Sharon v. Hill

26 F. 337, 11 Sawy. 290, 1885 U.S. App. LEXIS 2397

Opinions

Deady, <T.

This suit was commenced on October 3, 1883, to have a certain alleged declaration of marriage between the plaintiff and defendant declared to be false and fraudulent, and delivered up to be canceled and annulled, and to enjoin the defendant from the use thereof. It is alleged in the bill that the plaintiff is a citizen of Nevada, and the defendant a citizen of California; that the plaintiff lias never been the husband of any woman but one, who died in 1875, leaving three children, the issue of said marriage, and that he is possessed of a large fortune, and has a large business and social connection; that the defendant is an unmarried woman, of about 30 years of age, who has resided i'n the city of San Francisco for some years, and within two months past has publicly claimed and pretended to be the wife of the plaintiff, to whom she alleges she was duly married on August 25, 1880, in San Francisco, by means of a joint declaration of marriage, made in conformity to section 75 of the Civil Code of California; that said claim and pretense are wholly false and untrue, and are made by the defendant for the purpose of obtaining credit and support at the expense of the plaintiff, and to obtain money from him, or, in case of his death, from his heirs, to quiet the same ; that the defendant now claims to have said declaration in her possession, but the plaintiff never saw or heard of it until within a month past, and is informed that it is substantially as herein set forth; and that the same is false and forged, and null and void, and ought, as against the plaintiff,-to be so declared, and delivered up to be canceled and annulled. On December 3, 1883, the defendant demurred to the bill for want of equity, and on March 3, 1884, the court (Sawyer and Sabin, JJ.) gave judgment overruling the demurrer, on the ground that the instrument, if false or forged, might be hereafter used to maintain a false claim to an interest in the plaintiff’s property at a distance of time when the proof of its fraudulent character was unattainable. 10 Sawy. 48, and 20 Fed. Rep. 1.

On April 24,1884, the defendant pleaded in abatement of the suit: (1) Another suit pending in the superior court of the state, between the same parties, commenced on November 1,1883, by the defendant for a divorce from a marriage with the plaintiff, by means of said declaration, and the subsequent cohabitation of the parties thereto, until November, 1881, on the ground of adultery and desertion by the plaintiff, which suit was, on November 20,1883, removed to this court on the petition of the plaintiff, and afterwards, on December 31, 1883, in pursuance of the stipulation of the parties, was remanded to said state court, and that said suit was then on trial therein on the question of whether the plaintiff and defendant are husband and wife, by reason óf said declaration and cohabitation;1 and (2) the court has no jurisdiction of the matters set forth in the bill herein, because the plaintiff is a resident and citizen of California. To this the plaintiff, on May 5,1884, replied that he ought not to be “barred” from the relief prayed for, by reason of the matters set forth in the plea, and that it is not true that he is a citizen of California. Oh October 16,1884, the. three months allowed by equity rule 69 for taking evidence on the'issue made on the'plea having expired, the cause was regularly brought on for hearing on the bill, plea, and replication, when the court (Sawyer, J.) gave .judgment for the plaintiff, overruling the'píeaj'with leave to'the defendant to answer to the merits within 30 days. The court, after calling attention to the fact that the plea was bad for duplicity, said, in substance, admitting the allegations concerning the pendency of the suit in the state court, it did not appear that they were for the same purpose or relief; and, if they were, the plea was so far insufficient, because the two suits were pending in courts of different jurisdictions; 'and, there being no proof in support of any allegation in the plea, it was overruled. 10 Sawy. 394, and 22 Fed. Rep. ‘28.

On December 30, 1884, the defendant answered the bill, denying that she is an unmarried woman; that the plaintiff is a citizen of Nevada, and averring that he is a citizen of California; that plaintiff never was the husband of any person but his deceased wife, and that ho was unmarried at the filing of the bill; that defendant’s claim to be the wife of the plaintiff is false, or made for any purpose but to obtain recognition and support as his wife, and admitting that she had made such claim for the past 15 months; that defendant was never the wife of the plaintiff, or that said declaration is null and void or false and forged; and avers that the parties were married on August 25,1880, and that said declaration is valid and genuine. The answer also contains what is styled therein “a further and separate answer and defense,” to the effect that “the plaintiff ought not to be permitted to prosecute this suit,” because on August 25, 1880, the parties, by agreement, became husband and wife, and “assumed towards each other that relation,” but said marriage not being solemnized as provided i'n section 70 of the Civil Code of California, the plaintiff and defendant on said day jointly made a declaration of marriage, as set forth in the bill, and thereafter, until November, 1881, cohabited together as husband and wife, when the plaintiff refused to recognize said marriage, and deserted the defendant; that on November 1, 1883, the defendant, as Sarah Althea Sharon, commenced an action against the plaintiff, in the superior court of San Francisco, for divorce, and that “the allegations of marriage in the complaint” therein “were principally founded upon said declaration of marriage.” The answer then sets forth in extenuó the removal of such action to this court, and the remanding of the same, in pursuance of the stipulation as aforesaid, and then proceeds: That by the stipulation of the parties such action was assigned to department 2 of said superior court for trial before a judge thereof, without a jury, and the same was so tried between March 10 and September 17,1884; that thereafter, on December 24, 1884, said judge found and decided (1) that the parties to such action w.ere, and had been since August 25, 1880, husband and wife; (2) that said declaration of marriage is “true and genuine,” and was signed by the defendant therein, and that said parties had cohabited together as husband and wife; and (3) that the defendant had deserted the plaintiff, and the latter was entitled to a divorce and a division of the common property. Wherefore, it is averred that the question of the “genuineness” of said declaration, which is now sought to be tried in this suit, is the same question that was adjudged and determined in said superior court, and lias therefore “become res acljudicata as between” the parties hereto.

On January 2, 1885, the general replication was filed to this answer, and on February 5th the defendant filed a supplemental answer, alleging that since the filing of the former answer said superior court had filed its findings and decree, wherein it is adjudged that said declaration is a genuine contract of marriage between the parties hereto, and said parties thereby became husband and wife. Subsequently the defendant in Sharon v. Sharon duly took an appeal from the judgment therein, and gave notice of a motion for a new trial, both of which proceedings are still pending and undetermined.

The evidence was taken orally before an examiner of the court during the period between February 5 and August 11, 1885, and covers 1,731 pages of legal-cap, written with a type-writer. Besides this, 'there are a large number of exhibits, consisting of enlarged drawings or tracings of the disputed writings, and particular parts and peculiarities of them, and of the admitted writings of the parties, together with a large number of bank-cheeks containing the plaintiff’s signature; and photographic copies of the declaration; five letters alleged to have been written by the plaintiff to the defendant, and known as the “Dear Wife” letters; a letter from the plaintiff to S. F. Thorn, dated October 16, 1880; four letters written by the defendant to the plaintiff during the years 1881 and 1882; and a letter to the plaintiff written in 1882, and signed “Miss Brackett,” besides tracings and other writings of third persons.

The plaintiff having testified on the first day of the examination .that the declaration was false and forged, an effort was then made by the plaintiff to have the defendant produce the same before the examiner for inspection by the expert witnesses of the plaintiff, which she evaded doing until February 25th, when she was compelled to do so by the order of the court; and on March 16th, in pursuance of a like order, she produced three of the five “Dear Wife” letters, known as Exhibits 11, 13, and 37, which declaration and letters were examined by Dr. Piper for the plaintiff, and drawings made of the same with the aid of a microscope, from time to time thereafter, in the presence of the examiner, until March 19th, when the defendant, in disregard of the order of the court, and on contumacious, frivolous, and contradictory pretexts,.refused to allow a particle of ink to be taken from either of them for examination by the expert under the microscope, so as to ascertain the character and kind of the same, and particularly that used in writing the declaration, which the defendant alleges was written in the plaintiff s office; or to produce said declaration, or any of said five letters, on the hearing in court, for examination by the judges, except the ones known as Exhibits 16 and 37, which were submitted to the court near the close of the hearing for the purpose of determining a comparatively immaterial question relative to the testimony of one of the expert witnesses of the plaintiff. Nor did she produce any of such writings before the examiner after March 19th, although their production was thereafter repeatedly and specially demanded by the plaintiff for the inspection of others of his expert witnesses, and particularly to enable counsel effectually to cross-examine the witnesses of the defendant who swore to their genuineness from a private inspection of them, made out of court while they were in her exclusive possession and control. See 10 Sawy. 635, 666, and 23 Fed. Rep. 353. In considering the question of the genuineness of these writings, weight must be given to the fact of the defendant’s refusal to submit them to the tests and criticism which he law properly allows, as a means of ascertaining the truth thereabout. 2 Whart. Ev. §§ 1266, 1267. The defendant alleges in her answer that this declaration is genuine, and in her testimony she swears that the letters are of the same character, while on the hearing of the cause she refuses to submit them to the criticism of counsel and the inspection of the court. This singular conduct can only be interpreted as an admission that such inspection would tend to prove their falsity. '

Notwithstanding the plea in abatement was overruled, the defendant in her answer formally denies that the plaintiff is a citizen of Nevada, and repeats the allegation that he is a citizen of California; and on the examination took testimony in support thereof, including the cross-examination of the plaintiff; and on the hearing, counsel insisted on again raising the question, and having it determined cle novo, on the pleadings and testimony now before the court. But the court declined to reconsider the question or to hear argument on the subject, for the following reasons: (1) In the due and orderly course of proceeding in the case, the question was made and disposed of on the plea to the jurisdiction ; (2) no attempt was made to obtain a rehearing on the plea, or to take evidence in support of it, but the action of the court in overruling it was acquiesced in, and the case proceeded with on the theory that, for the purposes of this suit, at least in this court, the question of the citizenship of the plaintiff was settled; and (3) because, in my judgment, the ruling and action of the circuit judge in the premises was in all respects legal and right.

But on the argument counsel also called attention to the evidence taken by the defendant on this point, and insisted that the same was contradictory of the plaintiffs testimony, and so far affected his credibility unfavorably. A witness may be discredited by showing that on a former occasion he made a statement inconsistent with his testimony in the case on trial, provided such statement is material. 1 Whart. Ev. § 557. But the contradiction by one witness of the statement of another does not necessarily impeach or affect the credibility of either. Tlio contradiction may arise from mistake, ignorance, want of memory, difference of opinion, or other cause consistent with the integrity of both witnesses. So, in this case, admitting that there are conflicting or contradictory statements in the evidence on the subject of the plaintiff’s citizenship, it does not follow that his testimony is untrue, or that he is at all discredited thereby. Of course, if the court finds that any witness has willfully or even recklessly sworn to an untruth, it will apply the maxim, falsas in uno, fabus in omnibus, and treat him accordingly; but the mere fact that the witness is contradicted, does not impeach or discredit him, and the effect may be to discredit the contradicting witness. But there is nothing in the evidence taken by the defendant that contradicts or impugns the statement of the plaintiff that he is and has been a citizen of the state of Nevada since 1864.

“Citizenship” and “residence,” as has often been declared by the courts, are not convertible terms. Parker v. Overman, 18 How. 141; Robertson v. Cease, 97 U. S. 648; Grace v. American Cent. Ins. Co., 109 U. S. 283; S. C. 3 Sup. Ct. Rep. 207; Prentiss v. Barton, 1 Brock. 389. Citizenship is a status or condition, and is the result of both act and intent. An adult person cannot become a citizen of a state by simply intending to, nor does any one become such citizen by mere residence. The residence and the intent must co-exist and correspond; and though, under ordinary circumstances, the former may be sufficient evidence of the latter, it is not conclusive, and the contrary may always be shown; and when the question of citizenship turns on the intention with which a person has resided in a particular state, his own testimony, under ordinary circumstances, is entitled to great weight on the point. -

In this case, the plaintiff, admitting his residence in San Francisco for the greater portion of the time for some years before the commencement of this suit, swears that he never intended to become a citizen of California or cease to be a citizen of Nevada. It is admitted that in 1864 he removed from California to Nevada, and became a citizen thereof, and that in 1873 his family, after a short sojourn in Europe, took up their residence in San Francisco; that, in 1875, he was elected United States senator from Nevada, and his wife died, since when he has lived at the Palace, in this city, the greater portion of the time; and that he has large business interests and property in both California and Nevada. But it also appears that in 1880 he was seeking a re-election to the senate from the state of Nevada, and that he has never registered, voted, sought, or held any office, or claimed or exercised any political right or privilege, in this state since his removal to Nevada in 1864. In all these respects his conduct squares with and strongly corroborates his testimony as to the intention with which he had resided in this state. Nor do the statements made by him as a witness in Boland v. Sharon show anything to the contrary of this. That was a suit in a justice’s court in this city, commenced on June 22, 1877, on an open account for brokerage alleged to have been earned by the assignor of Boland, on September 9, 1873. To avoid the defense of the lapse of time there was an allegation in the complaint that Sharon was absent from the state for more than two years between these dates. On the trial Sharon testified in effect that he was not absent from the state for that time during that period, and judgment was given in his favor. And if Sharon had been a citizen of New York, or an English subject, commorant in San Francisco for the same period, he might truthfully have made the same statement. His citizenship was not involved in the question, and the only matter in dispute was the simple fact whether he was personally present in the state any two years between September 9, 1873 and June 22, 1877, so that he could have been personally served with process therein.

