable, when it is recollected that the intensity of the repute diminishes, just in proportion as you return towards the origin of the connexion, where it is manifestly unlawful; whereas, what is demanded is, that, at some period after the beginning of the connexion, the mind should suddenly encounter presumptive evidence, of such force, as to convince it that, precisely at that period, a marriage took place.

But, supposing that cohabitation and repute can be applied to the case of an originally illicit connexion, so as to raise a presumption of marriage, the repute, in this case, will not raise it. A divided opinion will not raise the presumption, even in *103cases where the origin of the connexion is not traced: although, in that case, the mind would incline to raise the presumption on any reasonable degree of evidence.

Is it to be believed that, in the same neighbourhood in which the parties went together unlawfully, within the knowledge of a large party of their young associates, doubts would not get afloat, even if the pledge of secrecy was kept better than such things usually are ? There is evidence that doubts arose shortly after the assemblage at East’s, and followed the parties. Glenn says, their marriage was doubted shortly after that assemblage. Several of the neighbours spoke doubtingly on the subject, and even descended to the particular of their having failed to get married at Edgehill’s. Mrs. Glenn and Holland attacked thjem in a public company. Can it be believed that, under such circumstances, there was such uniform, and uninterrupted, and undoubting belief, as to warrant the presumption of marriage ? Both Glenn and Robert Hannah show that public opinion was divided ;, and although they seem to think it was not generally divided, the facts stated by them show them was much division. Indeed, I observed in their examination, (what I have often observed,) that, having questions put to them, to which they gave categorical answers, a meaning was' given to the words “ general opinion,” different to their import, or the understanding of the witnesses. Some thought the parties were married; others that they were not. The -majority thought they were married. This was the amount of their testimony, and I cannot, on my understanding of the witnesses, decree that these parties were reputed to be man and wife.

In *Cunningham*vs. Cunningham, Lord Redesdale said, that where the testimony was contradictory, “ he had always understood that they ought to look at what were the collateral circumstances, in which there could be no error, and which were not liable to that impression, one way or the other, to which witnesses were often subject.” . Let us look at the collateral circumstances here :

First. What weight should be given to the declarations to *104Mrs. Glenn and Holland, and to Starns, in aid of what repute existed in the community. We see that these persons could reconcile themselves to an illicit connexion: for they entered into it with the knowledge and privity of others. We see that they were capable of misstatements, with a view to deceive: for they did this on their return to East’s. When, therefore, they were afterwards directly charged, in one case, under circumstances which might impress them with a fear of being cast out of society, and perhaps ejected from their home, the temptation to repeat their former false representation was very urgent. And, as to Starns, it appears he had put his question with such directness, as to leave them no alternative but to admit, face to face, that they were living unlawfully together, or to assert, as I think falsely, that they were married. But what I look at is, that in the conversation with Mrs Glenn and Holland, when so much was at stake, they did not venture any particulars, susceptible of confirmation or refutation, but contented themselves with a general assertion. Now, is it to be believed, that when they had made so many persons privy to the illegal connexion began by them, they would afterwards choose to contract a marriage in so private a manner as not to be able to name a single witness to prove it ?

Another collateral circumstance. When these persons, while living at Hannah’s, had once been subjected to suspicions, the very fact that they had been so called in question, (especially as they then asserted a previous marriage,) renders it improbable that they would confirm the suspicions, and convict themselves of an untruth, by afterwards getting married, while they lived in that neighborhood.

Another collateral circumstance is their separation. They came together unlawfully ; and we find them apart again, and no account given of the separation. Did they part as man and wife? On what account? Was there any ill-treatment to occasion the separation ? No account is given. The reasonable inference is, that, as there was no tie to bind them together, they voluntarily abandoned each other, and gave up their sinful *105connexion. She was betrayed into it at very tender years, and, from her after conduct, it is presumable that when her mind became more matured, and imbued with religion, (which she afterwards happily cultivated, it appears, to her dying day,) her degraded condition became insupportable, and by a strong association (such is a law of the heart) she lost her guilty, attachment to her partner in crime. They parted, and continued apart for years. She was taken and accepted as a.single woman, and in that condition married by a respectable man. These are strong facts against- a general repute. They are strong against an actual marriage to Black.

