[415]*415
By the Court,
Mullin, J.
The defendant set up, as a ' defence to the note on which the action was brought, that she was a married woman when the' note was made and indorsed, and still was, and that she was in no way interested or benefited by said- note, either in person or property; and denied that she was a partner of the defendant. On the trial, the defendant offered to prove, by reputation and cohabitation, that she was a married woman. The evidence was objected to, and the objection was sustained, and the evidence was rejected. If the fact of marriage could be proved'by this species of evidence the judgment must be reversed, and a new trial ordered. 1
It is said in Bishop on Marriage and Divorce, (§ 324,) that ■ when parties are cohabiting together as husband and wife, under the reputation of being married, the universal principle of law, that all persons are presumed innocent until the contrary is shown, comes in and says they shall be prima facie considered to be married, and not to be living in an unlawful intercourse. Therefore,. because intercourse is presumed, proof of cohabitation and repute is sufficient evidence of marriage, except when the proof of marriage involves the proof of an offense, either in one of the .parties or in some third person.
It is said in Birt v. Barlow, (1 Doug. 160,) that an action for criminal conversation is the only civil case where it is necessary to prove an actual marriage. In other cases cohabitation, reputation, &c., are equally sufficient. In Morris v. Miller, (4 Burr. 2057,) it was' held that reputation, declarations of parties, &c., are admissible to prove marriage except crim. con. and bigamy. It was held in Fenton v. Reed, (4 John. 52,) that proof of actual, marriage is only required in prosecutions for bigamy, and in actions for crim. con. A marriage may be proved in other cases from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage may be inferred. In Jackson v. [416]*416Clow, (18 John. 346,) the court says,' cohabitation and declarations of the parties afford strong prima facie evidence of a marriage in fact. The chancellor, in 8 Paige, 571, says: “ That an actual marriage may be inferred in ordinary cases from cohabitation, acknowledgment of parties, &c., as well as by positive proof of the fact, there can be no room to doubt.” In The Matter of Taylor, (9 Paige, 611,) the chancellor says, that declarations, &c., to be evidence, must be parts of the res gestee. In Clayton v. Wardell, (4 N. Y. 230,) it is said the agreement (of marriage) may, like any other fact, be proved either by direct or circumstantial evidence. In the same case it is said, reputation, &c., is not competent in a case of bigamy; marriage in fact must be proved by direct evidence. But when bigamy comes in collaterally, as in proceedings for a legacy, it is competent.
It will be perceived by the cases cited, that actions for erim. con. and indictments for bigamy, are exceptions to the general rul.e which allows marriage to be proved by evidence of cohabitation, &c. But there are other exceptions not referred to in the cases from the English reports above cited, such as actions for annulling the marriage ■contract by reason of force or fraud, adultery, &c., and for a limited divorce. (Bishop on Marriage and Divorce, § 315, et seq.)
The case of The Commonwealth v. Littlejohn, (15 Mass. 162,) is another exception within the principle laid down by Bishop, (cited supra,) “ as it involves the proof, of an offense in one of the parties.” The defendants in that case were indicted for lascivious cohabitation, one of them being married. It was .held, the presumption of intercourse could only be overcome by direct proof of the marriage.
The counsel for the defense concedes that the rule is as I have stated it, but insists that when the rule was established neither husband nor wife could be parties, and inas[417]*417much as they are now competent, and as the law requires the best evidence the nature of the case will admit of to be given, the defendant should have been called in this ease to prove an actual marriage, instead of resorting to the inferior and less satisfactory evidence of cohabitation and reputation. When the rule was established which permitted the proof of marriage by reputation, &c., it is true, neither husband nor wife could be witnesses for or against each other. But the rule which admitted the inferior evidence was not limited to cases in which the husband and wife were parties. It extended to all cases in which the question of marriage was in issue. In actions of ejectment, and to recover legacies,-the fact of marriage might be in issue between parties as between whom both husband and wife were competent witnesses, and yet I apprehend it was never held that the evidence by reputation, &c., was incompetent, and the husband or wife required to be produced to prove the marriage. In Doe v. Flemming, (4 Bing. 266,) the plaintiff claimed to recover the premises as heir at law to his brother the person last seised. His father was still alive, and the only evidence of the lessor of the plaintiff having been born in lawful wedlock was the reputation of his parents having lived together as husband and wife. There was a verdict for the plaintiff, and a new trial was moved for, on the ground that though reputation was evidence of marriage in ordinary cases, yet when the plaintiff was to recover as heir at law, when his being such was the sole question to be tried and his father was still alive, direct evidence of the marriage ought to have been furnished. Park, J., said: “The general rule is, that reputation is sufficient evidence of marriage, and a party who seeks to impugn a principle so well established, ought at least to furnish cases in support of his position. As we have heard none, I see no reason for disturbing the verdict.” Best, Ch. J., said: “ The rule has never been doubted. It appeared on the trial that the mother of the [418]*418lessor of the plaintiff was received into society as a respectable woman, and under such circumstances improper conduct ought not to be presumed.” And the rule was refused.