The evidence only proves that the plaintiff was generally an inhabitant of this city for a few years before the commencement of this suit. But when we consider that the plaintiff swears positively that he never intended to become a citizen of this state, and that no act of his while here is inconsistent with such purpose; and when we consider further that Nevada is and has been a favorite mining ground for California capitalists and operators, and that San Francisco is the business and social center of the one state as much as the other, —the mere fact of the plaintiff’s bodily presence here, for one or ten years, under the circumstances, is of very little' moment in determining his citizenship. Many citizens of Connecticut and New Jersey doubtless do business in New York, the great commercial and social center of that region, and practically reside there, but without becoming citizens of the state, for the reason that they are not there with any such purpose or intention.

Nor, in my judgment, is this well-established rule materially modified by -section 1 of the fourteenth amendment, the first clause of which declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Prior to the adoption of this amendment, strictly speaking, there were no citizens of the United States, but only of some one of them. Congress had the power “to establish an uniform rule of naturalization,” hut not the power to make a naturalized alien a citizen of any state. But the states generally provided that such persons might, on sufficient residence therein, become citizens thereof, and then the courts held, ab convenient, rather than otherwise, that they became ipso facto citizens of the United States. Story, Cont. § 1693; Prentiss v. Barton, 1 Brock. 391. But the amendment declares the law positively on the subject, and reverses this order of procedure, by making citizenship of a state consequent on citizenship of the United States; for, having declared what persons are citizens of the United States, it does not stop there, and leave it in the power of a state to exclude any such person who may reside therein from its citizenship, but adds, “and such persons, shall also be citizens of the state wherein they reside.” But, certainly, it was not the intention of the amendment to make any citizen of the United States a citizen of any particular state against bis will, in which the exigencies of his business, his social relations or obligations, or other cause, might require his presence for a greater or less length of time, without any intention on his part to become such citizen.

The better opinion seems to be that a citizen of the United States is, under the-amendment, -prima facie a citizen of the state wherein he resides, and cannot arbitrarily be excluded therefrom by such state, but that' he does not become a citizen of the stale against his will, and contrary to his purpose and intention to retain an already acquired citizenship elsewhere. The amendment is a restraint on the power of the state, but not on the right of the person to choose and maintain his citizenship or domicile; but it protects him in the exercise of that right by making him a citizen of that state in which he may choose to reside with such intention. In Robertson v. Cease, 97 U. S. 648, the court held that, for the purpose of giving jurisdiction to the circuit court, an allegation that a party is a resident of a particular state is not equivalent to an allegation that he is a citizen thereof, for the reason, as suggested by Mr. Justice Harlan, that, even under the amendment, mere residence in a state does not necessarily or conclusively prove one to be a citizen thereof. And if an allegation of residence in a state is not necessarily, even under the amendment, the equivalent of an allegation of citizenship, then the mere fact of residence in a state is not necessarily the equivalent of citizenship.

One other question remains to be disposed of before passing to the consideration of the genuineness of the alleged declaration of marriage, and that is the effect of the finding and adjudication of the superior court in Sharon v. Sharon. At the first blush I was of the impression that this suit having been first commenced, neither the right to maintain it, nor the determination of any question involved therein, could be affected by any finding or judgment in the case of Sharon v. Sharon. But on further reflection and examination of the authorities I am satisfied that the law is otherwise as to the effect of the finding or judgment. It matters not in which suit the subject of the controversy or any question involved therein is first determined, the result may be set up as a bar or estoppel, as the case may be, against the further litigation of the same matter in the other. The maxim, interest reipublicce ut sit-finis litimn, equally applies. See Bellinger v. Craigue, 31 Barb. 534; Gates v. Preston, 41 N. Y. 113; Casebeer v. Mowry, 55 Pa. St. 419.

A judgment on the merits in an action on a claim or demand is a bar to another action thereon between the same parties or their privies, and concludes them as to all matters which appear on the face of the judgment to have been determined, or which were actually and necessarily included therein, or necessary thereto. Code Civ. Proc. § 1911; but where the actions are not on the same claim or demand, a judgment in the one is only an estoppel in the other as to a matter involved therein and actually found and determined thereby. Outram v. Morewood, 3 East, 346; Cromwell v. County of Sac, 94 U. S. 351; Davis v. Brown, Id. 427.

This suit and the action of Sharon v. Sharon are not brought on the same claim or demand. The subject-matter and the relief sought are not identical. This suit is brought to cancel and annul an alleged false and forged writing, and enjoin the use of it by the defendant to the prejudice and injury of the plaintiff, while the other is brought to establish the validity of said writing as a declaration of marriage, as well as the marriage itself, and also to procure a dissolution thereof, and for a division of the common property, and for alimony. But the validity and genuineness of this declaration of marriage were directly involved in the action of Sharon v. Sharon, and determined in favor of'the same by the finding and judgment therein. The plaintiff is therefore estopped to show the contrary in this suit, unless the effect of that judgment, as an estoppel in this case, has been obviated by the appeal therefrom to the supreme court, and the pending motion for a new trial.

There is some confusion and contradiction in the language and ruling of the authorities on this point. But this arises largely from the fact that the difference in the original mode and effect of reviewing a judgment in an action at law, and the decree of a court proceeding according to the civil law, as a court of chancery or admiralty, is often, latterly, overlooked. A judgment in an action at law could only be reversed and annulled for error appearing on its face. For this purpose a writ of error issued out of the court above, to bring up the record for examination. This was considered a new action to annul and set aside the judgment of the court below; and if the writ was seasonably sued out and bail put into the action, it was a supersedeas, so far as to prevent an execution from issuing on tlie judgment, pending the writ of error, but left it otherwise in full force between the patties, either as a ground of action, a bar, or an estoppel. 2 Bac. Abr. 87; 3 Black, 406; Railway Co. v. Twombly, 100 U. S. 81. But in the equity and admiralty courts the remedy for an erroneous decree is an appeal, which removes the whole case into the court above, for trial de novo. There is no decree left In the lower court, and, pending the hearing on appeal, there is no decree in the case, and there can be no estoppel by reason thereof. The tendency during the past half century has been to assimilate proceedings in equity and law cases, and in the states where the modern code prevails, the proceeding by which a judgment is reviewed in the appellate court is generally known as an appeal, although in effect it is more like a writ of error than an appeal. " .

In this condition of things, the courts of some of the states have held that the effect of an appeal in any case is to suspend the judgment appealed from for all purposes; and that, pending the appeal, or during the time in which one may be taken, the judgment is neither a bar nor an estoppel. In others, the courts have regarded the appeal, in cases where the power of the apellate court is confined to the affirmation, modification, or reversal of the judgment, according to the facts found or the things done, as appears from the record, as a mere proceeding for the correction of errors, and have therefore held that the judgment of the court below is in the mean time in full force as a bar or estoppel. Such was the ruling in Bank of North America v. Wheeler, 28 Conn. 433, in which the court said:

“If the appeal is in the nature of a writ of error, and only carries up the case to the court of appeals as an appellate court for the correction of errors which may have intervened in the trial of the ease in the court below, and for its adjudication upon the question whether the judgment appealed from should be affirmed, reversed, or modified, and that court has no other powers or duties than to affirm, reverse, or modify that judgment, or remit the case to the inferior tribunal that it may conform its judgment to that of the appellate tribunal, then such appeal * * * does not vacate or suspend the judgment appealed from; and the removal of the case to the appellate court would no more bar an action on the judgment than the pendency of a writ of error at common law, when that was the proper mode of correcting errors which may have occurred in the inferior tribunal. That such an acti'on would not be bound by the pendency of such a proceeding is well settled. The judgment below is only voidable.”

This case is cited and followed in Rogers v. Hatch, 8 Nev. 35, and Cain v. Williams, 16 Nev. 426. But the law of California on this subject is the law by which this court must be governed. By the act of 1790, (1 St. 122; Rev. St. § 905,) congress provided that “the records and judicial proceedings” of the state courts “shall have such faith and credit given to them in every court withm ijhe United States as they have by law or usage in the courts of the state from which they are taken.”

The judgment in Sharon v. Sharon can have no other effect in this court, as an estoppel, than it would have in a court of the state under like circumstances. Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheat. 234; Thompson v. Whitman, 18 Wall. 457; Bigelow, Estop. 29, note 1. By section 946 of the Code of Civil Procedure, it is provided that an appeal “stays all further proceedings in the court below on the judgment * * * appealed from.” This, in effect, makes the appeal, like a writ of error, a supersedeas, and prevents the enforcement of the judgment by execution, pending the appeal, but nothing more. But section 1049 of the Code goes further, and provides: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until after the time for an appeal has passed, unless the judgment is sooner satisfied.” The effect of this provision appears to be that the judgment in the court below is only a step in the proceeding to a final judgment in the appellate court in case of an appeal, and otherwise to hold it in suspense as a ground of action or defense in another suit, until the time for taking an appeal has passed.

But these provisions of the Code are merely the codification of the law as declared by tlie supreme court of the state under tlie old practice act, according to which an appeal from a judgment not only stays its execution, but suspends its operation for all purposes. See Knowles v. Inches, 12 Cal. 215; Woodbury v. Bowman, 13 Cal. 634; McGarrahan v. Maxwell, 28 Cal. 91; Freem. Judgm. § 328. And in Murray v. Green, 64 Cal. 369, this rule has been followed since the enactment of the Code. In the leading case of Woodbury v. Bowman, which is cited and followed in the latest one, (Murray v. Green,) the opinion of the court was delivered by the senior counsel for the defendant. In speaking of the rejection of a judgment roll in a case then ponding on appeal, when offered in evidence in the case under consideration, he says: “We think it was properly rejected. The appeal having suspended the operation of the judgment for all purposes, it was not evidence in the question at issue, even between the parties to it.” It follows that the plaintiff is not estopped by the finding and judgment of the superior court in Sharon v. Sharon, to allege and prove in this case that the declaration of marriage is false and forged.

The junior counsel for the defendant made the point on the argument tli at the plaintiff was in some way estopped to try this question in this case or in this court, because, forsooth, he had consented that the case of Sharon v. Sharon might be remanded to the superior court, and also that it might be assigned to a particular department thereof, and tried by a particular judge therein, without jury. But how such a simple matter could have such a serious effect is not apparent, and counsel does not make it so; and, certainly, a mere consent to a matter of procedure in a case cannot have the effect to bind the party thereto never to litigate any question involved therein in any other case or court. As a matter of public policy, founded on a sense of justice and convenience, a party is bound by the result of litigation to which he is a party, and not because any of the intermediate steps in the proceeding, as the number of the jury or the judge before whom it was tried, were taken with his consent; and, indeed, a judgment by consent is no more binding on the defendant than one regularly obtained against his will. Consent to the entry of a judgment, or any step leading thereto, gives no qieculiar or additional force or effect to the result. It is still a judgment, and nothing more.

This disposes of all the collateral and preliminary questions made on tlie argument by counsel for the defendant, except an objection to sundry portions of the plaintiff’s evidence for irrelevancy, which needs no special notice.

Is the alleged declaration of marriage a genuine instrument, or a falso and forged one ? is the principal question in this case; and I proceed to dispose of it as briefly as possible. Closely related to this, however, is the question of the genuineness of the five “Bear Wife” letters. Originally, they all came from the possession of the defendant, and if either the declaration or the letters appear genuine it is a convincing circumstance in favor of the other, and vice versa. The evidence on this point includes the testimony of experts in handwriting, persons more or less familiar with the plaintiff’s writing, witnesses to tide existence of the declaration and letters as far back as the fall of 1881, the acts and declarations of the parties during the alleged existence of these documents, and their testimony given in this ease.

Many of the witnesses testified in the case of Sharon v. Sharon, and some of them were cross-examined at great length concerning the testimony they gave there. Some of the collateral matters that were prominent .topics in that case were omitted in this; for instance, the grave-yard charm, the visits to fortune tellers to get devices to influence the affections of the plaintiff to the defendant, and practices resorted to by her to that end. Nor was there any evidence in the ease tending to show that the plaintiff ever introduced the defendant to any member of his family, or that she was present at the reception given at Belmont by the plaintiff to his daughter Flora, on the occasion of her marriage with Sir Thomas Hesketh; nor did the plaintiff testify as to the nature of his relation with the defendant, further than to deny the genuineness of the declaration, or that she was ever his wife, or ever recognized as such in any way or at any time.