Another collateral fact I have two or three times touched on before. When Black claimed her from Fryer, and was so excited that he threatened bloodshed, he shrunk from putting his claim to the test; he mentioned no particulars ; he named no witnesses. This happened when the circumstances of his marriage, if one existed, were comparatively recent, and susceptible of proof. And if he, at that time, shrunk' from the investigation, is it unreasonable to infer that he had no proof to make, or that the counter proof was too strong for him? And if he, at that day, could not sustain his marriage by proof, how do the plaintiffs expect to establish it now ?

On the whole, I feel satisfied that Mrs. Fryer never was the wife of Black and must dismiss the bill.

If I had come to the conclusion that Black was married to Rachel Nichols, and that he was alive (as he undoubtedly was) at her marriage to Mr. Fryer, it might still have led to the same result. For, as Black’s marriage could only have been established by cohabitation and repute, the same doctrine would, as soon as Black died, (which was, I think, about 1801,) have applied to Fryer, and constituted him mnd Rachel man and wife, from that time forward. The effect of that- would have been to take the legacies to Mrs. Fryer out of the Act of 1795. Tt would, also, have taken out of the Act so much of the remainder as was limited to her children, who were born after the time I have referred to. If the remainders, limited to her *106other (and jn that case natural) children, should not, on valuation, be found to exceed the one-fourth of the clear value of the whole estate, consisting of the mother’s life estate, and the other remainders, the legacies were good. And according to the case of *Tinney*vs. Tinney, decided by the old Court of Appeals in Equity, at Columbia, in 1822, the valuation must be made at the time the legacies were given, and not after *the*remainders actually fell in. The probability is, that under this rule, the plaintiffs must still have failed.

As it is, I decree that the bill be dismissed.

The plaintiffs appealed, and moved to reverse the decree:

1. Because the answer of Mrs. Fryer was incompetent evidence for the other defendants. .

2. Because the declaration of Black, sworn to by Tinsley, was not evidence.

3. Because the evidence did, by the laws of this State, establish a marriage between Black and Rachel Nichols.

4. Because the Chancellor should have decided in favor of the plaintiffs, for an account and partition of three-fourths of the testator’s estate, mentioned in the will.

5. Because the bill should have been sustained for partition of the remainders willed to plaintiffs and defendants, upon the death of Mrs. Fryer.

The appeal was argued, January 17th, 1832, by *Bobo*and *Henry*for plaintiffs, and by *T. Williams*for defendants.

3 Rich. 434.

*) McAdam*vs. *Walker,*1 *Dow,*148.

Martin, J.,

sitting for Harper, J.,

delivered the opinion of the Court:

That whatever a defendant refers to in his answer, as a par* of it; was to be received as evidence, (so far as the answer itself could be so considered,) I had supposed too well established to admit of a doubt. Yet that question is made in the first ground of appeal, and has been insisted on in the argument.

The plaintiffs charge the marriage of the defendants’ mother to one Black, many years before their birth, and call on them *107to answer as to that fact. In answering, the defendants say they cannot be supposed to know any thing in relation to this subject, except what they have heard; .and, having seen and read their mother's answer, they refer to that and adopt it as their own, “as containing information they have heard and beliese.” ,. Their-mother’s answer, then, was a part of their own; for they adopt it, and ask leave to refer to it, as their own. if they had not been állowed to do so, it would seem that a defendant could never give in answer an exhibit, unless it was incorporated, *in Jicec*verba, in his answer. It.will not be pretended, I presume, if the defendants had set. out Mrs. Fryer’s answer in their own, and averred their belief of its truth, and adopted it as their own, that it would have been irrelevant, impertinent or objectionable. 'There is no difference between that course and the one .they adopted.

The rule contended for,, that the answer of one defendant is not evidence for another defendant, is obviously inapplicable to the case. Mrs. Fryer’s answer was not, in fact, read .as her answer, but as part of the answer of the other defendants.

I cannot suppose it necessary to investigate the competency of Black’s declarations. The plaintiffs gave his declarations in evidence repeatedly; and it was, surely, competent for the defendants to disprove his assertions by his own contradictions.

The third ground maintains, the marriage of Rachel Nichols to Black, and that he was alive at her marriage to Fryer. The Chancellor who heard, and had the most favorable opportunity to estimate the testimony, thought it did not establish the marriage contended for, and we concur with him. I will add, that it would seem to me, his analysis of the testimony must lead any dispassionate mind to the same conclusion.