I apprehend that the rule which requires the best evidence to be furnished has no application to the case in the sense in which it is sought to be applied. The best or highest evidence is required in preference to that which is secondary, such as documentary to paroi evidence; that of a subscribing witness to proof of his handwriting. But there is no authority for rejecting circumstantial evidence of a fact because it appears that persons are living who saw or were personally cdgnizant of it. (1 Greenl on Ev. § 82.) In proving or disproving handwriting, it is not essential to call the witness, but evidence of others who are familiar with it may be received. (See also 2 Cowen & Hill’s Notes, 541.) The rule is very well illustrated in the case of The Commonwealth v. James, (1 Pick. 375.) There the defendant was arrested for stealing a quantity of barilla, and it was shown that it was sent by a truckman to his mill, .and after being ground was returned by the same man.
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[415]*415
By the Court,
Mullin, J.
The defendant set up, as a ' defence to the note on which the action was brought, that she was a married woman when the' note was made and indorsed, and still was, and that she was in no way interested or benefited by said- note, either in person or property; and denied that she was a partner of the defendant. On the trial, the defendant offered to prove, by reputation and cohabitation, that she was a married woman. The evidence was objected to, and the objection was sustained, and the evidence was rejected. If the fact of marriage could be proved'by this species of evidence the judgment must be reversed, and a new trial ordered. 1
It is said in Bishop on Marriage and Divorce, (§ 324,) that ■ when parties are cohabiting together as husband and wife, under the reputation of being married, the universal principle of law, that all persons are presumed innocent until the contrary is shown, comes in and says they shall be prima facie considered to be married, and not to be living in an unlawful intercourse. Therefore,. because intercourse is presumed, proof of cohabitation and repute is sufficient evidence of marriage, except when the proof of marriage involves the proof of an offense, either in one of the .parties or in some third person.
It is said in Birt v. Barlow, (1 Doug. 160,) that an action for criminal conversation is the only civil case where it is necessary to prove an actual marriage. In other cases cohabitation, reputation, &c., are equally sufficient. In Morris v. Miller, (4 Burr. 2057,) it was' held that reputation, declarations of parties, &c., are admissible to prove marriage except crim. con. and bigamy. It was held in Fenton v. Reed, (4 John. 52,) that proof of actual, marriage is only required in prosecutions for bigamy, and in actions for crim. con. A marriage may be proved in other cases from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage may be inferred. In Jackson v. [416]*416Clow, (18 John. 346,) the court says,' cohabitation and declarations of the parties afford strong prima facie evidence of a marriage in fact. The chancellor, in 8 Paige, 571, says: “ That an actual marriage may be inferred in ordinary cases from cohabitation, acknowledgment of parties, &c., as well as by positive proof of the fact, there can be no room to doubt.” In The Matter of Taylor, (9 Paige, 611,) the chancellor says, that declarations, &c., to be evidence, must be parts of the res gestee. In Clayton v. Wardell, (4 N. Y. 230,) it is said the agreement (of marriage) may, like any other fact, be proved either by direct or circumstantial evidence. In the same case it is said, reputation, &c., is not competent in a case of bigamy; marriage in fact must be proved by direct evidence. But when bigamy comes in collaterally, as in proceedings for a legacy, it is competent.
It will be perceived by the cases cited, that actions for erim. con. and indictments for bigamy, are exceptions to the general rul.e which allows marriage to be proved by evidence of cohabitation, &c. But there are other exceptions not referred to in the cases from the English reports above cited, such as actions for annulling the marriage ■contract by reason of force or fraud, adultery, &c., and for a limited divorce. (Bishop on Marriage and Divorce, § 315, et seq.)
The case of The Commonwealth v. Littlejohn, (15 Mass. 162,) is another exception within the principle laid down by Bishop, (cited supra,) “ as it involves the proof, of an offense in one of the parties.” The defendants in that case were indicted for lascivious cohabitation, one of them being married. It was .held, the presumption of intercourse could only be overcome by direct proof of the marriage.