I have carefully considered all the evidence, but it is unnecessary, if not impossible, to speak of it in detail. And, first, the undisputed and undoubted facts of the case are briefly these: The plaintiff is and has been for years a prominent and well-known person on this coast. He was born in 1821, and came to California in 1849, and has been in business in this state and Nevada ever since, where he has acquired a fortune that he modestly estimates at $5,000,000. Early in the 50’s he married Miss Mary Ann Malloy, in this city. She died in 1875, leaving a son and two daughters, one of whom has since died, leaving three children, and the other is married in England, and the mother of two children. The son is living, and 29 years of age. Since the death of his wife the plaintiff has lived ostensibly as a widower, in rooms at the Palace, of which he is the proprietor. He is considered a shrewd, active, intelligent, and courageous man of the world, with a liking for public affairs, and between 1875 and 1881 was United States senator from Nevada. In his composition there appears to be a vein of sentiment and love of pleasure that has led him into illicit relations with the other sex, and given him the reputation of a libertine.

The defendant appears to be an attractive woman of about 32 years of age, but she is not certain as to the year of her birth. She was born in Missouri, and lost her parents, as I infer, when she was quite young. 'She went to school at a convent for some time, but she cannot state how long. She came to this state in 1871, where she has relatives, with her brother, and lived with them for eighteen months or two years. From 1873 to 1775 she lived at the Grand Hotel with her brother, after which she lived some time with a relative. Then she kept house for a time with her brother, when she returned to tlie Grand, where she remained until the opening of the Baldwin, in 1877, when she removed thither. In tlie spring of 1880 she went to live at the Galindo Hotel, in Oakland, and returned to the Baldwin after the burning of the Galindo, early in September of the same year, but removed to the Grand about the last of the same month, where she remained until December 6, 1881, when she was expelled therefrom by order of the plaintiff. The Grand has been owned by the plaintiff since prior to 1880, and is connected with the Palace by a bridge across the street which separates them.

Not much light is thrown by the evidence upon the defendant’s occupation or associations during these 10 years. She appears to have received some thousands of dollars from her guardian in Missouri, which I infer came from her mother’s estate. Between 1878 and 1880 she was engaged in stock speculations. In 1878-79 her account at the Bank of California showed cash deposits to her credit of over $16,000, of which sum only $11 was left to her credit in February, 1880, and she ow'ed a bill at the Baldwin of $339. During the latter part of this 10 years she had a serious love affair with a prominent lawyer of Ban Francisco, which culminated on May 10,1880, in an attempt to commit suicide in his office by taking poison, from the fatal 'effect of which she was only saved by the prompt use of the stomach-pump.

Some time in 1880, and after May 10th, she made the acquaintance of the plaintiff in some casual way on the street or in the Bank of California, as a large stock dealer, which resulted in his calling on her at the Baldwin, and she calling at his office over the bank, though it is not at all certain, even from the testimony of the defendant, which called first. On September 25, 1880, tlie plaintiff sent her a note from the Palace to the Baldwin asking for a meeting with her elsewhere than at the latter place. So far as appears, this is the first written communication that ever passed between tlie parties; and she swears that the plaintiff sent her two other notes of like import on the same day. The following is a copy of the only one produced;

[Exhibit 21. J

“San Franoisco, September 25, 1880.

"My Dear Miss Hill: Can you meet me this evening, say about live o’clock, in the parlors of the Grand Hotel? Something I want to toll you of interest to yourself. Will not do to meet you at the Baldwin; so, if you cannot seo me at the Grand, name place and hour.

“Very truly, Wm. Siiaron.”

On September 29th the defendant, at the request of the plaintiff, went to the Grand to live, whore she was known as Miss Hill, tlie plaintiff paying her a stipend of about $500 a month, and allowing her to visit his rooms in the Palace privately, and occasionally inviting her there to take a meal with him. On December 5, 1880, the defendant wrote and the plaintiff signed and delivered to her an agreement, of which the following is a copy: “100 shares of Bel-cher, held for Miss Hill, at 200 dollars a share, to be paid on delivery. W. SharoN. December 5, 1880.” Some time in the fall of 1881 the plaintiff accused the defendant of purloining some of his Belcher mine papers, and revealing his business secrets and private affairs to other persons, which she denied at the time, but now admits that after she left the Grand she found the papers in one of her trunks, and that she has not returned them. For this and other reasons, the plaintiff appears to have been desirous of terminating his relations with the defendant; and accordingly, on November 7th, he effected an arrangement with her by which, in consideration of a receipt in fall of all demands, and a promise not to trouble him any more, he gave her the sum of. $7,500, as follows: Cash, $3,000; by note payable August 1, 1882, $1,500; and by an agreement to pay her $250 a month during the year 1883.

On November 19th, the business manager of the Grand Hotel, by direction of the plaintiff, sent the defendant the following note:

“Miss S. A. Hill — Dear Madam: As we wdsh.to otherwise occupy room 208 on December 1st, prox., you will please select another residence, and give up possession on that date, and much oblige

“Yours, S. F. TiioeN.”

The defendant did not vacate the room as required, and on December 5th the door was taken off the hinges; but at her request she was permitted to stay until the next morning, when, still not making any movement to leave, the carpets were taken up, and she was informed by the servants that if she did not go they had orders to put her out, and she left on the evening of December 6th. Between the time of receiving the notice to quit and her final departure from the hotel the defendant wrote three letters to the plaintiff, of which the following are copies:

“Mr. Sharon: I received a letter from Mr. Thorn in regard to my room. Of course I understand it is written by your orders, for no human being can say aught of me except with regard to yourself. Now, Mr. Sharon, you are wronging me; so help me God, you are wronging me. I am no more guilty of what you have accused me than some one who never saw you; and would you, who wished me to come to this house, whom I have been up with nights, and waited on and eared for, and would have done anything to help you, be the one to wrong and injure me? — a man whom the people have placed enough confidence in his honor to put him in the United States senate, to stoop to injure a girl, and one whom he has professed to lone!”

“My Dear Mr. Sharon: I cannot see how you can have any one treat me so, — I, who have always been so good and kind to you. The carpet is all taken up in my hall. The door is taken off and away, and it does,seem to me terrible that it is you who would have it done. I met Mr. Thorn in the hall as I started to come over to see you, apd asked him if he had ordered such a thing done, and he said that I must move out; that it was your -wish. I told him that I had written you a note, when I received yours, and told you if you wished me to go, to send me word, for it was not convenient to get the place I wanted until some time this month. He said that yon had told him to see that I went, so I said no more, hut came over to see you. Oh, senator, dear senator, don’t treat me so! Whilst everyone else is so happy for Christmas, don’t try to make mine so miserable. Hem ember this time last year. You have always been so good; you don’t act so. TSTow let me see you and talk to you. Let me come in after Ki has gone, if you wish, and he to me the same senator again. Don’t be cross to me; please don’t. Or may I see you, if only for a few minutes ? Do reasonable with me, and don’t be unjust. 'You know you are all I have in the world, and a year ago you asked me to come to the Grand. Don’t do things now that will make talk. You know you can lind no fault with mo.. May I see you for a few minutes? and let us talk reasonably about all this. I know you will. I know it is not in your nature to bo so hard to one that has been so much to you, and don’t be unjust. ,Say I may see you.”

“My Dear Mr. Sharon: I have written you two letters, and received no reply, excepting to hear that they have been read and commented upon by others than yourself. I also heard you said you were told that I said T could and would give you trouble. Be too much of a man to listen to such talk, or allow it to give you one moment’s thought. I have never said such a thing, nor have I had such a thought. If no woman ever makes you any trouble until I do you will go down to your grave without the slightest care. No, Mr. Sharon, you have been kind to me. 1 have said I hoped my God would forsake me when I ceased to show my gratitude. I repeat it. I would -not harm one hair of your dear old head, or have you turn one restless night upon your pillow through any act of mine. If you are laboring under a mistake, and not bringing the accusation for the purpose of quarreling with me, the time will come when you will find out how you have wronged me; and 1 believe! you too much of a man at heart not to send for me and acknowledge it to me. But in your anger you are going to the extreme; I mean by calling Thorn, or any of your relatives,' or outsiders, and letting them know your anger, it simply gives them an opportunity of saying ill-natured things of me, which are unnecessary. Mr. Sharon, I have never wronged you by word or act; and were I to stay in this house for a thousand years 1 would never go near your door again until you felt willing to say to mo you knew you had spoken unjustly to me. You once said to me there was no woman who could look you in the face and say: ‘"William Sharon, you have wronged me.’ If that ho the ease, don’t let me be the first to utter the cry. I had hoped to always have your friendship and best will throughout life, and always liave your good advice to guide me, and this unexpected outburst and uncalled for action was undeserved. If you would only look at how absurd and how ridiculous the whole thing is, you surely would act with more wisdom. Why should I do such a thing? What have I to gain by doing so? ITay give me credit for some little sense. I valued your friendship more than all the world. llave I not given up everything and everybody for it? One million dollars would not have tempted me to have risked its loss. I feel humiliated to death that Thorn, or any one, should have it to say I was ordered out of the house. I have a world of pride, and I ask you to at least show me the respect to let Thorn have nothing more to do or say in the affair. I have always been kind to you, and tried to do whatever I could to please you; and I hope, at least, in your unjust anger you will let us apparently pari friends; and don’t do or say anything that could create or make any gossip. Think how you would like one of your daughters treated so. If you have any orders to give, or wish to, make them known in any other way than through your servants or through Thorn. Don’t fight me. I have no desire or wish to in any way be unkind to you. I have said nothing to any one about the letter 1 have received, nor do I even wish to speak to Thom on the subject. You have placed me in a strange position, senator, and all the pride in me rebels against speaking upon the subject.

“As ever, A.”

To these letters the plaintiff vouchsafed no answer.

During the defendant’s residence in the Grand the plaintiff was often absent from the city, and in the early part of 1881 was in Washington city some months; and it was not generally known or understood among the servants and guests of the hotel that she frequented the plaintiff’s rooms, or that she remained there at night. The plaintiff admits that in the fall of 1881 she secreted herself in the plaintiff’s rooms and witnessed him and a woman undress and go to bed together, and that she related the adventure to the seamstress of the hotel and others, with laughter, as something very funny. When the defendant left the Grand she remained in San Francisco, going first to the house of a negro woman, on Mary street, Martha Wilson, and afterwards keeping house, and then boarding at several places. The plaintiff never visited the defendant after she left the hotel, but in the summer of 1882 she appears to have visited him at the- Palace; and in August of that year she wrote him a letter, of which the following is a copy:

“My Bear Senator: Won’t you try and find out what springs those were you were trying to think of to-day, that you said Mr. Main went to, and let me know to-morrow when I see you? And don’t I wish you would make up your mind and go down to them with Nellie and I, wherever they be, on Friday or Saturday. We all could have such nice times out hunting and walking or driving these lovely days, in the country. The jaunt or little recreation would do you worlds of good, and us girls would take the best of care of you, and mind you in everything. I wish we were with you this evening, or you were out here. I am crazy to see Nell try and swallow an egg in champagne. I have not told her of the feat I accomplished in that line, but I am just waiting in hopes of seeing her some day go through the performance. As I told you to-day, I am out to Nellie’s mother’s for a few days, 824 Ellis street. What a lovely evening this is, and how I wish you would surprise us two little lone birds by coming out and taking us for a moonlight drive. But gracious me, it’s too nice to think of; but I really wish you would. ’T would do you good to get out of that stupid old hotel for a little while, and we’d do our best to make you forget all your business cares and go home feeling happy. A. ”

Early in 1883 she went to the Palace to visit the plaintiff, taking with her Nellie Brackett, the “Nellie” of the foregoing letter, a young girl whom she had had about her since the summer of 1882 as a sort of dependent companion; but she was expelled therefrom by his order. Soon after, Nellie Brackett wrote and sent a letter to the plaintiff, which she swears she wrote at the defendant’s dictation; but the latter says Nellie wrote it “out of her own head,” and then told her of it. The following is a copy of the letter:

“Old Sharon: When I first met you I felt quite honored to think I bad on my list of acquaintances a United States senator, but to-day I feel it a double disgrace to know you. If you are a specimen of the men that are honored by the title of rulers of our country, then I must s;iy that I pity America; for a bigger coward or upstart of a gentleman never existed, in my opinion, since last Thursday night. 1 was present with the lady who called on you; and to think of what a coward you must be! Your own conscience would not allow you to see her and politely excuse yourself, but you must send one of your Irish hirelings to do your dirty work. I hope God will punish you with the deepest kind of sorrow, and make your old heart ache and your old head bend. I am one not to wish evil to people generally, but with all my heart I wish it to you. You did her a mean, dirty trick, and tried in every way to disgrace her, — -a motherless, fatherless girl, — because you knew she loaned on you, and was alone in the world; and a few weeks after God took from you your much loved daughter. Be careful that, after this disgraceful outrage of Thursday night upon her, God does not again bring you to grief, or some great misfortune. I hope he will; I hope he will. Instead of trying to hold her up in the world, you have tried every way in the world you can to disgrace her. I should think you would be so ashamed of: yourself that you couldn’t do enough to atone for the wrong you have done her. I love her, and I just líate you. It is well I am not her, or 1 would advertise you from one end of the world to the other. But she feels herself so much of a lady that she too tamely submits to your insults. Why, you are not good enough for mo to wipe my shoes on, much less her. If you knew how insignificant you looked to-day, — although I, a poor girl, and you could ride in your carriage. I feel really so much above you that I ask Mr. JDobinson to take my message rather thaji come in contact with yourself.