For my own part, I should, under the very extraordinary facts of the case, have been satisfied with less than the defendants have proved. For more than thirty years, Fryer and their mother have lived together as man and wife, under what they supposed, and under what I now believe, to have been a lawful marriage. During all this time, it is admitted, they were exem*108plary and respected members of society. They reared a family, who are also respectable, and whose legitimacy was not questioned until about the time of the filing of this bill, although the youngest is the mother of a family. Who, then, would bastardize this whole family, unless forced, by indubitable testimony, to do so ? No one, I am sure, but the plaintiffs, who are so far influenced by pecuniary considerations as to forget what is due to the memory of their father, and rendered willing to bring odium upon those who are allied to them in blood. And who would not, in this case, seize on every fair and rational doubt, to shield all concerned from the imputations which the plaintiffs are endeavoring to fix on them indelibly ? All, I am sure, who appreciate domestic tranquility.

But the Chancellor’s decree, as I conceive, does not rest, for support, on these views. The evidence, on a careful analysis, not only does not support the case made by the bill, but, in point of fact, establishes the legitimacy of the defendants.

If it were not so, a question of much difficulty might arise, if it be taken as proved (and I think it clearly established) that the testator supposed his marriage to Rachel lawful and valid. Did the Legislature, by the Act of 1795, intend to embrace such a case? I am glad that it is not necessary to express an opinion on a question of such difficulty.

The view I have taken of the third and principal ground relied on, renders it unnecessary to say any thing on the fourth.

The last ground supposes a case not made by the pleadings. It is true that, by the testator’s will, the residuum of his estate is divisible between the plaintiffs and defendants, after the death of the widow, and it is true she has died since the filing of the bill. But the bill did not seek distribution of that residuum, nor were the plaintiffs entitled to it when the bill was filed. They have not filed a supplemental bill. They had other objects in view, and, for aught that appears, this matter is suggested for the first time in the appeal. If a proper case was not made, that is not the fault of the Court.

It is doubtful whether a Chancellor would have allowed the *109plaintiffs, in such a case, to have availed themselves of the accidental death of Mrs. Fryer, to have amended their claim. I incline to the opinion that such permission would have been granted, if granted at all, only upon payment of costs. But I do not think the plaintiffs have any claim upon the discretion of this Court; as they made no (application oh the Circuit, it must be -refused here. . _

The decree is affirmed, and the appeal dismissed.

JohNson and O’Neall, JJ., concurred.

*Appeal dismissed.*

Note.— In *Stringfellow*vs. *Scott,*at Barnwell, February, 1833, the following interesting circuit opinion, on the law of marriage, was delivered, by

