The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-10-01

And again:
/ VIII Probably Maintain Her AIIeea-
lions.
''The question now before US, how
! ever, is not whether upon the proofs as
/ shown by the parties q final Judgment
/ should be rendered, that there has been
| an actual valid marriage between the
/ parties. The question now is, Do the
! proofs of the parties give reason to ap-
/ prehend that upon a trial of the issues
! between them there is the fair proba-
| bility that the plaintiff will maintain
! her allegations? This question is to be
/ determined for the purpose of this ap-
! plication. This is one in which the pub
lie is interested as well as the parties.
IF there has been a binding contract of
marriage, it is of public as well as pri-
/ ya.te interest that it be shown and
maintained It is evident from what
is before us that it can be shown and
maintained only by professional skill
and vigor. to secure which to the plain
! tiff pecuniary means are needed"
This statement Of the rule fully meets
my approval, and is supported by au-
thorities.
| If then, from the evidence the plain
| tiff has satisfied the court that she is
acting in good faith in her claim of
ability Of her being able to prove the
fact, if she has an opportunity. it is the
duty of the court to direct that she
have alimony and suit money. Before
! proceeding to consider the evidence it
is necessary to determine what consti-
tutes marriage, and the evidence
thereof, under the law of Utah. In 1887
Congress by law required every mar
rage ceremony to be certified by i GER
tificate signed by the parties and the
officer or person celebrating the mar
riage. and a record to be. made thereof,
which was declared with the certi-
cate) to be pr1ma facie evidence there
Of. It was also enacted that nothing
in the act should be held to prevent
the proof of marriages by any other
evidence then legally admissible for
the purpose. It is conceded this legis-
lation is directory only, and therefore
has no bearing upon the case in hand.
In March, 1888. the territorial leSisla-
ture enacted a law regulating mar
riage &C. L. Vol. 2. $3.50 Marriage is
prohibited and declared void, When
not so solemnized by an authorized
person. except as provided in section
of this act" Section Z simply deslg-
mates the persons who may solemnlze
marriage. and if section is really the
section referred to in the exception
above stated, the reference is meaning
less and without point, since the leg1s-
lature is made to say that a marriage
is void when not solemnlzed by an au-
thorized person, except when solemn
lied by the very persons designated as
being authorized. Section 9, however,
is as follows:
mo marriage solemnized before any
person protesting to have authority
therefor shall be invalid for want OF
such authority, if it is consummated
with the belief of the parties, or either
of them. that he had authority, and
that they have been lawfully mar
ried." The exception to paragraph
of section ., quoted above, apples
clearly to section 6, and the mineral
7 EMPLOYED in section is manifestly
intended for 6, and in the construction
Of the act must be so read.
Oral Profession Not Necessary.
It is contended by counsel for de-
fendant that the exception provided
for in section 6 includes cases, and
those only, where the person assuming
to celebrate marriage verbally pro
fesses to have authority. In other
words, that such person must say
something indicating that he is really
what he appears to be, in order to
profess to have authority. The appli-
plication of this contention, If sus-
tanned, will hereafter appear. do not
so interpret the language of the stat
ute. In enacting this section, the leg
islature plainly intended to protect
innocent persons against consequences
resulting from the acts of persons who
in fact were unauthorized, but who
professed or pretended to have author
ity A person deceived by the appear
ance or semblance of authority, mani
tested by act or conduct, and thus in
duced to believe the assumed authority
existed, is clearly within the protection
Of the statute, as much so as If the
belief was induced by oral statements.
Among the definitions of the verb
profess is, ''to set up a claim to-
ito make pretense to- TO put on or
present an appearance Of" I think
protesting in the statute is equiVa-
lent to pretending" and that it is
quite immateriaI how the profession
or pretense is made, whether by word,
act or conduct.
The plaintiff alleges a marriage with
the defendant in this city and county
on the 18th day of October, A. D. 1888.
1t appears. from the evidence that the
plaintiffs mother, Mrs. Burglund, a
widow, came to this territory from
Sweden in 1879 or 1880, with the two
daughters, the plaintiff and the elder
sister who had been married, but was
at the time of the beginning of this
history divorced, or at least was living
apart from her husband and with her
mother The family were in reduced
circumstances, and the mother earned
living as a dressmaker. In the fall
of 1887, the defendant made the ac-
quaintance of the plaintiff, then
young girl of Is years, and during the
year following paid her some atten
ton. taking her out buggy riding and
visiting her at her home.
The plaintiff testif1es (corroborated
by her mother,) that during this time
he gave her a diamond ring and a gold
watch. This he denies, but admits
giving her a sealsI1in cap and boa on
Christmas. 1888, and also presents to
her mother and sister. Plaintiffs
mother testifies that the association
and intimacy became so pronounced
that in the fall Of 1888 she questioned
the defendant as to his intentions to-
ward plaintiff, stating that her daugh- |
ter was young, was not educated nor
accustomed to homework, and in her
Judgment would not make a suitable
wife for man of defenants years and |
position. Defendant was thirty years |
of age and engaged in real estate and |
brokerage business. Mrs Burglund !
states that defendant told her that his |
intentions were good, and that he was |
fond of her daughter, that she was the |
only girl he liked, and if he married |
anyone, he would marry her. On or
prior to the 18th of October, 1883, and |
before the alleged marriage of that !
date, defendant brought Tor sent some |