The opinion of the Court was delivered by
Moses, C. J.
Objection is made by the grounds of appeal to the competency of the witness, Vere Balfour, the alleged wife of Robert Ferguson.
It proceeds from an erroneous application of the well recognized common law principle, that husband and wife are not admissible as witnesses, in cases in ■which the other is a party. The exclusion is founded not only on the relation in which they stand to each other, but upon reasons founded on considerations of public policy.
Though they are not allowed to testify, where the interest of either is directly involved in the result, “ yet, in collateral matters, not immediately affecting their mutual interests, their evidence is receivable, notwithstanding it may tend to criminate, or may contradict the other, or may subject the other to a legal demand.’’— 1 Green. Ev., 141.
The decision in the case of the King vs. Cliviger, (2 T. R., 263,) which held that a wife shall not be called in any case to give evidence, even tending to criminate her husband, was considered and overruled by the case of the King vs. Bathwich, 2 Barn, and Ad., 639, in which Lord Tenterden, C. J., drew the distinction between the application of the rule, where the proceeding made a direct charge against the husband for any offence, or its immediate result was to affect his interest, and where it was only collateral, and did not, of itself, act on his interest.
On a prosecution for bigamy, or in an action for criminal conversation. proof of actual marriage is required. In all other cases, marriage may be presumed from cohabitation, reputation, acknowledgment of the parties, and other circumstances from which it may be inferred. — Fenton vs. Reed, 4 John., 54.
In Allen vs. Hall, 2 N. and McC., 114, the principles above announced were carried to the extent of holding that the declarations of the husband or wife, as to the marriage, were admissible.
[205]*205The ground of appeal which charges a want of compliance, in the execution of the commissions, with the requisitions of the rules of Court, and the prevailing practice, is not well taken. Where the return itself shows that the commission has been executed according to the provisions of the law, he who avers against it must make good the objection, by affidavit, or in some other competent form. The allegation of want of proof that the Commissioners took the prescribed oath is founded in mistake. The certificate annexed to each commission, with a strictness not generally observed, states, distinctly, that the Commissioners were sworn before they proceeded to take the testimony. The envelopes bore on their face the foreign post mark, were received by the officer to whom they were addressed, in the regular course of mail, and we are not to presume fraud or wrong, in reference to any of the parties who had to deal with them.
It is complained that the Commissioner published the commissions offered on reference, when it should only have been done in open Court.
The order of Chancellor Johnson, at June Term, 1858, directed the Commissioner to make a full report of the testimony, with liberty to the parties to take out commissions to examine witnesses out of the State, &c. How could he report the testimony in full, without hearing that of all the witnesses offered; and if the commissions rightfully issued — which is admitted — the parties were as much entitled to the evidence thus obtained as if the persons who gave it were present to be placed upon the stand ?
How can it be said that the commissions were not published in open Court?
The Commissioner was then holding the reference in obedience to the order of the Chancellor. Acting within the limits of his jurisdiction, he was presiding in his Court, with the same right as the Chancellor possessed, to decide on all questions touching the competency of testimony, and on all points incidentally arising before him. It would be a most singular conclusion, to hold that he had not authority to order the publication of a commission w'hich contained testimony to be heard and reported by him.
The right was claimed by the defendants, on the reference, to attack the character of one Job Russell, who had made some affidavit, which, with others, was before Chancellor Johnson when he made the order of June, 1858, already referred to. The Circuit Court sustained the course of the Commissioner in refusing to allow [206]*206such testimony, and error in this particular is submitted by one of the grounds of the appeal.
If a party was permitted to attack the character of an individual who had not been a witness in the cause, it is difficult to perceive' where litigation, in such case, would terminate. The character of a witness is liable to attack, on the presumption that, in the course of the proceeding, he has sworn something of prejudice to the side which, therefore, thinks it necessary to weaken its force by assailing his reputation. If the defendants could attack the character of Russell, who was not a witness, because he may have had an active agency in collecting proofs for the plaintiffs, as well might the same course be permitted as against any one who had manifested an interest in the success of the cause, the one way or the other ?
On the hearing, however, before the Chancellor, Russell was examined as a witness. The defendants then had full opportunity to impugn bis testimony. When the opportunity was offered, they refrained from availing themselves of it, and then complain they were prevented from doing it, when, by the rules of evidence, it was not competent for them to do so.
We are now brought to the consideration of the only material point upon which the pleadings raise an issue.
That Mary, the plaintiff, was married to Robert Ferguson on the 1st day of April, 1839, and that, living the said Robert, she then married the said Simon A. Leaphart, on the 1st of December, 1852, are facts established by the testimony. Simon A. died in 1853, and the said Mary Avas his Avidow, unless the marriage was invalid by reason of some legal impediment. If her marriage Avith Ferguson AA'as binding, because lawful, then the union Avith Leaphart was null, and neither heirship or any legal consequence, could folloAV.
