The morning call., 1891-05-08
MISGUIDED MINNIE.
Her Marriage With Cle0n Kill
burn a Failure.
End Of Sensational skating-Rink Case-The
Supreme Court Renders a Decision
Touching Unions by Contracts.

Cleon Kilburn, wealthy resident OF Sa-
llnas, fell victim to the roller-skating cTf d,
early In the year 1885, and willis he was
cireling around the shining floor taking
bumpers" and wasting his energy On fg.
ure SIS he became sensible that his move
ments were being watched with interest by
particularly pretty pair of eyes.
He speedily became acquainted with the
proprietor of the pair CT eyes, who was
rather pretty herself, and Minnie be-
came a mother on May IL, 1856
One week after this important event
Gloon called upon Minnie at the residence
OF her sister, where she was staying. They
met in the parlor alone, and according TO
MInnie'S statement, they agreed upon
marriage, which was to be kept secret in
Salinas, but not elsewhere, and the baby
was TO bear Cleon's name.
Minnie's mother and sister state that
Minnie and Cleon repeated the agree
ment In their presence, and CleOn
urged Minnie to go to neighboriAg county
with her mother and live there awhile.
Mlnne's mother testified subsequently
when the matter was brought into the Su-
peTl0r Court that she was authorized by
hilburn TO introduce Minnie as his wife,
aud she did so; "only he wanted il kept
quiet so that it would not be known III the
valley. He did not care about it elsewhere.
AN ACTION FOR DIVORCE.
Minnie and her mother went To live III
San Jose. but from that time until suit for
divorce was brought by her she and Cleon
never lived together, and no evidence was
produced that they were reported to be hus-
band and wife in the place where they re-
sided. Cleon never contributed more than
$40 for the support of Minnie and her child.
The mother testified at the trial that she
introduced her daughter as Kll6urn'a wife,
but her testimony was not corroboIated.
kilburn denied that he ever agreed 10
marry Minnie, and produced eOrT0borative
evidence, his defense TO tue suit for di-
VOrce being that there was no marriage.
Nevertheless the court found against him
and in Mlnnie'S favor. The case was APP
pealed TO the Supreme Court, which yester-
day rendered a decision in kllUurn favor.
The court held that according to the code,
Marriage is q personal relation arising
out OF a civil contract to which the consent
OF parties capable of making it is neeeS-
Sary. Consent alone will not constitute
marriage. 1t must be followed by solen-
nZation, or by mutual assumption OIL mari
tai rights, duties or obligations"
In the case at bar the question which the
Supreme Court was called upon to decide
was whether the evidence was sufficient to
establish the fact that martial rights, duties
anu OOHsatlOnS naU Deen aSSulneu Dy LHe
parties.
AS IN THE SHARON CASE.
The court held, as in the case Of Sharon
against Sharon, that the commencement of
true and open matrimonial Capitalization
under an agreement 10 live together as huS-
band and wife is mutual ASSUMPTION of
marital rights, but in the case of Klburn,
the evidence tell far short Of showing that
after the alleged consent to marry they ever
assumed the marital right, nor was there
anything TO indicate tn the community that
they had assumed such relation.
The defendant offered to prove that on
September 3, 1887, he was married to Nellie
Rose, the woman with whom he was
charged in the complaint for divorce with
inhdelity, and for this purpose produced
marriage license and certificate, bat these
papers were excluded by the Superior
Court.
This kind of evidence, the Supreme Court
in giving its decision says, has been con-
sdered sufficient to rebut the presumption
of marriage, which otherwise would follow
from proof of cohabitation and general
reputation that such cOhabitation was matri-
mOnial in its nature. This offered evidence
demonstrates the wisdom of the law in re-
Qurng an open matrimonial cohabitati0n of
the parties thereto as evidence OF marriage,
where there is no solemniZation, so that
those contrasting the relation may have
some reasonable assurance that its validity
and the legitimacy of their children will not
be overthrown 10y proof OF prior secret
marriage, upon the part Of either the hus-
band or wife, aud of which the other had
no notice or suspicion.