“The message of insult which you returned to me by Mr. Dohinson was so farcical that I had to laugh in Mr. Dobinson’s face, and ask: ‘ Don’t you think that man crazy?’ I am a poor girl, but I feel myself so much better than you — you horrible, horrible man. Miss Biiaokhtt.”

No further intercourse or communication is known to have taken place between the parties, and no public declaration or claim concerning the alleged marriage was made, until September 8, 1883, when one William Neilson procured the arrest of the plaintiff on the charge of adultery, alleging that he was the husband of the defendant; and soon after published a “Dear Wife” letter, the original of which has never been produced, and also the alleged declaration of marriage, to cancel which this suit was thereupon brought.

The defendant’s account of the execution of the declaration of marriage, and the intercourse between herself and the plaintiff, which preceded it, is substantially as follows: In the summer of 1880, and before August 25th, by invitation of the plaintiff, she visited him to get points on stocks. During one of these visits the plaintiff proposed to give her @500 a month to let him “love her;” in other words, to he his mistress. She declined the offer, and he raised the sum to $1,000, which she also declined, saying: “Yon are mistaken in the woman. You can get plenty of women that will let you love them for less than that.” With that she rose to depart, saying she would not come any more, when the plaintiff put his back against the door, and said she was mistaken; that he was really in love with her, and wanted to marry her; when she replied : “If that is what you wani we will talk about that.” Nothing more of any moment occurred on this occasion, but whether it was a day or a month before August 25th she is unable to say. However, on that day, she returned to the plaintiffs office, and accepted his proposition of marriage, without any further preliminaries. Then the question arose as to how they should be married. He wanted the marriage secret, as he had a liaison on hand with a woman in Philadelphia, who would make trouble if she heard of it, which might injure his chances for a re-election to the senate from Nevada; and said that under the Civil Code they could marry themselves privately, by the execution of a writing to that effect, to which she appears to have readily assented. Thereupon, at his suggestion, she sat down at his table, and wrote at his dictation, and at one sitting, the alleged declaration of marriage, which he then signed and returned to her, whereupon, without any more ado, they quietly separated, she going to her lodgings at the Galindo Hotel, and he to Virginia, Nevada, where he remained some weeks, without any communication passing between them, until very shortly before the letter of September 25th, which he addressed to her at the Baldwin;, that soon after the receipt of this letter she removed, at the request of the plaintiff, from the Baldwin to the Grand, and continued to live there in room 208, until December, 1881, during which period she was in the habit of visiting the plaintiff in his rooms at the Palace, day and night, and received from him the sum of $500 a month, with which to pay her bills.

On the other hand, the plaintiff swears positively that he never signed the declaration of marriage; that he never saw or heard of it until it was made public in September, 1883; that he was never married to the defendant in any way; that he never addressed her as his wife, in writing or otherwise; and that he never knew or heard that she made any claim to be his wife until that time.

The originals of the declaration and “Dear Wife” and other letters written by the plaintiff to the defendant not being in his possession, and she refusing to produce them and put them in evidence, he was allowed to put in evidence photographic copies thereof, made from the originals when introduced by her in Sharon v. Sharon. The copies of the letters were put in evidence, against the objection of the defendant, for the purpose of showing that the correspondence between the parties was not such as would naturally pass between husband and wife; and, further, for the purpose of showing that the defendant had been guilty of forgery, by changing the address of five of these letters from “My Dear Allie” or “Miss Hill” to “My Dear Wife,” for the purpose of supporting and strengthening her claim that the declaration of marriage is genuine, and was signed by the plaintiff.

The declaration is in the words and figures following:

“In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, Sarah Althea Hill, of the city and county of San Francisco, state of California, age 27 years, do here, in the presence of Almighty God, take Senator William Sharon, of the state of 2s evada, lo be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon, of the state of Nevada. Sabah Althea Hill.

“August 25, 1880, SAN FraNoisqo, Cal.

“I agree not to make known the contents of this paper or its existence for two years, unless Mr. Sharon himself see fit to make it known.

“S. A. Hill.

“In the city and county of Sail Francisco, state of California, on the twenty-fifth day of August, A. JD. 1880, I, Senator William Sharon, of the state of Nevada, age GO years, do hero, in the presence of Almighty God, take Sarah Althea Hill, of. the city of San Francisco, Cal., to be my lawful and wedded wife, and do hero acknowledge myself to be the husband of Sarah Althea Hill. Wm. Siiaiion.

“Nevada, Aug. 25, 1880.”

The following are copies of the five “Dear Wife” letters, the one in ink being first, with the letter to Thorn, referred to therein:

[Exhibit 18.]

“My Bear Wife: In reply to your kind letter, I have written Mr. Thorn, and inclosed same to you, which you can read, and then send it to him in an envelope, and he will not know that you have seen it. Sorry that anything should occur to annoy you, and think the letter will command the kind courtesy you deserve. Am having a very lively and hard fight, but think I shall be victorious in the end. With kindest consideration, believe me,

“Wm. SiiaiioN.”

[Exhibit 88.]

“AGENCY OF THE 1ÍANK OF CALIFORNIA.

“Virginia, Nev., October 16, 1880.

“Mr. Thorn — My JDear Sir: I gave Miss Hill a note to you, and expected the kind consideration for her which she deserves. But it seems you have not been as accomodating as you might be. You will consider my wishes in this, and allow no cause of complaint.

“Very truly, Wm. Sharon.”

[Exhibit 29.]

“fyly Bear Wife: inclosed send you by Ki the balance, two hundred and fifty, which I hope will make you happy. Will call this evening for the joke.

“Yours, S.

“April 1, [1881.]”

[Exhibit 11.]

“My Bear Wife: You have had one hundred and twenty. Then twenty, and before I left one hundred. In all, two hundred and forty, (240.) The balance is just two hundred and sixty, for which find cash inclosed. I am afraid you are getting extravagant. Siiaiion.

“May 5, 1881.”

[Exhibit 16.]

“My Bear Wife: Inclosed find three hundred and ten dollars to pay bills with, etc. W. S.

“August 29, 1881.”

[Exhibit 37.]

“Palace Hotel, SAN Francisoo, October 3,1881.

“My Bear Wife: Inclosed find five hundred and fifty dollars, which will pay expenses until I get better. Will then talk about your eastern trip. Am much better to-day. Hope to be up in three or four days. Truly, S.”

The following are copies of the three other letters in pencil. The first was written near Christmas, 1880, and the other two in the spring of 1881:

“My Dear Allie: Come over and join me in a nice bottle of champagne, ana let us be gay before Christinas. W. ¡S.

“If yon don’t come over and take part in the bottle, I may hurt myself.”

“Palaoe Hotel, SAN FraNoisco, 188 — .

“My Dear A.: Conre and take dinner. Answer.”

“Miss II.: Have ordered a nice dinner, and have a sample bottle of wine want you to try.” '

Bight witnesses were examined as to the genuineness of the signature to the declaration and the “Dear Wife” letters. Three of these —Mr. C. D. Cushman, Mr. Samuel Soule, and Mr. M. Gumpel — were called by the defendant.

Cushman did not speak as an expert, but simply as one having a knowledge of the plaintiff’s handwriting, obtained during some years spent in his employ. His general standing and character are not questioned, but it is claimed, and apparently with good reason, that for some cause he has made himself a very bitter partisan, in this case, of the defendant, from the time it w'as mooted.

Soule is 78 years of age, and professed to speak as an expert, or a “judge of handwriting,” on very slender grounds. His opinion is based on a comparison made out of court with writings not produced or admitted to be the plaintiff’s. Both he and Cushman, on these grounds, testify that the writings in question are genuine, but in my judgment very little weight ought to be given to the opinion of either of them.

Gumpel is a lithographer, and an expert of considerable experience, besides being in some respects a very .remarkable penman. But his relation to the case, and his conduct as a witness therein, are both suspicious and unsatisfactory, and lead me to regard him and his testimony with distrust. On October 16, 1883^ he writes to the attorney of the plaintiff, Mr. Barnes, suggesting that the other side wished to retain him as an expert, but he preferred to be employed by Mr. Barnes, and is anxious to know if he wants him. Afterwards he was retained by the plaintiff as an expert, and examined the disputed writings, prior to the trial of Sharon v. Sharon, so far as he had an opportunity. On the trial of that ease he was not called as a witness by the plaintiff, because, as he says, he had told Mr. Barnes he could do him no good. Thereafter, according to his statement, he met the defendant’s attorney, Mr. Tyler-, on the street, with whom he had not spoken for two years, and against whom he had “a great grudge” on account of some former “bad” treatment, who immediately ran up to him, begged his pardon for the past, and asked him to be a witness on his side of the case. To this the witness replied, “I think you bave a great deal of audacity to speak to me;” and, after some further parley, said: “You know liow to secure the attendance of a witness;” and added, “If you subpoena me in this caso, I give you due warning that I wdll bust your case higher than a kite; look out!” Notwithstanding this friendly warning, which looks as if it was given and received in a Pickwickian sense, Mr. Tyler had the witness subpoenaed, and lie went upon the stand and svrore that the signature to the declaration was genuine, and that the “Dear Wife” letters wore written by the plaintiff, and were not tracings, which testimony he repeated in this case. On his examination in chief the witness was very confident that he could detect any tracings, — said he had done so “at the first glance” in the case of Treadwell v. Bank of California,—but on being asked on cross-examination to say which of plaintiff’s exhibits, 200 and 201, was the tracing, and which was the original, — the one being a letter written by the plaintiff on January 5, 1885, to an expert wdtness, and the other a tracing thereof, made by the latter, — he sulked and would not answer. Said he would if he had a month to examine them in, and the plaintiff would pay him for his time. His opinions on the subject of the writings are mere bald assertions, unsupported by any intelligent or convincing reasons. He first pretended that his “method” was a secret, and spoke of it as something unusual and even occult, that be could not explain. But afterwards he was compelled to admit that he had no special “method,” but simply compared the one writing with another, and came to a conclusion, from their resemblance or dissimilarity, whether they were written by the same person or not. I repeat that I am constrained to regard his connection with the case with suspicion, and his testimony as unsatisfactory, and with distrust. The possibility of his having written the disputed signature himself will be considered further on.

