The opinion of the court was delivered by
Redfield, J.
The only question in this case, which is attended with any difficulty, as it seems to us, is, whether the copy from the records of the town of Plymouth is to be justly regarded as competent evidence, to prove a marriage in fact between the pauper and [589]*589Priest. The case of the Ex’rs of Booge v. Parsons, 2 Vt. 456, fully establishes the point, that this record was sufficiently made and authenticated, so far as it goes. It is, then, to be regarded as an authentic record of the facts, which it contains. But there is one essential defect, the omission of the name of the woman. But it does show the essential fact of the marriage of Priest with some one, and the date of the marriage. Thus far it is to be regarded as record evidence. But it is wholly inoperative to show the marriage of the pauper, until we resort to oral evidence. And that is so, to some extent, even where the record contains the names of the parties ; the identity must be established by proof, aside from the record. And in the present case, it is scarcely less satisfactory, than the ordinary proof of the identity of the parties.
It was, then, we think, competent to show a marriage in fact of the pauper with Priest. How it might be regarded, in a case where the person named in the record had cohabited with different persons, so near the date of the record as to leave no certainty in regard to the person intended to have been included in the record, it is not necessary to determine. In the present case, the date of the record being at the time the cohabitation of Priést and the pauper began, and he having never cohabited with any other woman, it is rendered certain, that, if he were married to any one, it was to her. The only doubt in the case, without the record, is, whether the parties dwelt together in wedlock, or without it. The record, showing fully the marriage of one of the parties, seems to remove all doubt upon that point, inasmuch, as one person cannot enter into the estate of matrimony alone, and it is here shown, that Priest could have had no partner, unless it were the pauper, — unless, indeed, it is supposed the concubine could intrude herself into the office of the wife, without clamor from within doors, or suspicion from without,— which is absurd.
There is, then, no ground to presume a marriage of the pauper with any other person, until after the death of Priest, which was in 1837. And any presumption of such a marriage with Shed, after that date, when the parties had lived so long together in a state of adultery, is highly improbable, as it seems to us. And it seems also to be a case, where the presumption is to be left to its natural force \yith the jury, as it was in this case, and in the cases cited by the [590]*590defendants’ counsel in argument, except where one presumption ia encountered by another, which is not the case here.
No doubt in some cases very strong presumptions have been made in favor of innocence ; and, as it seems to me, with very little reason, sometimes. Greensboro’ v. Underhill, 12 Vt. 604, which was decided mainly upon the authority of the case of the King v. Twyning, 2 B. & Ald. 386. This latter case has not been followed by the English courts altogether without question; but that was, at most, only disregarding the artificial presumption of the continuance of life, in favor of that presumption, which always exists in favor of innocence of crime. And in a recent English case, reported in the periodicals, the whole subject of presumptions of the continuance of life being fixed to the precise term of seven years, after the person was last heard from, is doubted, and, in fact, its soundness denied. But I apprehend, that, in ordinary cases, as matter of convenience, it will be allowed to prevail, upon the old basis.
The case of Fenton v. Read, 4 Johns. 51, is very much like the present; and the argument of the court is, and the decision may appear to be, different from the one which is above declared. But that case is a motion to quash the proceedings of a justice’s court, upon certiorari. In such cases courts exercise more or less discretion, with reference to the general merits of the controversy. It was upon that ground mainly, I apprehend, that that case was decided ; for the opinion is put upon the ground, that the question of a marriage, after the death of the first husband, is one of fact, and, as there was some testimony upon the point, the court would not disturb the finding. For the same reason, this court could not grant a new trial, if this point were properly submitted to the jury .in the county court. But it is said, in a note to this case in the second edition of Johnson’s Reports, — " In Cunningham v. Cunningham", in the House of Lords, on an appeal from the Court of “ Sessions in Scotland, 2 Dow 482, Lord Eldon and Lord Redes- “ dale held, that in cases of cohabitation the presumption was in fa- “ vor of its legality ; but where it was Imown to have been illicit in its “ origin, that presumption could not be made.” That is precisely the ground, upon which we think any such presumption, in a case like the present, would be forced, and ought not to be made, except upon some ground, rendering it more probable, than it seems to us to [591]*591be in the present case. The case of Van Buskirk v. Claw, 18 Johns. 346, is much like the case of Fenton v. Read, except that here there was no proof, in fact, of the first marriage. Both, then, standing upon mere presumption, that was allowed to prevail, which was most probable.