It became important, therefore, to the plaintiffs, to show that the first marriage of the said Mary Avas void, by satisfying the Court that, at the time of the supposed alliance Avith Ferguson, he had a Avife living. It was incumbent on the plaintiffs to sustain the affirmative ; the burden of proof Avas on them.
Marriage is a question of fact. Here it was to be solved by the Chancellor; and after a full hearing and consideration of the testimony he has decided that the marriage of the plaintiff Mary to Ferguson was unlaAvful, because, at the time, he had a wife alive.
The principal argument that has been made in this Court against [207]*207the proof tending to sustain the conclusion of the Chancellor, is founded on the discrepancy and confusion exhibited in the testimony of the witnesses who were examined on the part of the plaintiffs.
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The opinion of the Court was delivered by
Moses, C. J.
Objection is made by the grounds of appeal to the competency of the witness, Vere Balfour, the alleged wife of Robert Ferguson.
It proceeds from an erroneous application of the well recognized common law principle, that husband and wife are not admissible as witnesses, in cases in ■which the other is a party. The exclusion is founded not only on the relation in which they stand to each other, but upon reasons founded on considerations of public policy.
Though they are not allowed to testify, where the interest of either is directly involved in the result, “ yet, in collateral matters, not immediately affecting their mutual interests, their evidence is receivable, notwithstanding it may tend to criminate, or may contradict the other, or may subject the other to a legal demand.’’— 1 Green. Ev., 141.
The decision in the case of the King vs. Cliviger, (2 T. R., 263,) which held that a wife shall not be called in any case to give evidence, even tending to criminate her husband, was considered and overruled by the case of the King vs. Bathwich, 2 Barn, and Ad., 639, in which Lord Tenterden, C. J., drew the distinction between the application of the rule, where the proceeding made a direct charge against the husband for any offence, or its immediate result was to affect his interest, and where it was only collateral, and did not, of itself, act on his interest.
On a prosecution for bigamy, or in an action for criminal conversation. proof of actual marriage is required. In all other cases, marriage may be presumed from cohabitation, reputation, acknowledgment of the parties, and other circumstances from which it may be inferred. — Fenton vs. Reed, 4 John., 54.
In Allen vs. Hall, 2 N. and McC., 114, the principles above announced were carried to the extent of holding that the declarations of the husband or wife, as to the marriage, were admissible.
[205]*205The ground of appeal which charges a want of compliance, in the execution of the commissions, with the requisitions of the rules of Court, and the prevailing practice, is not well taken. Where the return itself shows that the commission has been executed according to the provisions of the law, he who avers against it must make good the objection, by affidavit, or in some other competent form. The allegation of want of proof that the Commissioners took the prescribed oath is founded in mistake. The certificate annexed to each commission, with a strictness not generally observed, states, distinctly, that the Commissioners were sworn before they proceeded to take the testimony. The envelopes bore on their face the foreign post mark, were received by the officer to whom they were addressed, in the regular course of mail, and we are not to presume fraud or wrong, in reference to any of the parties who had to deal with them.
It is complained that the Commissioner published the commissions offered on reference, when it should only have been done in open Court.
The order of Chancellor Johnson, at June Term, 1858, directed the Commissioner to make a full report of the testimony, with liberty to the parties to take out commissions to examine witnesses out of the State, &c. How could he report the testimony in full, without hearing that of all the witnesses offered; and if the commissions rightfully issued — which is admitted — the parties were as much entitled to the evidence thus obtained as if the persons who gave it were present to be placed upon the stand ?
How can it be said that the commissions were not published in open Court?
The Commissioner was then holding the reference in obedience to the order of the Chancellor. Acting within the limits of his jurisdiction, he was presiding in his Court, with the same right as the Chancellor possessed, to decide on all questions touching the competency of testimony, and on all points incidentally arising before him. It would be a most singular conclusion, to hold that he had not authority to order the publication of a commission w'hich contained testimony to be heard and reported by him.
The right was claimed by the defendants, on the reference, to attack the character of one Job Russell, who had made some affidavit, which, with others, was before Chancellor Johnson when he made the order of June, 1858, already referred to. The Circuit Court sustained the course of the Commissioner in refusing to allow [206]*206such testimony, and error in this particular is submitted by one of the grounds of the appeal.
If a party was permitted to attack the character of an individual who had not been a witness in the cause, it is difficult to perceive' where litigation, in such case, would terminate. The character of a witness is liable to attack, on the presumption that, in the course of the proceeding, he has sworn something of prejudice to the side which, therefore, thinks it necessary to weaken its force by assailing his reputation. If the defendants could attack the character of Russell, who was not a witness, because he may have had an active agency in collecting proofs for the plaintiffs, as well might the same course be permitted as against any one who had manifested an interest in the success of the cause, the one way or the other ?
On the hearing, however, before the Chancellor, Russell was examined as a witness. The defendants then had full opportunity to impugn bis testimony. When the opportunity was offered, they refrained from availing themselves of it, and then complain they were prevented from doing it, when, by the rules of evidence, it was not competent for them to do so.