Of the five witnesses called by the plaintiff on this point, Dr. B. M. Piper is the most important. He appears from his own account, and this is corroborated by the work he has done in this ease, to be an expert of celebrity, and a microscopist of experience and distinction. After the trial of Sharon v. Sharon he was employed by the plaintiff to cnme here from Chicago, and give his time and attention to the examination of tlio writings in this ease, without any understanding as to the amount of his compensation, except that it should.be satisfactory, to him. This circumstance has been animadverted on by counsel, and in considering the credit due to his testimony it cannot be overlooked by the court. Upon this arrangement his compensation may be, and in some degree probably is, contingent upon success. But there is nothing very unusual in this; and until experts are nominated by the court and paid by the state, the circumstance of their being retained by the parties must always be considered in estimating the value of their evidence. And in this connection it may also be noticed that Dr. Piper, being a comparative stranger here, was, on cross-examination, very properly asked concerning the antecedent circumstances of his life, and that for some reason be failed to give any account of the same for a period of several years after his majority, and his graduation as a doctor of medicine at Dartmouth College. Dr. Piper’s microscopic work in this case covers a large field. His numerous tables of enlarged drawings or tracings present the characteristics, similarities, and differences of these writings plainly and in detail. "With the aid of the camera lucida he has made drawings of the disputed signature, portions of the “Dear Wife” letters, and the defendant’s letters, the G-umpel imitation of the plaintiff’s signature, and his admitted signature to bank-checks; and of sundry words, letters, and terminals of each, so as to make apparent to ordinary observation any singularity of formation, feature, or proportion that may serve to distinguish or identify either of them. Assuming that his observations and delineations are correct, to the contrary of which nothing appears save the surmises and conjectures of counsel, he has accumulated a great mass of material facts, from which any person of ordinary intelligence and power of observation and deduction' may draw a comparatively safe conclusion as to the question in dispute, so far, at least, as the same can be determined by an inspection of the writings themselves. A peculiarity in the formation of a letter or the manner of writing a word, that, under ordinary circumstances, would not be discerned or apprehended, when magnified several hundred times, becomes as noticeable as the features of the human face. Dr. Piper states that a person, in writing, usually makes his terminals and “t” crossings with less care or consciousness than any other part of the word; from which he deduces the conclusion, and a very plausible one, to say the least of it, that a person engaged in making a tracing of another’s writing is apt to betray himself by lapsing into his own habit or style at these points. The tables of enlarged terminals and “t” crossings, taken from the admitted writings of the parties, show a very marked difference; those of the defendant being blunt or clubbed at the latter end, while those of the plaintiff are generally lighter, and invariably pointed or tapering at the termination. They also show that the terminals and “t” crossings in the “Dear Wife” letters are in this respect very like the defendant’s and unlike the plaintiff’s. On the ^hole, Dr. Piper’s unqualified conclusion is that the signature to the declaration was not written by the plaintiff, and that it was written by the witness G-umpel; and that the “Dear Wife” letter in ink, and, at least, the word “wife” in the other two, known as “Exhibits 11 and 37,” are tracings made by the defendant.

Besides Dr. Piper, the plaintiff called on this point Mr. H. G. Hyde, Mr. E. C. Hopkins, Mr. J. P. Martin, Mr. J. IT. Dobinson, and Mr. E. W. Smith. The latter three are very familiar with the plaintiff’s writing. Mr. Martin was in his employ as book-keeper, cashier, and otherwise, for 10 or 15 years. Mr. Dobinson has been his private secretary since 1876, and Mr. Smith lias been the paying teller of the Bank of California since 1879, during which time he has probably paid hundreds, if not thousands, of the plaintiff’s cheeks. And from their knowledge of the plaintiff’s writing they are decidedly of the opinion that the disputed signature is not his.

Ilopkins has been the keeper of the Spanish archives in the United States surveyor general’s office in this state for the past 30 years, and during that time has been much engaged in studying writings with a view to determining the question of their integrity, and making tracings of Spanish grants and documents. He says that he cannot state positively whether the signature to the declaration is the plaintiff’s or not; but he is certain that it was written there before the body of the instrument was, and that the “Dear Wife” letter in ink is a tracing. Hyde is a well-known and experienced expert. He made the tracing on which Gumpel declined to give an opinion. On the trial of Sharon v. Sharon ho said, without having made any special examination of it, that he thought the signature to the declaration genuine; but now, after a thorough examination of the subject, he says he is certain that it is not genuine; and that the “Dear Wife” letter in ink is a tracing with the word “wife” “built in;” and on this latter point his explanation of the matter is clear and convincing.

After an examination of the face of the instrument under the microscope, both Hyde and Piper are of the opinion that the signature to the declaration is written in different ink from the body of the instrument, and that the latter was written after the paper had been folded, as shown by the spreading and absorption of the ink where the pen crossed a fold; and this is plainly indicated by the enlarged drawings prepared by the latter. On the whole, the expert testimony, both in skill, character, and numbers, preponderates largely in favor of the plaintiff, and proves with as much certainty as such evidence well can that the signature to the declaration is false and forged, and that the “Dear Wife” letter in ink, and, at least, the word “wife” in the others, are tracings mode by the defendant of letters written to her by the plaintiff with the word “wife” substituted for “Miss Hill” or “Allie.” And this conclusion coincides with the impression made on my own mind by the examination of the writings.

The signature to the declaration is a good general imitation of tlio plaintiff’s, and without special observation might easily pass for his. The signature of the plaintiff is generally well marked and uniform, hut often varies in minor particulars. Perhaps none of the hundreds of them offered in evidence is more unlike, the disputed one than the signature on the check of the same date with the declaration. The “a” in the check signature is closed at the top, while in the other it is open; and the lower limb of the “h” in the former leaves the stem at the line, while in the other it returns on the stem, or follows it upwards for some distance. But in other signatures of the plaintiff these differences from the disputed signature do not appear; at least, not so plainly. But in the disputed signature the “S” in “Sharon” is nearly a third longer than the “h,” but no such difference or peculiarity appears in any of the plaintiff’s admitted signatures. On the contrary, the “h” in all of them that I have seen is fully as long, and sometimes longer, than the “S. ” Again, the up-strokes of the “W” in the plaintiff’s signature, and particularly the second one, are uniformly heavier than the down-strokes, while in the disputed one the contrary is the case.

• And besides, and over and above all these particulars, there is a difference in the general effect and appearance of thé signatures that is more readily felt than expressed. One may see at a glance that two pictures, which have a general similarity, are not portraits of the same person, when it might be difficult to give a satisfactory reason for the conclusion. The disputed signature is evidently the work of a skillful penman. The lines are comparatively smooth and steady, while the exact contrary is characteristic of the plaintiff’s writing. Indeed, I very much doubt if he could write such a signature as the one to the declaration.

Who did write this disputed signature, it is not absolutely necessary to decide. So far as the evidence goes, it was not written by the plaintiff, and may have been written by the witness Gumpel. Dr. Piper, speaking as an expert, says he did write it. He denies it; but it may nevertheless have been done by him, not feloniously, but as an idle fancy or aimless experiment. For, whoever wrote it, I think there is nothing in this case more evident and certain than that this signature was not written after this declaration but before it, and therefore with no apparent wrongful intent. In the fall of 1883, and while Gumpel was understood to be in the employ of the plaintiff as an expert, he wrote, from memory, in Capt. Lee’s office, the signature of the plaintiff, with the addenda, “Nevada, Aug. 25, 1880,” ■which is much more like the signature to the declaration than any of the plaintiff’s admitted signatures. And, so far as the genuineness of these disputed writings depends on the testimony of the parties, the preponderance of the evidence is with the plaintiff. In any view of the matter, the testimony of the plaintiff neutralizes that of the defendant. Whatever deductions may be made from his credibility, on account of his participation in this transaction and interest in the result, must also be made from hers, and even more; for, in the very nature of things, this is a game in which the woman has more at stake than the man. And, however unfavorably the plaintiff’s general character for chastity may be affected by the evidence in this case, it must not be forgotten that, as the world goes and is, the sin of incontinence in a man is compatible with the virtue of veracity, while in the case of a woman, common opinion is otherwise. Nor is it intended by this suggestion to palliate the conduct of the plaintiff or excuse the want of chastity in the one sex moro than the other, but only, in estimating the relative value of the oath oí tiiese parties, to give the proper weight to the fact founded on common experience, that incontinence in a man does not usually imply the moral degradation and insensibility that it does in a woman.

And it must also he remembered that the plaintiff is a person of long standing and commanding position in this community, of large fortune and manifold business and social relations, and is therefore so far, and by all that those imply, specially bound to speak the truth, and responsible for the correctness of bis statements; and all this, over and beyond the moral obligation arising from the divine injunction not to bear false witness, or the fear of the penalty attached by human law to the crime of perjury. On the other hand, the defendant is a comparatively obscure and unimportant person, without property or position in the world. Although apparently of respectable birth and lineage, she has deliberately separated herself from her people, and ,selected as her intímalos and confidants doubtful persons from the lower walks of life; and, so far as appears, is only amenable to legal punishment for any false statement that she may make in this case, which ail experience proves is not sufficiently certain to prevent perjury in legal proceedings. And by this nothing more is meant than that, while a poor and obscure person may bo naturally and at lieart as truthful as a rich and prominent one, and even more so, noxortheless, other things being equal, properly and position are in themselves some certain guaranty of truth in their possessor, for the reason, if none other, that he is thereby rendered more liable and vulnerable to attack on account of any public moral delinquency, and lias more to lose if .found or thought guilty thereof than one wholly wanting in those particulars.

.But this is not all. There is much in the testimony of the defendant in this case that must affect her credibility unfavorably. It is full of reckless, improbable, and in some instances undoubtedly false statements. Take this one, for illustration. The story that some time in 1880, and prior to the date of the alleged marriage, she gave the plaintiff §7,500 to invest in stocks for her, is undoubtedly false; and she has attempted to support it, not only by perjury, but by forgery. Perceiving that the payment to her, under the circumstancos, of that large sum, shortly before she left the plaintiff’s hotel, bore upon its face the evidence that it was given to a discarded mistress rather than a deserted wife, she deliberately swore, both in Sharon v. Sharon and in this case, that the transaction was a return to her of that amount which she had put into tlio plaintiff’s hands some 18 months before for investment; and not only that, but slie produced on the trial in the former case, to support her statement, a writing to that effect, purporting to be signed by the plaintiff and witnessed by Nellie Brackett. But when asked, on cross-examination, to produce that paper here, she declined to do so or to answer any question about it. And Nellie Brackett swears that the writing was manufactured by tbe defendant; that she copied the signature of tbe plaintiff from one in an autograph album, and that she witnessed it at the defendant’s request, upon an understanding that it was only to be used -to influence her lawyers, and the defendant afterwards guarreled with her because she would not go on the stand and swear to it. And while it may not be safe to accept any statement on the uncorroborated testimony of this young woman, the innate improbability of the defendant’s story, and her refusal to produce the paper, or answer concerning it, is ample corroboration. And in a suit brought by the defendant against the plaintiff in the superior court, in May, 1884, on the agreement given in part payment of this sum of $7,500 to recover the installments due thereon for October, November, and December, 1883, amounting to $750, it was found by said court, sitting without a jury, that said writing was given to the defendant on November 7, 1881, “in consideration of past illicit intercourse between them,” and also in consideration of a written receipt and promise to the plaintiff by the defendant “to make no further demand upon him, and not further to annoy him in any manner.” And while it is possible that, notwithstanding the falsehood of the defendant in this and other respects, the alleged declaration may be genuine, it must be conceded that neither that fact, nor any circumstance tending to prove the same, can be established by her uncorroborated oath.

Another circumstance strongly contradictory of the defendant’s account of this transaction is the fact that nearly a year after the pretended advance, and before its alleged return, she deliberately obtained from the plaintiff a contract to hold 100 shares of Belcher for her, to be paid for on delivery. Now, if the plaintiff then owed the defendant $7,500, which, according to her account, had also been advanced to him for the very purpose of being invested in stocks, why hold these stocks for payment absolutely? Why not credit her on the contract with the amount due her from the seller, and agree to deliver on payment of the balance of $2,500 ? Or, what would be more natural still, why not deliver her stock at once for the amount due her ? Nor is this transaction, viewed in any light, the kind of intercourse we might expect between a fond old millionaire and his darling young wdfe in the fourth moon of their marriage. It follows that on the testimony of the parties, as well as that of the experts, the decided weight of the evidence is against the genuineness of the declaration and letters.

And now let us see what the evidence is, on the face of these documents, as to. their genuineness or falsity. Of the many circumstances that might be mentioned under this head, a few of the most striking must suffice. The declaration is written on note-paper instead of legal-cap, although written in an office well supplied with stationery for business purposes. It is written on the first half sheet instead of a whole one. It begins at the top line of the second page instead of the first one, and is finished back on the unruled space at the top of the latter. The signature of the plaintiff is on the top line of flie first page, where it might have been written as an autograph or imitation, or even without any purpose; and, considered as a signature to a legal instrument, has the unusual and unmeaning appendage, “Nevada, Aug. 25, 1880;” and this, although that date, and the fact that the alleged signer was of Nevada, was already stated three times in the body of the writing. It is full of verbose formalisms and useless repetitions, and in structure and verbiage is just what might he expected from a stylish, half-educated woman, and is altogether unlike what might be expected from the dictation of a person of experience, brevity, and directness, such as tbe plaintiff appears to be. The last four lines are written much closer than the others, and the words contained in them are crowded together, and two of them abbreviated; and oven then there was barely room for the matter without trenching on the signature, after omitting certain words and parts thereof- — 19 in number — which were used in corresponding and foregoing parts of the instrument. Counsel for the plaintiff has called attention to these omissions in his brief, by inserting them in red ink. Substituting italics for the red ink, the omissions appear as follows: “The presence of Almighty God, take Sarah Althea Hill, of the city and county of San Francisco, siaie of Oali/br-nia, to be my lawful and wedded wife, and do here acknowledge and declare myself lo be the husband of Sarah Althea Hill, of the city and county of San Francisco, slate of California.” Taking common experience and observation in snob matters as a guide, the most satisfactory inference from the facts on the face of the declaration is that the body of it was written after and over the signature. I know it was said on the argument, and there is force in the suggestion, that if the instrument was premeditatedly written over a signature, either genuine or false, in a matter of so much moment as this, the writer would most likely have experimented with the subject until the matter was got into such form and number of words as would conveniently fill the space preceding the signature, without stretching, crowding, or omission. But the conclusion already stated, that the signature was written before the declaration, is by far the most reasonable inference from the evidence afforded by the document itself; and this cannot be overcome or made doubtful by mere plausible conjecture as to what a prudent and skillful person would or might have done under the circumstances; for this is not the first time in whicli persons engaged in an illegal or criminal transaction have strangely or foolishly, as it appears to others after the fact, omitted to take some very simple precaution to prevent detection or failure.