Harper, Ch. The complainants charge that they are the lawful children of Richard .Stringfellow, deceased, by his first wife ; that the defendant was living in adultery with him for some time previously, and at the time of his death; and that, by his will,, he bequeathed to her his whole estate, for life, and after her death, to his children by her, in violation of the Act of the Legislature, forbidding any person, having a lawful wife or legitimate children, from giving more than one-fourth of his estate to a mistress or illegitimate,children. The answer of the defendant admits that she did cohabit with the deceasod, during the life time of his second wife; but states that,'after the second wife’s death, she was *regularly married*to him. There was no direct proof of the death of the second wife. It was proved that she was in the neighbpurhood of her deceased husband and defendant some fourteen or fifteen years ago 3 that she went to. Tennessee, and was in a state of derangement, and it does not appear that she has been heard of for the last ten or eleven years. One witness stated that- he heard of her death, eight or nine years ago. Under these circumstances, the law infers the death of the second-wife, during the period she has not been heard of. There was no proof of the defendant’s having been married to Stringfellow, except that, during the period mentioned, they *cohabited,*and *recognized and treated each other as’man and wife.*In his will, also, he speaks of her *as his wife.*These circumstances, it was argued, are sufficient to raise tho presumption of a marriage between them. - *Under the ¡English*law, as it exists at present, in all cases except prosecutions for bigamy and actions for criminal conversation, marriage may be proved *by circumstances such as these.*I should consider these rebutted, however, by the admitted faet'of their cohabitatibn *haring been adulterous*initscommencement; and this would throw *on defendant the burden of proving a formal*
      ***
      *marriage.*I agree, however, with the defendant’s counsel, that, under our laws, *marriage is regarded as merely a civil*contract, requiring *no particular formality,*which may be made by a *private agreement between the*parties, and which is capable of being proved *by cwcum-*stances, *as any other contract may be proved.*The English statute, 26 Geo. 2, c. 33, which is that by which restrictions in relation to the forms of marriage have been im*110posed in that country, has never been adopted in this State. Blackstone (1 Com., 433-4,) says, “ Our law considers marriage in no other flight than as a civil contract. And, taking it in this civil- light, the law treats it as it does all other contracts : allowing it to b'e good and valid, in all cases where the parties, at the time of making it, were, in the first place, willing to contract, secondly, able to contract, and lastly, actually did contract, in the proper forms and solemnities required by law;” and (at p. 439) “ lastly, the parties must not only bo willing and able to contract, but must actually contract themselves, in due form of law, to mako it a good civil marriage. Any contract made *per verba cle*prcesenti, or in words of the present tense, or, in case of cohabitation, *per verba defuturo}*also between persons ablo to contract, was, before the late act, deemed a valid marriage, for many purposes, and the partios might bo compelled, in the spiritual courts, to celebrate it in *facie ecclesiceP*So, in *Bunting's*case, Moore, 170; 4 Co., 29, Agnes Addingshall was contracted to Bunting, *(per verba de prcesenti}*as is stated in the report in Coke, though.this does not appear from the report in Moore.) She afterwards married Twine. Being sued in the spiritual court by Bunting, the marriage with Twine was declared void, and the sentence ■was, that she should marry and cohabit with Bunting, which she did. They had a son, and the question in the Civil Court was of his legitimacy. It was argued, that having been married to Twine in *facie*ecclcsice, this was valid until a regular divorce in a proceeding to which Twine should have been a party. But it was held that the marriage with Twine was void, and the issue with Bunting legitimate. Moore says, the first cause was for this, that Agnes was first contracted to Bunting: in which case, she was his lawful wife in the civil law, for it is said, that if they have carnal copulation, after the contract, they shall not be punished for adultery or fornication, but only for contempt against an edict of the Church. It is also said, that if a legacy bo given to a woman when she shall become a wife, if she contracts herself, she may demand her legacy in the Spiritual Court before espousals celebrated: by which it appears, in construction of the civil law, the woman is *uxor*before the espousals, and so, if she be married, after the contract, and before the espousals, to a stranger, those espousals are void. It is said that before the time of Pope Innocent the Third; there was no solemnization of marriage in the Church; but the man came to the house which the woman inhabited, and led her home to his house, which was the only ceremony then used. So the law is laid down by Lord Holt, in *Collins vs.*Jesson, 6 Mod., 155, 2 Salk., 437, and *Widmore's*case, 2 Salk., 438, that a contract *per verba de*prcesenti, “ I marry you,” and “ I and you are man and wife,” constitutes an actual marriage, only that, if they cohabit before solemnization in *facie*ecclesice, they are punishable by ecclesiastical censure. If the contract bo *per verba de futuro^ "*I promise to marry you,” this will bo a marriage, if it be followed by actual consummation. The subject is fully considered by Sir William Scott, in the great case of *Dalrymple*vs. Dalrymple, (2 Hagg. Cons. R. 62; Car. L. J., 384,) respecting a Scotch marriage, in which he treats it not only as a question of Scotch law, but of the general law of all Europe, founded on the canon law. Before the Council of Trent, he says, “the consent of the two parties, expressed in words of present mutual acceptance, constituted an actual and legal marriage, technically known by the name, *sponsalia per verba de prcBseniiP*“ In the promise, or *sponsalia de*futuro, nothing was presumed to bo complete or consummate, either in substance or ceremony. Mutual consent might release the parties from their engagement, and one party, without the consent of the other, might contract a valid marriage, regularly or irregularly, with another person; but if the parties, who had exchanged the promise, had camal intercourse with each other, the effect of the carnal intercourse was to interpose a presumption of present consent, at the *111time of the intercourse, to convert the engagement into a regular marriage, and to produce all tho consequences attributable to that species of matrimonial connexion.35 He refers to Brower and to Swinburn, on Spousals, where the subject is fully treated.

It is said, 4 Bac. Abr. 536, Tit. .Marriage and Divorce, 0., to have been, by a constitution of Archbishop [Reynolds, directed, that marriage shall be solemnized reverently, and in the face of tho Church. But it is unnecessary to multiply authorities on this subject.

