The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1892-12-28

stiles of the people. This is par
ticularly true of the territory of Utah.
In the case of Henry Thomas VS.. the
Union Pacific Railroad company, decided
! by the supreme court of the territory of
Utah, Lowe, chief justice, in delivering
the opinion OF the court, used the follow
ing language:
This question was directly adjudicated in the
case OF OsDorn VS.. Gillett. above cited, in which
the court Of exchequer held that the special
damages for loss OF services and for burial ex-
penses were not recoverable at common law.
To the same effect is Quinn vs.. Monroe, Is N.
\ to the reasonableness of this doctrine it
! WOu be useless to speculate. 1t is so firmly
esIa lished that we cannot disregard ii unless
wa lgli IRE the common law as rule of decision.
T Whle this is conceded by the plaintiff TO be the
rule OF the common law, it is insisted that as
the case is res noUd here we are at liberty to
adQpt different rule If sufficiently commended
/ 10 our Judgment. We do not think SO.
Although the common law has not been
adopted in this territory by any statute, we
entertain no doubt that it should be regarded
as prevailing here, so far as it is not lncompat-
1ble with our situation and government and
that 1t is TO be resorted 10 as furnishing to that
! extent the measure of personal rights and the
rule of judicial decision. Such is practically
the extent of its adoption and recognition in
the federal courts and in the several states al
though il has been reached in some instances
by enactment, and in some Of the states and in
the federal courts by course OF judicial decision.
AT the May term, 1874 this court held. in the
case OF the First National bank OF Utah vs..
Kinner, Emerson j., giving the opinion of the
court. that the common law was part OF the
law OF the territory, and the proposition cannot
be regarded as doubtful or requiring special
(See / Utah reports, 232; also the
People VS.. Moroni Green, Utah, p. II,
where the same doctrine is adhered to by
the court.
In the case of the United States VS..
Thomas Simpson, Utah, 227, the de-
PENDANT was indicted and convicted of
poiygamy, and it was alleged that the
court erred in charging the jury that they
could infer marriage from the deliberate
statements or admissions of the defend
ant. But the court in its opinion stated
the law to be as follows:
In this territory there is no law regul ating
marriage. 10 form of ceremony is required
and no record Of marriage is kept. Marriage is
sensual marriage is, in all respects, valid.
There need be no witnesses present. If the
parties are competent to contract, all that is
essential is present agreement The mar
riage is complete when there is full, free and
mutual consent by the parties capable of con-
tracing, though not followed by cohabitation.
In another case decided by the same
court the question as to the proof of
prior marriage was involved, and the
court, in delivering its opinion, stated:
We are entirely without statue upon the sub
ject of marriage, and the manner of its cele-
bration and the proof thereof are left as COM
mon law AS no special ceremony is required
at common law, no proof is required to show
whether any was performed or not. The only
questions to be determined in this respect
were whether the defendant and Emily Spencer
were ever married, and If So was that mar
riage prior to that between defendant and
Carrie Owens? The existence of such mar
rage may be shown by evidence of facts from
which it may be referred" UNITED State o.
John A Miles, Utah, 49,
This case went to the Supreme Court of
the United States and was reversed be-
cause the second wife was allowed to tes-
tify in the case, but no error was found
in the position taken by the court on the
question Of the validity of common law
marriages in Utah. COB United States
reports, S. e. 304.)
Under these authorities your reflection
was clearly error, as a valid common law
marriage could have arisen between the
soldier and claimant after the removal of
the impeachment to such marriage by the
death of the former wife. Your rejec-
ton IS, therefore, overruled, and you are
directed to proceed with the adjudication
of the claim on its merits, and to investi-
gate the same fully by aid of special ex-
animation.