The “Dear Wife” letters have nothing wifely about them except the word “wife” in the address. The four in pencil are short, curt scrawls, announcing the sending of money, presumably on account of her monthly stipend of $500, with a jocular remark or familiar expression added, such as a guardian might write to his ward, or an attorney to liis client. They are dated in different months, and ap-patently relate to monthly payments. The one of April 1st says, “I send you the ‘balance,’ two hundred and fifty dollars;” and the one of May 5th says, “You have had at different times [mentioningthem] two hundred and forty dollars; the ‘balance’ is two hundred and sixty dollars, which find inclosed.” The “balance” of what? Why the/‘balance” of the $500 a month the plaintiff was paying her .on some account. There is not a particle of love or affection in the letters ; not even enough to suggest that she was his mistress. The ink letter is longer and more formal. It was written in reply to one from her soon after she took up her residence in the Grand, in which she had evidently complained that the plaintiff’s manager, Mr. Thorn, had not treated her properly. So far as this complaint was well founded, it probably arose from the fact that the manager suspected she was more than a boarder and less than a wife. But there is nothing wifely in this letter either, except the word “wife” in the address. The writer hopes that the inclosed letter to Mr. Thorn will command the “kind courtesy,” not respect, she deserves, and the letter to Thorn is to the same effect. There is not a particle of love or affection in it from one end to the other. It is such a letter as the plaintiff might have written to Miss Hill, but hardly to his jmung bride of less than two months’ existence. And there are some particular circumstances connected with this ink letter which prove it to be a tracing beyond a doubt.

The plaintiff swears that he wrote the original of the ink letter at the same time that he'wrote the inclosed one to Thorn, at the agency of the Bank of California, in Virginia, and on its paper. The one to Thom, which passed through the hands of the defendant; shows on its face that it was so written. The two letters were practically one transaction with one person, and were inclosed in one envelope to the defendant. Under these circumstances the only reasonable conclusion is that they were both written on the same kind of paper. But it was a difficult and tedious task to trace the lithographic head on this paper, nor is it likely that it was obtainable hero. So the tracing was made on plain paper, and on its face betrays its fraudulent origin, and furnishes another striking instance of .the truth of the proverb, “murder will out.” The photographic copies of the declaration and letters indicate that the originals are worn and soiled, and the witnesses who have seen them say that such is their appearance. But this appearance has been put upon them to give color to the assertion that they are originals of some years’ existence, which have been carried about and seen hard usage, and particularly were not fresh tracings on new paper. Nellie Brackett swears that the soiling and crumpling process was a part of their manufacture; that the defendant wet them with coffee grounds, and ironed them, and held them over the gas, and the like, to give the new smooth paper the appearance of age and use. Ah Sam, the defendant’s Chinese servant, at. Laurel place, gives a very graphic account of the process. He says he lived with her “two Christmases ago,” and saw her with papers in the kitchen, which she put dirt and coffee on to make them look old and yellow, and that he ironed them for her.

The defendant’s answer to this evidence is that she buried the documents for safety in a tin can in the cellar, where, strange to say, they got wet, but whether from the sprinkling of the street or a shower does not appear, and she afterwards ironed them to dry and smooth them. But this does not account for the corners of some of them, and particularly the upper ones of the ink letter, having the appearance of being burned off, as though they had got singed in the gas. And the story indicates that she then had a great deal more concern for the safety of her “papers” than when she left them in a loose roll on the wall behind a picture at Martha Wilson’s; and, taken altogether, it is evidently a weak invention of the defendant’s in support of what she knows to be false and forged writings. And thus one falsehood begets another from- the beginning to the end of this ease.

When compared with the usual and ordinary conduct of married men and women under like circumstances, there is such incongruity and want of harmony between the “Dear Wife” address of these letters, and the general tone and subject-matter of them, that they must be, as the plaintiff insists, and the evidence already considered is sufficient to show, at least in the one instance, the tracings of a genuine letter, with the word “wife” substituted for “Miss Hill” or “Allio,” and in the others genuine letters in which a like substitution has been made.

But the defendant relies largely, in support of her case, on what may he called contemporaneous evidence of the existence of these documents, and her own declarations concerning the same, and her relation with the plaintiff, to third persons, in the nature of res gestee. For instance, she testifies that she told her uncle, Mr. W. B. Sloan, while she was still at the Grand, that she was secretly married to the plaintiff, because ho suspected something wrong, and threatened “to break every bone in Sharon’s body;” and tiiat she subsequently showed him the declaration and letters at Martha Wilson’s house, soon after she left the Grand; that she did not tell her brother, or aunt, Mrs. W. J. Bryan, but did tell her grandmother, Mrs. W. J. Braw-ley, of the marriage, but at what time does not appear. She also testifies that she told Mary E. Pleasant of the marriage while at the Grand, and,s soon after she left that place, showed her the declaration and letters; that she also showed the declaration to Martha Wilson, and read it to her on October 14,1880, and that Yesta Snow was present, and read it at the same time, to whom she also showed tlie letters after she left tlie Grand; and that she showed both declaration and letters to Nellie Brackett early in 1882.

Nellie Brackett first met the defendant in the early part of 1882. She was then about 17 years of age, and the defendant made a sort of a confidant and dependent companion of her. In August, 1882, the defendant went to live at Mrs. Brackett’s, where she remained until the middle of November, when she moved elsewhere, taking Nellie with her, against the wishes of her parents, and keeping her so until near the close of the year 1883, when the quarrel took place on account of the latter’s refusal to swear to the forged receipt, as already stated. On the trial of Sharon v. Sharon she was called as a witness by the defendant, and testified that she had seen the declaration and letters as early as March, 1882; but, on being recalled by the plaintiff, she said her former testimony was false in that respect; and she testifies in this case that she never saw the Sharon letters until June or July, 1883, and there was then no one of them addressed to the plaintiff as “wife,” and she did not see the declaration until some time after that. The defendant testifies that in the summer of 1882 she renewed her friendly relations with the plaintiff, and visited him occasionally at his rooms at the Palace, and that at one of these visits she took Nellie with her, and secreted her at night behind thé bureau in the plaintiff’s room, so that she could see him and her go to bed together, and hear what they 'said and did while there, with a view of having her testify to the same, if need be, — particularly anything that indicated they were married, — as she was afraid the defendant might deny the declaration. Nellie Brackett now testifies that this story is wholly false; that the defendant concocted it in the fall of 1883, and had her learn it by heart, and go on the stand in Sharon v. Sharon and swear to it. For the honor of her sex, I trust she tells the truth about it now; for I would much quicker and rather believe that the defendant was wicked enough to commit perjury than that she or any other woman was vile enough to do such a dirty thing with this young girl. - '

Martha Wilson is a poor, nervous little negro woman, born a slave-, who can neither read'nor write. While the defendant was at the Grand she employed her occasionally as a seamstress, and had breakfasts from her restaurant. The defendant made much of her, and sought refuge in her .house when she was expelled from the Grand, and Was there off and on for some time. On. the trial of Sharon v. Sharon she swore, when called by the defendant, that the declaration was shown and read to her by the defendant and Yesta Snow at her house on Mary street, on October 14,1880, when the defendant called for her to go with her to the furniture factory to obtain some special articles for her rooms at the Grand on the written order of the plaintiff of that date; and the testimony of the defendant and Yesta Snow is to the same effect in this case. But Martha Wilson, being recalled by the plaintiff in Sharon v. Sharon, testified that she never saw or heard anything of the kind until late in the fall of 1883, when the defendant showed her the declaration, and induced her to swear to this falsehood out of sympathy and a promise of $5,000, and that she took Yesta Snow, who was in her employ at the time, to the defendant, where she was also shown the declaration, and induced to swear .to this story. On her cross-examination, when recalled in Sharon v. Sharon, she contradicted herself badly, and evidently was made to say what she did not intend, and what was not true. But hero she tells a lucid, plain story, and explains that on that cross-examination she was so stormed and raved at by Mr. Tyler that she did not know what she was saying.

But it has been shown beyond a doubt that the key-note of this story, the meeting of the parties at Martha Wilson’s house, on the date of the furniture order, is totally false. Yesta Snow says she went to Martha Wilson’s house that day, October 14th, at the request of Martha’s husband, to ask her to come to the restaurant then kept by her at 644 Mission street; and she remembers the one circumstance by the other, and that Martha Wilson had a restaurant at that place on that day, and so says the defendant. But the landlord and tho mechanics, who furnished and fitted up the restaurant, swear, and produce their books of original entry to support their statements, that Martha Wilson did not occupy the place until some time in November, and prpbably as late as the 10th. And soon after the trial of Sharon v. Sharon, Martha Wilson was indicted in the slate court for perjury in denying that she had seen or heard read the declaration as stated by the defendant. Upon this indictment she has since been tried, both the defendant and Yesta Snow being witnesses against her, and found not guilty.

Yesta Snow is a woman of doubtful repute, who has worked for Martha Wilson, and appears to be keeping a cheap lodging-house. She testifies in this case, as in Sharon v. Sharon, that she saw and read the declaration at Martha Wilson’s house, on October 14,18S0; and also that soon after the defendant left the Grand she went one day to San Jose, and that while she was gone she (Yesta Snow) went to Martha Wilson’s, and they took a bundle of the defendant’s papers from behind a picture on the wall, and she looked over them, and read them “some,” and the declaration, and sundry “Dear Wife” letters signed “Sharon,” and a furniture order of October 14, 1880, were among them. Now, one item of this statement is undoubtedly false. The defendant obtained the furniture on the order -of October 14, 1880, and delivered it to the person in charge, and did not have it in 1881. Mr. Cushman, her witness, swears that he was then in the plaintiff’s employ at the factory, and received the order, which, by accident, was not placed among the factory papers, but kept by him, and that the defendant never saw it again until October 13, 1883. And the rest of the story is too absurd and unreasonable for any credence. For who can believe that the defendant, smarting under her recent expulsion from the Grand, would leave papers of so much importance to her as this declaration and these letters in a loose package behind a picture on the wall, at Martha "Wilson’s, for Yesta Snow and other busy bodies to pry into and meddle with, while she was gone to San Jose ? And yet the defendant does not hesitate to back her witness, and swear she left the papers behind the picture, as Yesta Snow states, and adds that when she came back she met her uncle there, and took him into the dining-room and showed him the documents. So, then, this kind of contemporaneous evidence is reduced to Yesta Snow, who appears unworthy of credit, and Mary E. Pleasant, of whom more hereafter.

But why are not her relatives called, to whom she says she disclosed the fact of her marriage to the plaintiff, and particularly her uncle, to whom she says she made the disclosure while she was at the Grand, and to whom she says she showed the declaration at Martha Wilson’s soon after she left there ? What more probable than, if she could get the testimony of persons like these to verify her claim and corroborate her statements, she would not be leaning on such broken reeds as Snow and Pleasant? Counsel for the defendant, when pressed on this point during the argument, replied that it was not competent for the defendant to prove her own declarations in support of the writing or the marriage; but if the plaintiff wanted to contradict her in this respect, he could have called those persons for that purpose. But it was time enough to discuss the question of competency when the objection was made by the plaintiff. If the defendant really believed that she could prove these acts and declarations of hers by these relatives, she would have called them, of course. It may be admitted that the competency of the proof was in part open to argument ; but that would not have prevented her from offering it, at least, especially as she did introduce testimony of the same kind. If the declarations as to the marriage or the existence of the declaration were made during her residence at the Grand, they were, in my judgment, admissible as a part of the res gestœ, (1 Whart. Ev. §§ 258, 259; 2 Greenl. Ev. § 462; 1 Bish. Mar. & Div. §§ 438, 540;) but certainly it was competent to call her uncle to prove that he had seen the declaration of marriage and “Dear Wife” letters at Martha Wilson’s house just after the defendant left the Grand. These relatives are admitted on all hands to be respectable people, and it is a very suspicious circumstance that not one of them, not even the brother, is called or appears to support the defendant in any way. Her omission to call them to corroborate her statements is an admission that-they would not do so because they could not. , It is'true that the plaintiff might have called them in rebuttal to contradict the defendant; but as' she in effect admitted, by not calling them, that they would not corroborate her, that was sufficient for his purpose, and he might well refrain from needlessly bringing them into painful prominence in this unpleasant and unsavory affair.