There is no doubt at all but that, by the law of England, independently of the Statute 26, Geo. 2, a contract *per verba de preesenti*(or *per verba de*futuro,) consummated by carnal intercourse, constitutes a valid marriage, indissoluble by the parties, and rendering the subsequent marriage of one of the parties absolutely void. The only difficulty arises from what is said in some of the authorities, that, “ in order to malee the marriage eom-ploto, so as to entitle the wife to dower, the children to inherit, etc., the same must bo celebrated in *facie ecclesice.”*4 Bac. Abr. 531. Tho author refers to Boll. Abr. 357, and to the ease before quoted from Moore. I have not tho means of referring to Bolle. In the case in Moore, it is said, that the children born after tho contract, and before the espousals, are legitimate, provided espousals succeed: for if espousals never succeed, tho issue is bastard. I do not find this, however, said by Coke, (a higher authority,) in reporting the same case, under the title of *Bunting*vs. Lepingwell, (4 Co., 29.) Co. Lit., 34, a, has .been sometimes referred to as an authority, that, to entitle the wife to dower, the marriage must be solemnized in *fade ecclesice.*But he only says, that “this dower *{ad ostium ecclesice,)*is ever after marriage solemnized,33 as, from the very nature and definition of it, it must have been. *C(Bt sciendum est, quod hccc constitutio fieri debet in facie*ecclesice, *et ad ostium ecclesice; non enim valet factain lecto mortali, vel in*camera, *vel altli ubi clandestina fuere conjugia.”*He loaves it rather to be inferred, that the solemnization was not necessary to the other species of dower treated of. In Yin. Abr. Tit. Marriage, it is said, “if E. be divorced from her Baron, *causapree contractus,*made with another *per verba de preesenti,*immediately by tho sentence given in the Court, tho marriage shall be consummated between the said 3?. and her first Baron, without any rites to be in *facie ecclesice.*Otherwise, in contracts *per verba de futuro.”*In *Haydon*vs. *Gould,*Salk. 119, where tho parties had been married by a layman, it was held, that tho husband was not entitled, in the Spiritual Court, to administration of the estate of his deceased wifo : “for ho, demanding a right due to him as husband, by the‘ecclesiastical law, must prove himself husband, according to that law, to entitle himself, in this caso: and though, porhaps, it should be so, that the wifo, who is the weaker sex, or the issue of the marriage, who are in no fault, might entitle themselves, by such marriage, to a temporal right, yet tho husband himself, who is in fault, shall hover entitle himself, by the mere reputation of marriage, without right.33 Indeed, however natural it may be to suppose that tho ecclesiastical tribunals would refuse their aid to one who had acted in contempt of an edict of the Church, yet if, as all the authorities agree, the civil contract of marriage was complete and perfect, without celebration in *facie ecclesice,*it seems something absurd and inconsistent, that one claiming a mere civil right, in a civil tribunal, should be repelled on the ground of his ecclesiastical irregularity. I am confirmed in this opinion, as all the other authorities, except those I have mentioned, which treat of the subject generally, seem to regard the marriage as complete, for all civil purposes, without celebration, and say nothing of any such disability of the wife, or issue of such marriage. So it is treated by Chief Baron Comyn, (a much higher authority than Bacon,) Tit. Baron and Eeme, B. By quoting from Salkeld, that where there is a marriage in fact, only the wifo or her children, who were not in fault, may be entitled to a temporal right, he seems to adopt that opinion.

*112Jews are excepted out of tlio English marriage Act; and in tho case of *Lindo*and Belisario, 1 Hagg. Cons. R. 231, in which, the validity of a Jewish marriage was elaborately investigated, the inquiry was, whether it was a marriage according to their usages-Not, of course, on the ground of any sanctity or authority in those usages, but to determine whether it was what they regarded as a valid contract. Tho English Court could only have regarded it as a civil contract.