We are now brought to the consideration of the only material point upon which the pleadings raise an issue.
That Mary, the plaintiff, was married to Robert Ferguson on the 1st day of April, 1839, and that, living the said Robert, she then married the said Simon A. Leaphart, on the 1st of December, 1852, are facts established by the testimony. Simon A. died in 1853, and the said Mary Avas his Avidow, unless the marriage was invalid by reason of some legal impediment. If her marriage Avith Ferguson AA'as binding, because lawful, then the union Avith Leaphart was null, and neither heirship or any legal consequence, could folloAV.
It became important, therefore, to the plaintiffs, to show that the first marriage of the said Mary Avas void, by satisfying the Court that, at the time of the supposed alliance Avith Ferguson, he had a Avife living. It was incumbent on the plaintiffs to sustain the affirmative ; the burden of proof Avas on them.
Marriage is a question of fact. Here it was to be solved by the Chancellor; and after a full hearing and consideration of the testimony he has decided that the marriage of the plaintiff Mary to Ferguson was unlaAvful, because, at the time, he had a wife alive.
The principal argument that has been made in this Court against [207]*207the proof tending to sustain the conclusion of the Chancellor, is founded on the discrepancy and confusion exhibited in the testimony of the witnesses who were examined on the part of the plaintiffs.
It was suggested, with much zeal, that the testimony to identify the said Ferguson with the person who married Vere Miller should be entirely disregarded, by reason of the uncertainty created by the dates to which they refer, as fixing the periods when they trace him from Scotland to this country, and through several States of the Union.
There is, probably, nothing in which the memory is so much at fault as the matter of dates. Events which transpire before the eyes, and thus become impressed upon the mind, are borne in recollection by the incidents with which they are connected. They take position in the memory, and can almost bo pictured on paper with the pencil. We know that they occurred, and the place of their occurrence is fixed with them. We can remember them with a singular vividness, can refer to the spot at which they transpired, but cannot fix the ¡precise day on which they were witnessed. It is enough that the witnesses trace the said Ferguson, from time to time. True, it wrnuld be an important breach in the chain of testimony, if it established the fact that ho was in the United States about the period it is affirmed he married in Glasgow.
The presumption so assiduously urged by the counsel, that the Vere Balfour, w'ho has testified as being the woman the said Ferguson married, is not the same person whose maiden name was Vere Miller, is not founded on a particle of evidence in the mass which has been offered. Not a word of the testimony even intimates a circumstance to justify such an inference. The effort would have been more plausible to show that there were' two Robert Fergusons, than that the Vere Miller has been personated by some woman, to play her part, as a witness, on behalf of these plaintiffs.
The Chancellor, after full consideration of the proof, held that the marriage between the plaintiff, Mary, and Simon A. Leaphart was valid, and that she and his daughter (the co-plaintiff) were his heirs at law and distributees.
We are asked to reverse his conclusions on the facts, or to order an issue under which they may be passed upon by a jury.
This renders it proper that we should advert to the course and practice of the Court in like matters.
[208]*208la the City Council of Charleston ads. Hagemeyer et al., Riley’s Eq., 120, the Court say: “ The object of au issue at law is to satisfy the conscience of the Chancellor, and motions for them are necessarily addressed to his discretion. This is a matter in which the Court rarely interferes, and never, except in cases of great doubt.”
In Pasley vs. Martin, 5 Rich. Eq., 354, Chancellor Johnston, in his Circuit decree, remarks: “ Issues are ordered on matters of fact, at the discretion of the Chancellor, to relieve his mind. In this case, I have no doubt which would induce me to refer the facts to a jury.”
Chancellor Dunkin, delivering the opinion of the Appeal Court, says: “That the judgment (of the Chancellor) is well sustained by the reasons which he has presented.”
In Kilpatrick vs. Atkinson, 41 Rich. Eq., 30, the same Chancellor, expressing the views of the same Court, says: “This is an appellate tribunal, and it is incumbent on the party asking for a revision of the Chancellor’s j udgment to satisfy this Court that he has miscarried.”
We are aware that this Court has the power to order an issue at law, oven when no application has been made for it on Circuit; (Sinclair vs. Riddle, 1 Hill Ch., 440;) but, in exercising it, we must have regard to the considerations which should prompt its action. Do our consciences require relief from any doubts which the verdict of a jury can administer? Do we regard the evidence so conflicting, or its weight so uncertain, that our judgment on the facts cannot readily incline in the one direction or the other?
We have not been reduced by our examination of the testimony to this condition of doubt, and, therefore, afiirm the judgment of the Chancellor, establishing as valid the marriage of the said Mary Leaphart ■with the said Simon A. Leaphart.
We do not perceive any material error in so much of the decree as refers the accounts of the several personal representatives to the Commissioner. If there is no liability, by reason of assets received, they cannot be prejudiced by the order.
The motion is dismissed.
Willard, A. J., concurred.