Mary E. Pleasant, better known as Mammie Pleasant, is a com-spicüous and important figure'in this affair, without whom it would probably never have been brought before the public. She'appears to be a shrewd old negress of considerable means, who has lived in San Francisco many years, and is engaged in furnishing and fitting up Rouses and rooms, and caring for women and girls who need a mammie or a manager, as the case may be. The defendant states that she became acquainted with this witness early in 1881, and soon after told her of her marriage, and showed her the documents; that from the time she had the trouble with the plaintiff she put herself under her direction and control, and by her advice suppressed all allusion to herself as the wife of the plaintiff in the letters she wrote him after she had been ordered from the hotel; and, as an excuse for this extraordinary abnegation of herself and affairs in favor of this old woman, she swears:

“ Mammie Pleasant was old, and had the experience, and she had the experience of lots of girls and women, — had the experience of the world; and being a servant, and being a wife, and being the head of families, I took her advice and wrote just about what she would dictate. * * * I was much of a baby.”

Mamrnio Pleasant has taken charge of this case from the beginning, and, to use her own phrase, is making the defendant’s “fight,” whom she supports, and to whom she was forced to admit, after much evasion, she has advanced more than $5,000, and how much more she would not tell. In my judgment, this case, and the forgeries and perjuries committed in its support, ha,ve their origin largely in the brain of this scheming, trafficking, crafty old woman. She states that as early as 1881 the defendant wanted her to furnish her house at a cost of $5,000 or $6,000 on the strength of her relations with the plaintiff. 13ut it seems that Mammie was not certain that the plaintiff could he held liable for the expense, and so she called on her counsel, Mr. Tyler, and stated the case to him, without, as she is careful to say, mentioning any names; but said that the man owned two hotels, and was living in one of them, and the woman in the other, which, under the circumstances, is equivalent to saying “the party of the other part” is William*Sliaron. After due deliberation, Mr. Tyler gave her a written opinion, which she says cannot now be found, to the effect that such a contract as she mentioned and he suggested was a lawful marriage, under the Code, and the supposed man who owned two hotels (the Palace and the Grand) would be legally liable for the expense of furnishing his “Code” or “contract” wife with a suitable residence, although he was then maintaining her at a cost of $500 a month at the Grand. Mr. Tyler admits that in the fall of 1881, or the spring of 1882, he was consulted by the witness, as she states, and that he gave her a written opinion to the effect that the man would he liable; but I am quite certain that, if the real date of this conversation is ever satisfactorily ascertained, it will be seen that it took place in 1883. But however this may ho, defendant and the witness being thus instructed or informed as to what constituted a valid contractor declaration of marriage under the Code, in due time, and by means best known to themselves, produced this document, which as a legal composition is worthy of its origin, and which, in the language of the senior counsel for the defendant, is beneath the learning and skill of a “jack-legged lawyer.”

On the other hand, a number of apparently respectable witnesses testify to delarations and conversations of the defendant during her residence- at the Grand and afterwards that are utterly irreconcilable with the idea that when they were made she had any idea she was the wife of the plaintiff.

Mrs. Mary H. Brackett, the mother of Nellie, says the defendant lodged at her house ffom-early in August to late in November of 1882, and that shortly before she left she told her that she had been engaged to the plaintiff, but it was broken off. Her brother, she said, was opposed to the match, because Sharon’s “pedigree was inferior to hers.” She also said he was a shriveled-up old man, anyhow, whom no one would marry but for his money.

Mrs. Sarah Millett, formerly Sarah Orr, was for a long time seamstress at the Grand. Her room was near the defendant’s, and they appear to have been quite intimate. She swears that while the defendant was living at the hotel she told her the plaintiff was her beau, and that just before he left for Washington, in January, 1881, he wanted her to go with him and be married privately, which she declined to do, and was since sorry for it; and this she said many times, including the last night when she was in the hotel, when the witness was lying on the bed with her. In the spring of 1882 this witness called to see the defendant on Ellis street, when the latter begged her to bring herself and Sharon together again, promising, if he married her, to give the witness a house .and lot.

Mrs. Sarah Morgan heard the defendant say at Mrs. Hardenberg’s lunch table at Oakland, in August, 1881, that her engagement with Sharon was broken off, and that she was going east and may be to Europe; and that in 1880, and after August 25th, she told the witness that she was “engaged to be married to Senator Sharon.”

Mrs. Harriet' Kenyon was with the defendant as maid, except for one week, from September 11 to the latter part of November, 1881. The facts stated in her testimony are altogether incompatible with the idea that the defendant was, or even wanted to be, the .plaintiff’s wife, but rather that the old love for the lawyer was on again, whom she visited slyly, and dined with at the Yerein club, and came home speaking of him as, -, sweetie, how I love you!”

Mrs. Nellie Bacon knew the defendant slightly when she first lived at the Baldwin. In the fall of 1880 she went to the Grand to board, where she remained until April, 1881. She says that during this time she saw the defendant daily, and she said the plaintiff was paying her attention, and might propose to her; that a proposal from him involved “many delightful things, and one not so delightful, — his advanced age;” but that she preferred the lawyer to any of her lovers. In January, 1881, when the plaintiff went to Washington, the witness,, at .the request of the- defendant,- draughted a letter for her to the plaintiff, designed to make him propose or compromise himself, which she copied and sent to him; but soon after the plaintiff returned from Washington she said she had trouble with him, and was afraid lie would never marry her.

It is true that the' defendant denies all these statements, and speaks contemptuously of the people who make them as persons beneath her notice. But they appear to have been her associates, even, in her better days, and there is not a circumstance in the case that makes against the integrity and character of either of them. Besides, it won’t do to sneer at these people while she consorts with Vesta Snow and Mammie Pleasant. Add to this, her credit is' so badly damaged that her unsupported statement is not sufficient to overcome, or even seriously impair, the effect of positive testimony .from unimpeached and, so far as appears, unimpeachable witnesses.

And, lastly, lot us consider how the existence of those documents, and the claim of the defendant that she is the wife of the plaintiff since August 25, 1880, comport or correspond with the situation of the parties at the time, and their daily walk and conversation since. In August, 1880, the plaintiff was in the decline of life, in the possession of a very large fortune, with a family of grown-up children, to whom ho was much attached. As was said in Holmes v. Holmes, 1 Sawy. 119, in speaking of a person somewhat similarly situated: “With him the primary object of marriage, the procreation of children, had been long accomplished; and the secondary one, the avoiding of fornication, does not appear to have much concerned him.” The defendant was a mature young woman, of rather prepossessing appearance and tolerable attainments, with some years’ experience in hotel life and stock speculations. During the past eight or ten years she had lived in comparative luxury and ease on money derived from her family. But early in 1880 she found herself without means, and the losing party in a protracted game of hearts, for which she sought, but without effect—

“To give repentance to her lover,

And wring his bosom”-—

by committing suicide in his presence.

In this desperate condition she met the plaintiff, an unmarried man, with the reputation of a Giovanni, and, without any formal introduction, accepted an invitation to his private office to “talk stocks,” which soon ended, as she must have expected, if not desired, in talking about herself. If this interview had ever taken place, as the defendant relates it, it was much more likely, under the circumstances, to have ended in an arrangement by which the plaintiff would pay her $500 a month to be his convenient friend, than that he should then and there make her his wife, and admit her to an unqualified marital right and interest in his immense fortune. Taking the defendant’s account of the transaction, the pages of fiction furnish n o parallel to the singular and unnatural conduct of these parties. There was no preliminary courtship, but barely an acquaintance between them. They came together fortuitously in the stock operations of California street, and their personal intercouse began with a proposition from the one that the other should be his mistress, which she declined, apparently without being offended, when he, unable to control his sudden passion, offered her marriage, which she readily accepted. After a few words of parley as to the modus operandi, she agreed to a secret marriage, to be evidenced by a writing under the Code, executed by the parties, but unattested by witnesses. Thereupon the defendant, at the suggestion and dictation of the plaintiff, wrote at one sitting, cúrrente calaino, this unique declaration, without altering or correcting a word or phrase therein, to which the latter then signed his name, adding,' I suppose, by way of emphasis, the words, “Nevada, Aug. 2o, 1880.” And then, without more ado, without even a parting kiss or fond embrace, they went their several ways as if nothing more had happened than a deal in Belcher; not knowing, and apparently not caring, whether they should ever meet again. This ardent lover, whose fervent affection led him to back the offer of his pleth-oric purse with his widowed hand, turned his back on the lovely and consenting Althea to give his heart and soul to the study and control of Nevada mines and politics, while she, in the pathetic language of counsel, remained “an ungathered rose.”

They separated without any arrangement for the future, and no communication passed between them for weeks thereafter; and none appears to have taken place until about the date of the letter to her at the Baldwin, which reads more like a solicitation for an assignation than a communication from a husband to a wife. During this time the Galindo Hotel burned down, and she was compelled to seek new lodgings, and went back to the Baldwin. She admits that she never informed her alleged husband of the occurrence or her whereabouts, and when asked to explain this singular conduct, she could do no better than give this frivolous and flippant answer, which carries its refutation on its face.

“I knew when he came clown, [from Nevada,] if he wanted to see me, he could And me. I don’t think it necessary for wives to run after their husbands. I didn’t take the trouble to notify him where I had gone to. I thought, if he cared so much for me as he pretended to, he would And me. I am not in the habit of running after people.”

The defendant’s idea of what a wife would or should do, under such circumstances, is evidently not founded on experience, and, judging from her conduct' and the explanation of the same, it is evident that she has yet to feel the tender solicitude that a true woman has for one to whom she has given her heart and hand in .holy wedlock. And, now, could anything be more unnatural and improbable than this? There is no esbape from the conclusion, — the conduct of the parties was contrary to human nature and common experience, and makes the story of the marriage utterly incredible, even if it was not contradicted by the oath of the plaintiff.

But the conduct of the parties, after they found one another, also contradicts and is altogether irreconcilable with her claim of marriage, and stamps with, the mark of falsehood and forgery the declaration and letters relied on to support it. It is apparent that the defendant went to the Grand to live in pursuance of some arrangement with the plaintiff soon after the letter to her of September 25, 1880. This is plainly indicated by the contents of the letter to her from Virginia, inclosing the one to Thorn, and of that also. But during her 15 months’ residence there, the parties, so far as appears, never addressed or spoke of one anoiiier, in public or private, orally or in writing, as husband and wife, or said anything that implied such relation. Nor does it appear that any such claim was ever made or admitted by cither of them, under any circumstances. The intercourse between the parties, so far as is known, or may be inferred from the evidence, was of a familiar and somewhat commonplace character, but utterly wanting in the tender consideration and respect usual and proper between husband and wife in their station of life.

The character of his letters to her has already been commented on. Tlioj are very brief, and either relate to the payment of her allowance, or contain an invitation to dinner, which plainly implies that she was not in the habit of sitting at his table or expected there, unless specially invited. They are utterly void of affection, and altogether lacking in mention or even allusion to the numberless and nameless little incidents and affairs peculiar to every married couple, and which, taken together, constitute the charm as well as the staple of married life; and, although Christmas and New Year passed, and -a birthday came to her while there, it does not appear that she ever received a present, greeting, or other token of affection from the plaintiff.

But there are convincing proofs in the conduct of the parties, other than these general, and negatives ones, against this claim of marriage. Take the circumstance of concealing herself in the plaintiff’s rooms, and watching him and another undress and go to bed together, and the indifferent and indecent levity with which she carried the story to the seamstress. Waiving the moral insensibility which such conduct implies, it is inconceivable that a wife could witness such a scene without some manifestation of anguish, if not anger, and, what is worse, that she could regard it as a good joke, and gleefully relate it as such to others. Speaking of the affair, she says, “I laughed at it, and told it to a good many people. It was a very amusing affair to mo.” Afterwards, when slio came to sign her deposition, and had had time to reflect, and perhaps receive a suggestion, she seems to have realized the damaging nature of her admission, and said that, although she laughed at the affair, she was “angry” too. But whether she was “amused” or “angry,” or whether she laughed simply or with a laughter akin to tears, she did not act like a wife.