But whatever the case may be in England, yet it is clear that, with us, the marriage is complete, for every purpose, by the contract, without celebration. We have no Church, recognized by law, in tho face of which the spousals might be celebrated. There is no Spiritual Court to compel parties to solemnize them, or to inflict spiritual censure if they refuse. We have retained the name of ordinary; but that, of necessity, must be regarded as a mere temporal Court, for the transaction of testamentary matters. Our present constitution has put an end to all connection between Church and State. To say the celebration *in facie ecclesiai*was necessary, would be to invalidate tho numerous marriages made by justices of the peace, and, indeed, most of those made by the clergy: for, by the laws of England, all the Protestant dissenting clergy are regarded as laymen, and we have not adopted tho English statutes, giving them validity on certain conditions. Indeed, it appears, that before our revolution, and while the Church of England was established in the Stato, it was common to celebrate marriages before justices of tho peace. By the Act of 1706, commonly called the Church Act, penalties are imposed on any justice of the peace who shall celebrate a marriage; but the marriage itself is not declared void. The custom wasno doubt derived from the practice, during the time of the English commonwealth, of colobrating marriages before justices of the peace. Regarding marriage merely as a civil contract, this was adopted as a convenient method of authenticating it. And though, afterwards, in the time of Charles the Second, it was thought advisable to pass an Act for confirming those *marriages;*yet I find no authority for supposing that they would have been regarded as invalid, without the statute.

The circumstances which tend to establish a matrimonial contract, in this case, I have already mentioned. For a long time, they recognized and treated each other as man and wife. In genoral, this would be sufficient of itself. It would amount to an admission of the matrimonial contract. But, for aught that appears, they treated each other in the same manner during the life time of Richard Stringfellow’s second wife, when no matrimonial connexion could exist between-thenu Then, in his will) ho calls her his wife, and gives to her his whole estate. This is very strong, and seems to amount to an acknowledgment that she was his wife. I do not think, however, that 1 am tho proper tribunal to decide on the effect of these circumstances. The case of *Fenton*vs. *Reed, 4*Johns. R. 52, was very much like the present. A woman married a second time, during the life of her first husband, which marriage was of course void. She continued to reside with the person to whom she was the second time married, for a long time after the death of her husband. They treated each other as husband and wife. The circumstances were left to the jury, to presume a contract of marriage after the death of the first husband, the Court holding a contract, *'per verba de presentí,*to be as valid a marriage as if made in *facie ecclesiai.*A jury I think the proper tribunal for the determination of the question, and to a jury I shall send it. There is an infinity of circumstances, familiar to the vicinage, but unknown to me, which would have a bearing on the determination. The parties might call each other husband and wife, as a sacrifice to decency, and treat each other as such, it being well known to themselves, and to every one else, that they did not consider each other as standing in that relation. I think, to warrant the jury in finding a marriage, they ought to be satisfied that there was actually an agreement or understanding between them, after the death of Stringfellow’s second wife, to stand together in the relation of husbandand wife.

*113As tho subject is an important one, and thero has been no legal determination upon it, so far as I know, I think it important that *the*principles of this opinion should be carried beforo the Court of Appeals. Not that I consider the law doubtful, but it concerns tho public that it should be definitely settled and made known.

*Jewell vs. Magwood.*

Before Martin, X, at Charleston, May, 1833. This was an appeal from the decision of the Ordinary, revoking letters of administration, which ho had granted to plaintiff, on tho ostato of Benjamin Jewell, on tho ground that plaintiff was an illegitimate son of said Jewell, and granting administration to defondant, Col. Magwood, as agent, or attorney, of Mrs. S. J. Jewell, who claimed it, as being the lawful widow of said Benjamin Jewell.

Tho witness produced, on behalf of plaintiff, was his own mother, Mrs. Storms, to prove her marriage and his own legitimacy. She was objected to, as being incompetent, as she would bo interested in tho distribution of tho estate, and as she could not be admittod to prove her own marriage and his legitimacy. She executed a release, and his Honor allowed her to be examined. She stated her marriage to Jewell about thirty-four or fivo years beforo, at Savannah; that it was not solemnized either by a priest or public officer; that a ring was presented her by Jewell, as a token sufficient, and that there were soveral persons present; that she was a Roman Catholic, born at Cape Francois, and Mr. Jewell a Jew; that they romovod afterwards to Barnwell, in this State, and thence to Charleston; that they had eight children, of whom plaintiff was one, born in Decomber, 1798; that their births were mentioned in a Bible.

On her cross-examination, she stated that she married Storms about fourteen years ago, in tho life time of Jewell, who died in 1828; that she and Jewell separated, and lived apart; that she took a conveyance of a houso and lot in King-street from him, which she paid for to Mm, and that she knew of his marriage, in Virginia, to Mrs. Jewell, who now claims to be his widow. She recognized her handwriting to a paper, dated Savannah, March 10th, 1796, by which she, by her then name, Sophie Prevost, released B. Jewell, for the sum of 8500, from all responsibility, on account of a promise of marriage alleged to have been made to her, and for which she had sued him, etc.