The counsel for the defense concedes that the rule is as I have stated it, but insists that when the rule was established neither husband nor wife could be parties, and inas[417]*417much as they are now competent, and as the law requires the best evidence the nature of the case will admit of to be given, the defendant should have been called in this ease to prove an actual marriage, instead of resorting to the inferior and less satisfactory evidence of cohabitation and reputation. When the rule was established which permitted the proof of marriage by reputation, &c., it is true, neither husband nor wife could be witnesses for or against each other. But the rule which admitted the inferior evidence was not limited to cases in which the husband and wife were parties. It extended to all cases in which the question of marriage was in issue. In actions of ejectment, and to recover legacies,-the fact of marriage might be in issue between parties as between whom both husband and wife were competent witnesses, and yet I apprehend it was never held that the evidence by reputation, &c., was incompetent, and the husband or wife required to be produced to prove the marriage. In Doe v. Flemming, (4 Bing. 266,) the plaintiff claimed to recover the premises as heir at law to his brother the person last seised. His father was still alive, and the only evidence of the lessor of the plaintiff having been born in lawful wedlock was the reputation of his parents having lived together as husband and wife. There was a verdict for the plaintiff, and a new trial was moved for, on the ground that though reputation was evidence of marriage in ordinary cases, yet when the plaintiff was to recover as heir at law, when his being such was the sole question to be tried and his father was still alive, direct evidence of the marriage ought to have been furnished. Park, J., said: “The general rule is, that reputation is sufficient evidence of marriage, and a party who seeks to impugn a principle so well established, ought at least to furnish cases in support of his position. As we have heard none, I see no reason for disturbing the verdict.” Best, Ch. J., said: “ The rule has never been doubted. It appeared on the trial that the mother of the [418]*418lessor of the plaintiff was received into society as a respectable woman, and under such circumstances improper conduct ought not to be presumed.” And the rule was refused.
I apprehend that the rule which requires the best evidence to be furnished has no application to the case in the sense in which it is sought to be applied. The best or highest evidence is required in preference to that which is secondary, such as documentary to paroi evidence; that of a subscribing witness to proof of his handwriting. But there is no authority for rejecting circumstantial evidence of a fact because it appears that persons are living who saw or were personally cdgnizant of it. (1 Greenl on Ev. § 82.) In proving or disproving handwriting, it is not essential to call the witness, but evidence of others who are familiar with it may be received. (See also 2 Cowen & Hill’s Notes, 541.) The rule is very well illustrated in the case of The Commonwealth v. James, (1 Pick. 375.) There the defendant was arrested for stealing a quantity of barilla, and it was shown that it was sent by a truckman to his mill, .and after being ground was returned by the same man. The larceny consisted in taking out a portion of the barilla and substituting plaster of paris. Evidence to show the adulteration was given, hut it was insisted that the people should call the truckman, as being the highest evidence. But it was held that it was not necessary to call him; the fact could be proved by others. In cases where the circumstantial evidence is slight and inconclusive, and it appears that there is better evidence within the reach of the party, it is not unusual for the court to reject the inferior and to require the production of the superior evidence. But it seems to me that when the evidence offered is so weak and inconclusive as that the court would be justified in refusing to submit it to the jury, the fact that better evidence was shown to exist would not change the obligation. [419]*419The duty of the court would be to reject it whether other . evidence existed or not.
The plaintiff’s counsel further urges that as the defendant insists upon her marriage as a protection against the performance of what otherwise would be a legal duty, she should furnish the best evidence in her power of the fact. She was required to prove her marriage by legal-evidence— no more, no less. This she was bound to prove when under the former system she pleaded her coverture in abatement, or when it was otherwise admissible as a defense. In Leader v. Barry, (1 Esp. N. P. 353,) the defendant pleaded coverture, and issue was taken upon it. At the trial the marriage was proved by reputation, cohabitation and the recognition of the defendant as the wife of her alleged husband by both his and her friends. Lord Kenyon held the evidence competent, laying down the rule which I have already referred to, that it is only in crirn. con. and bigamy that direct proof of marriage must be given ; in all other cases it may be shown by reputation, &c. (Kay v. Duchess de Pienne, 3 Campb. 123. Read v. Passer, 1 Esp. N. P. 213.) In Rex v. James and Sarah Hassall, (12 Eng. Com. L. 207,) the defendants were indicted for larceny, Sarah as a single woman. She set up her marriage by way of defense, and it was held the marriage might be proved by cohabitation, &c. (See note to same case, page 661, and note on page 78 of same volume.)
It is urged that inasmuch as the wife was admissible in this case she ought to have been produced. This is on the idea that the legislature, in altering the law as to the competency of witnesses, has changed the rules of evidence, so as to exclude evidence once receivable, because a witness once incompetent, and who is better acquainted with the facts, is now competent. I know of no authority for any such proposition; nor do I believe there is any principle on which to sustain it. The admissions of parties were always receivable. Should they be excluded now [420]*420because they may be used as witnesses ? Shall we reject the opinion of an expert as to handwriting because the writer himself is competent.
[Oswego General Term,
July 8, 1862.
Mullin, Morgan and Bacon, Justices.]
I entertain no doubt but that the marriage might be proved by the evidence offered at the trial. It was therefore improperly rejected, and the judgment must be reversed and a new trial ordered; costs to abide the event.
Hew trial granted.