Towards the close of the year 1881 the plaintiff had evidently gotten tired of the defendant, or distrusted her, and probably both. Moved by these considerations he had a settlement with her, in which he gave her $7,500, as already stated, for which she gave him a receipt in full of all demands, soon after which he had her summarily, and against her abject petition and remonstrance, expelled from the hotel. 'Now, if the plaintiff was married to this woman, and knew she had the written evidence in her possession of that fact, it is not reasonable or probable that he would have gone to such extremity with her; and, although it may be claimed that he acted on the supposition that she had lost the declaration, and she swears she told him so, for the purpose of preventing him from getting it away from her, he must have known that, if she had letters of his addressed to her as “Dear Wife,” they were as good weapons in her hands as the declaration itself. However, it is sufficient to say that his conduct on this occasion was anything but that of a husband. In fact, he never, so far as appears, treated her otherwise than as a plaything or fancy for which he was paying as he went, and expected to as long as it suited him.

But the conduct of the defendant on this occasion is enough, in my judgment, to settle this question against her, even if the plaintiff was silent on the subject. When she was ordered to leave the hotel, she wrote the plaintiff three letters in quick succession, beseeching him by every consideration that occurred to her to allow her to remain on the old footing under his roof. If at the time she believed herself to be his wife, it- is impossible that she should have written these abject appeals to the plaintiff, every word and syllable of which read like the wail of a poor discarded friend or mistress, and not the' confident and certain reply of an outraged wife, conscious of her rights and her power to assert them. It is not necessary, and space will not permit, to call attention to these letters in detail. They are contemporaneous conduct of the defendant, at the most important crisis in her relations with the plaintiff, and their purport cannot be misunderstood. The mere perusal of them is enough to convince any one that they were not written by a wife to her husband. These honored terms do not even appear in them. In her direst distress she daremot address him as husband, or call herself his wife. The highest ground on which she bases her appeal for mercy is “friendship,” — an indefinite term which might well be used to characterize the relation between any unmarried man and woman. She asks the question, would you “stoop to injure a girl, and one whom you have pretended to love?” And again she says: “Don’t do things now that will make talk” What “talk” is she afraid of but “talk” about their doubtful or illicit relations ? Further on she urges her claim in language that cannot be misunderstood for that of a wife:

“Mr. Sharon, yon have boon kind to me. I have said I hoped my God would forsake me when T ceased to show my gratitude.” “Iliad hoped to always have your friendship and good-will throughout life, and always have your good advice to guide me.” “I valued your friendship more than all the world, llave 1 not given up everything and everybody íorif?” “I have always been kind to you, and tried to do whatever I could to please you, and I hope at least, in your unjust anger, you will let us apparently part friends, and don't do or say anything that could create or make any gossip.”

“Gossip” about what? That the defendant was the plaintiff’s wife, and they had been secretly married. Was that what she was afraid of ? No, not at all; but rather that she was his lemán, and had misbehaved lierseif and been discharged. The plaintiff took no notice of her wail, and she was compelled to go. But she was not without hope that they might be friends again, and in the summer of 1882 she appears to have been in the habit of calling on him at the Palace, but her calls were never returned; and in August of that year she wrote the plaintiff the remarkable letter known as the “Us Girls” or “Egg and Champagne” letter. It is given above in full, and speaks for itself. How any one can have the hardihood to claim that it was written by a wife — and a deeply injured one — toa cruel and unfaithful husband, is more than 1 can understand. It is apparently the work of an artful woman who is anxious to get her not over the head of a wayward old millionaire again, and recall him to her side once more, — not so much for love as moonlight drives, visits to the springs, lovely days in the country, egg in champagne, and the like; and, distrusting the power of her own familiar charms and honeyed phrases, she adroitly contrives to put young “Nell” in tho foreground, as a fresh lure to the -wary old bird.

Sometime after this the defendant took Nellie Brackett with her to the Palace, and the plaintiff had them both put out of the hotel; whereupon the letter signed Miss Brackett, and known as the “Old Sharon” letter, was written and sent to the plaintiff. The defendant says the letter was written by Nellie Brackett, but that she knew of it and approved it; but I think there is no doubt but that she dictated it, or wrote' it horsolf, and had Nellie copy it. But that is not very material to my present purpose. Certainly the writer of this letter never dreamed that the defendant was the wife of the man she was berating; and if Nellie wrote it,it is another cogent circumstance to show that she did not know of the alleged marriage, or the existence of the disputed documents, and that the defendant’s statement, that she had before then told her of the one and showed her the other, is untrue; and to this effect is Nellie Brackett’s testimony. But if it was written or dictated by the defendant, it is only another link in the long chain of independent and indisputable circumstances contradictory of the defendant’s claim and testimony. The writer speaks of the defendant as “a motherless, fatherless girl, * * * alone in the world,” and leaves no room for even an implication that she over thought of her as the wife of any one. The style and matter indicate that the defendant can be fierce and abusive.ás well as wheedling and fond; hut she had no thought then that the person she addressed as “you horrible, horrible man” was her own dear husband.

The character and contents of these five letters of the defendant are too damaging to her claim to be passed over in sileffce. They could not be directly denied, but a weak attempt has been made to palliate them. .The defendant first took refuge in the secrecy clause of the declaration, w'hieh bound her not to make its contents “public” for two years, although it is probable that the last two of these letters were written after that period had expired. She said she was advised that if she did not keep that promise the marriage would become void, or the plaintiff would make her trouble, and therefore she did not feel at liberty to address him, even privately, as his wife or her husband, even when he was driving her from his presence and protection, It is not likely that any lawyer ever gave her any such absurd advice, and, as she has failed to call the adviser to corrobórale her statement, that story may be dismissed. However, on being confronted with some imaginary conversations she says she had with the plaintiff during this period, in which she told him to his teeth that she was his wife and meant to have her rights as such, she fell back on her good genius, Mammie Pleasant. She says she wrote the letters and wanted to do so as the plaintiff’s wife, but this wise old manager would not let her write a word to the plaintiff indicating that she was his wife, for fear it would “rile” him and make trouble. This is a very flimsy story, and altogether unworthy of credit. To one who has seen and heard the defendant in court, and has read the report of her examination before the examiner, the idea that old Mam-mie Pleasant, or any one else, could control her tongue or pen in her intercourse with the plaintiff is simply ridiculous. Neither is it reasonable that she, or any one else, would regard it as a violation of the secrecy clause in the declaration for her to address the plaintiff in private as his wife, and to insist on being treated accordingly. She did, according to her own statement, tell a number of persons before this of the marriage, and she says she did not think that was making it “public.” Then, how could she imagine she was not at liberty to speak of the matter in private to “the party of the other part?”

But the inconsistency of her conduct, compared with her claim, does not stop here. For more than a year after the expiration of the secrecy clause she made no sign or pretense of being the plaintiff’s wife. During this time the plaintiff paid her no attention, but treated her as a person he was well rid of. Her financial resources were daily diminishing as she neared the end of the provision made for her by the plaintiff in the fall of 1881. There was no longer any reason why she should not openly address the plaintiff as his wife, and demand recognition and support from him accordingly. Not only this, but she had every reason now to exhibit her documents to her brother and other relatives, and at least claim their countenance and advice.' But, instead of this, she gave herself and her cause into the keeping oí an old woman, who appears to be no better than a go-between, and one William Neilson, of whom the counsel for the plaintiff said, on the argument, without objection or reply from any one, as a reason for not having taken his testimony: “It was not thought worth while to tarnish the record with any statement he might make.” And through such agencies and advice as Pleasant’s and Neilson’s, she finally, on September 8, 1888, without a note of warning to or demand on her alleged husband, precipitated her case on the public in a melodramatic and roundabout way, by having the plaintiff arrested for adultery, on the assumption that he was her husband, and soon after publishing the declaration and what purported to be a “Dear Wife” letter. But the original of this letter has never been produced, and the defendant on her examination admitted that she nevor had one like it. Nellie Brackett sweats that it was addressed, “My Dear - — and that the defendant afterwards spoiled it in trying to substitute the word “Wife” for the dash. Her testimony on this point is substantially as follows:

“After Mr. Sharon’s arrest, Neilson said, he would publish the letter addressed ‘ My Dear-’ as * My Dear Wife.’ Miss Hill said she did not like that, because she had no such letter. Neilson said ho would see that she had a ‘ Wife ’ letter out of that one that luid a dash on it. After four or five weeks, he not attending to it, siie tried to fix that letter herself and spoiled it. ”

Her testimony is strongly corroborated by that of the defendant, and squares with the admitted facts and probabilities of the case. But the effect of Ibis circumstance does not stop here. The transaction furnishes another convincing argument against the existence of the “Dear Wife” letters as late as September, 1883; for if the defendant had had the “Dear Wife” letters when Neilson published the admitted spurious one, she would certainly have furnished him one of them for publication.

Neilson’s relations with the defendant at that time, and his position in the affair, are not doubtful. Pie was her agent and adviser, and knew as well as she did that she then had no “Dear Wife” letters. This will appear from the agreement between her and her counsel for the division of the prospective fruits of this predatory litigation. On October 24, 1888, Mr. Tyler made a written agreement with the defendant, she signing it as “S. A. Hill,” for the prosecution of a suit against the plaintiff for the vindication of her good name and a division of the common property, which they subsequently alleged to bo of the value of «110,000,000, for one-half of what ho might recover. The agreement contains a clause to the effect that Mr. Tyler will not settle with Sharon without the consent of the defendant “and her agent, William Neilson,” who doubtless was an agent with an interest, and well advised in the premises. The only inference to he drawn from these facts is that on September 8, 1883, and until some time af-terwards, the “Dear Wife” letters were not in existence. The tracing and alteration had not then been done. The conspiracy had not progressed so far. No credible witness swears to having seen,them earlier than September 26th; and if any one had, in the light of these facts, it would, be considered a mistake. R. P. Clement says he saw them between September 26th and October 10th; C. D. Cushman says on October 20th; Samuel Soule says on November 23d; and W. B. Tyler says in October. Vesta Snow and Mammie Pleasant are the only persons who say they saw them earlier.

I have thus gone over the salient points in this case at some length. Much more might be said on minor points to the same effect. But this, in my judgment, is sufficient to show that, humanly speaking, it is not possible that this declaration of marriage was ever signed by the plaintiff, and that it is morally certain that both it and the “Dear Wife” letters are false; that they were practically forged by the defendant, by writing the declaration over a simulated signature, and by making tracings and alterations of letters from the plaintiff to herself, and substituting in the address thereof the word “Wife” for “Miss Hill” or “Allie,” and omitting at the end of the one in ink the words “yours truly;”.and that the claim of the defendant to be the wife of the plaintiff is wholly false, and has been put forth by her and her co-conspirators for no other purpose than to despoil the plaintiff of his property. In this undertaking, doubtless, the proverbial sympathy of the multitude for an attractive young woman, engaged in an affair of this kind with an immoral old millionaire, was largely relied on to make the conspiracy successful. But in a court of justice such considerations have no place. Here, at least, the conduct of the parties must be measured and characterized by the evidence, and have effect according to the law in such cases provided.

A woman who voluntarily submits to live with a millionaire for hire ought not, after she. finds herself supplanted or discharged, to be allowed to punish her paramour for the immorality of which she was a part, and may be the cause, by compelling him to recognize her as his wife and endow her of his fortune. If society thinks it expedient to punish men and women for the sin of fornication, let it do so directly. But until so authorized, the courts have no right to assume such function, and, least of all, by aiding one of the parties to an irregular sexual, intercourse, to despoil the other, on the improbable pretense that the same was matrimonial and not meretricious.

The question of whether there was a marriage between these parties, assuming the defendant’s statement to be true, does not directly arise in this case. This suit is brought to annul the written evidence of the alleged marriage, on the ground of its falsity, and 'to enjoin the defendant from setting it up or using it to the prejudice or injury of tlie plaintiff. But, in determining this question, the conduct of the parties during the time it was claimed they were living under this instrument as man and wife has necessarily been examined, and found not to support sueh claim. And, so far as the element of consent in this alleged marriage depends on this declaration, the conclusion that it is false is equivalent to a determination that there was no marriage between the parties, and that their intercourse was meretricious.

But I cannot refrain from saying, in conclusion, that a community which allows the origin and integrity of the family, the corner-stone of society, to rest on no surer ox better foundation than a union of the sexes, evidenced only by a secret writing, and unaccompanied by any public recognition of each other as husband and wife, or the assumption of marital rights, duties, and obligations except furtive intercourse, more 'befitting a brothel than otherwise, ought to remove the cross from its banner and symbols, and replace it with the crescent.

The plaintiff is entitled to the relief prayed for; and it is so ordered.