Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-12-12
COURT DECISIONS.
Notes Of Cases Recently Decided,
Which are of,lnterest to
Our People.
DlcEsTED BY W. 3. MARTIN.
Exclusively for virginian-Pilot,>
pIcEsTEp 81 w. 3. MARTlM.
ELpRED v. ELDREp.

Supreme Court Of Appeals OF Virginia.
November 16, 1888.
THE EXISTENCE OF A MARRIAGE
is TO BE DETERMINED BY THE
WEIGHT OF THE EVIDENCE.
GENERALLY IN CIVIL CASES IT
MAY BE PROVED BY REPUTA-
TION. DECLARATIONS AND CON-
DUCT OF THE PARTIES.
THE DECLARATIONS OF THE PAR
TIES, &C, ARE ADMISSIBLE TO
SHOW MARRIAGE AS PART OF
THE RES GESTAE, BUT MUST BE
CONTENIPORANEO
"a PRESUMPTION OF MARRIAGE
ARISING FROM THE CONDUCT
OF THE PARTIES AND GENERAL
REPUTATION MAY BE OVER
COME BY OTHER EVIDENCE.
BUT, IT MUST BE coGENT AND
SATISFACTORY.
The only question in this case was
whether e. d. Eldred, deceased, and
Zellah Keiner had been married. The
lower court held that they had mar
ried and the defendants appealed.
The Court says:
No witness Is produced who processes
to have any knowledge OF a marriage
between these parties. No certificate of
marriage is produced, and therefore
the declarations Of e. B. Eldred
and the conduct Of the parties are
alone relied on to raise the presump-
tion of their marriage.
Marriage may, doubtless be proved in
civil cases, other than actions for Sc
duction, by reputation, declarations and
conduct of the parties but where repu-
tation Is relied on, that reputation, to
raise the presumption of marriage.
must be founded on general, not d.
vided or singular opinion; and where
reputation in such case Is divided, it
amounts to no evidence at ALL And SO
with respect to the declarations of the
parties, the value of such declara tions
as evidence will always depend upon
the circumstances under which they
were made. If parties live together os-
tensibly as man and wife, demeaning
themselves toward each other as such.
and especially If they are received into
society and treated by their friends
and relations as having and being en-
titled to that status, the law WILL in
favor of morality and decency, pre-
sumo that they have been legally mar
ried. But cohabitation and repute do
not constitute marriage: they are only
SNitouSC lSuoihE W IdkSe IL
ton of marriage, and, like any other
presumption of fact may be overcome
by countervailing evidence.
The declarations of parties and other
attendant circumstances of cohabita-
tion all of which are admissible, as
part Of the res gestae, to show n vir-
tuous intercourse between man and
woman, must, together with the repute
originating In consequence, be contem-
ponaneous with that intercourse and
not subsequent.
The presumption OF marriage from
cohabtation, apparently matrimonial,
is one of the strongest Prescriptions
known to the law. Where there Is
enough to create foundation for the
presumption of marriage it can be re-
PEELED only by the most cogent and
satisfactory evidence But in every
case the presumption Of virtue and
lawful marriage may be rebutted and
cohabitation alone Is not sufficient
proof of marriage; there must appear
a matrimonial cohabitation, and this
justified by contem poraneous behavior
of the parties, such as should furnish
society the reputation Of marriage,
1.-THE Court considers at great length
the evidence In the case and coming to
the conclusion that no marriage had
been proved concludes1:
We are Of opinion that the decree
appealed from is erroneous and should
be reversed and annulled. Reversed.