*Mr. Barbott*testified, that he was clerk for Jewell in 1806, and that plaintiff’s mother passed as Jewell’s wife.

*Mr. Galtonncl*knew Jewell from 1796: plaintiff’s mother was treated by him as his wife.

*Mr. Manks,*for defendant, testified, that Jewell was married, in Virginia, during the late war, to Ms present widow, who now lives in Louisiana.

Defendant’s counsel contended, that thero was no ovidence of the alleged marriage of tho intestate to S. Provost; that she herself was incompetent to prove it; that the release of her interest in the estato was insufficient, as her husband, Storms, did not join in it; that her subsequent marriage with him showed her opinion of the connexion with Jowell being only a common cohabitation; and that, on tho whole, she was not entitled to bo believed, under the circumstances in evidence.

His Honor charged the jury, that if they believed her testimony, as to the marriage in Savannah, no subsequent acts between her and Jewell, or of either of them, could invalidate the contract.

The jury found a verdiot for the plaintiff, and the defendant appealed, and moved for a new trial.

*Lance, Petigru,*for appellant.

Thompson, contra.

*114The opinion of the Court was delivered by

Harper, J. The first question relates to the competency of the witness, Mrs. Storms, to prove her own marriage, and the legitimacy of her son. I do not perceive that she was incompetent, within the rules which the law has fixed for ascertaining a witness’s interest. The interest which will disqualify must be direct: the witness must gain or lose by the event of the suit, or the verdict must be evidence for or against him, in some other suit which may arise. It is not enough, that the witness may have an interest in the same question, which may hereafter come to be determined in another cause. How, certainly Mrs. Storms gains nothing directly by the event of this litigation, or the granting of administration to the plaintiff. If she should hereafter claim a distributive share of the intestate’s estate, as his widow, either in the Court of Ordinary or of Equity, this verdict will not be evidence for or against her, though, to he sure, the samo question, the fact of marriage, will be in issue. If the administrator should pay over to her a distributive shave of the estate, it will bo at his own risk, and that of the sureties, if another person should afterwards show herself entitled as widow. This renders it unnecessary to consider the question of tho sufficiency of the releaso.

The remaining grounds of appeal relate merely to the evidence, and were matter for tho jury. In a decree delivered by me, sitting for the Chancellor at Barnwell, in 183S, I had occasion to consider the subject fully, of what will constitute marriage in this State. Certainly, by our law, marriage is regarded only as a civil contract, and whatever is sufficient evidence of the assent of the parties’ minds to enter into that relation, establishes a marriage. This may he either *per verba de*preesenti, <e I take you for my wife,” etc., or *per verba de*futuro, an agreement to marry in future, with subsequent cohabitation. Where parties agree to marry in future, and afterwards cohabit, the law infers that this cohabitation was an execution of the previous agreement. Like other contracts, it may be proved by circumstances, as by the parties living together, and speaking of, or treating each other as husband and wife. Certainly, it is one of the most important engagements into which human beings can enter, and ought not to bo established on light or uncertain evidence. But in the case before us, leaving out of question the rebutting testimony, tho evidence in favor of the marriage was very conclusive. Independently of the direct testimony of Mrs. Storms, the very long cohabitation, with the circumstances attending it, treating each other in every respect as husband and wife, would have justified the verdict of the jury. But the evidence on the other sido was also very strong. Their separation, and the subsequent marriage of both, was evidence that they did not regard each other as ever having sustained the relation of husband and wife. Then the paper mentioned in the brief, purporting to havo been executed at Savannah, on the 10th March, 1796, and that produced before us, said to have been executed on their separation in 1810, were very strong to show the same thing. But then those papers were not properly in evidence before the jury, at least with respect to the former — it was for the jury to say whether it was sufficiently proved or not. If they had been in evidence, however, they would not have boon entirely conclusive. If the marriage became complete, (and if Mrs. Storms is to be believed, hers was so,) no subsequent act or acknowledgment of the parties would invalidate it. Certainly, there were circumstances which went very strongly to discredit the witness, Mrs. Storms; hut we cannot, where there is a conflict of testimony, take from the jury tho right to judge of it. The motion is dismissed.

Johnson, J., concurred.

That is, actual, positive proof, but not in *facie ecclesicB.*