In these and other New York cases, stress is laid upon the fact, that a marriage per verba de praisenti is valid in that state, and also at common law, if followed by cohabitation. This, I think, could hardly be regarded as law in this state, without virtually repealing our statute upon that subject. It certainly has never been so regarded under the English statute of 26 Geo. 2, and 4 Geo. 4, ch. 76; and I see no reason, why it should be here, when it is clearly a dispensation with all the requisitions of the statute upon the subject. Wherever that rule, in regard to the law of marriage, prevails, as it does in Scotland, cohabitation as man and wife is marriage; since it implies, in the strongest sense, a contract in praisenti to be husband and wife.
The question, made in regard to permitting the entire deposition of Daman to be read to the jury, notwithstanding the general objection of the defendants, and the fact that it contained some irrelevant, and perhaps improper, evidence, is a question of practice, upon which the judge, who conducts the jury trial, must be allowed some reasonable discretion. If there were ample time, it might always be better to determine, in advance, how much of a deposition should be read to the jury, even upon a general objection; and in practice, ordinarily, that will be done, where the objection is specific. But very often this course will require too much delay, and always the admissibility of evidence, at the opening of the case, depends so much upon what is expected to be' proved thereafter, that great latitude must be allowed, or it may become necessary to reconsider the earlier determinations of the court, as the trial progresses. And if improper evidence is admitted, it may readily be set right in the charge.
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The opinion of the court was delivered by
Redfield, J.
The only question in this case, which is attended with any difficulty, as it seems to us, is, whether the copy from the records of the town of Plymouth is to be justly regarded as competent evidence, to prove a marriage in fact between the pauper and [589]*589Priest. The case of the Ex’rs of Booge v. Parsons, 2 Vt. 456, fully establishes the point, that this record was sufficiently made and authenticated, so far as it goes. It is, then, to be regarded as an authentic record of the facts, which it contains. But there is one essential defect, the omission of the name of the woman. But it does show the essential fact of the marriage of Priest with some one, and the date of the marriage. Thus far it is to be regarded as record evidence. But it is wholly inoperative to show the marriage of the pauper, until we resort to oral evidence. And that is so, to some extent, even where the record contains the names of the parties ; the identity must be established by proof, aside from the record. And in the present case, it is scarcely less satisfactory, than the ordinary proof of the identity of the parties.
It was, then, we think, competent to show a marriage in fact of the pauper with Priest. How it might be regarded, in a case where the person named in the record had cohabited with different persons, so near the date of the record as to leave no certainty in regard to the person intended to have been included in the record, it is not necessary to determine. In the present case, the date of the record being at the time the cohabitation of Priést and the pauper began, and he having never cohabited with any other woman, it is rendered certain, that, if he were married to any one, it was to her. The only doubt in the case, without the record, is, whether the parties dwelt together in wedlock, or without it. The record, showing fully the marriage of one of the parties, seems to remove all doubt upon that point, inasmuch, as one person cannot enter into the estate of matrimony alone, and it is here shown, that Priest could have had no partner, unless it were the pauper, — unless, indeed, it is supposed the concubine could intrude herself into the office of the wife, without clamor from within doors, or suspicion from without,— which is absurd.
There is, then, no ground to presume a marriage of the pauper with any other person, until after the death of Priest, which was in 1837. And any presumption of such a marriage with Shed, after that date, when the parties had lived so long together in a state of adultery, is highly improbable, as it seems to us. And it seems also to be a case, where the presumption is to be left to its natural force \yith the jury, as it was in this case, and in the cases cited by the [590]*590defendants’ counsel in argument, except where one presumption ia encountered by another, which is not the case here.
No doubt in some cases very strong presumptions have been made in favor of innocence ; and, as it seems to me, with very little reason, sometimes. Greensboro’ v. Underhill, 12 Vt. 604, which was decided mainly upon the authority of the case of the King v. Twyning, 2 B. & Ald. 386. This latter case has not been followed by the English courts altogether without question; but that was, at most, only disregarding the artificial presumption of the continuance of life, in favor of that presumption, which always exists in favor of innocence of crime. And in a recent English case, reported in the periodicals, the whole subject of presumptions of the continuance of life being fixed to the precise term of seven years, after the person was last heard from, is doubted, and, in fact, its soundness denied. But I apprehend, that, in ordinary cases, as matter of convenience, it will be allowed to prevail, upon the old basis.
The case of Fenton v. Read, 4 Johns. 51, is very much like the present; and the argument of the court is, and the decision may appear to be, different from the one which is above declared. But that case is a motion to quash the proceedings of a justice’s court, upon certiorari. In such cases courts exercise more or less discretion, with reference to the general merits of the controversy. It was upon that ground mainly, I apprehend, that that case was decided ; for the opinion is put upon the ground, that the question of a marriage, after the death of the first husband, is one of fact, and, as there was some testimony upon the point, the court would not disturb the finding. For the same reason, this court could not grant a new trial, if this point were properly submitted to the jury .in the county court. But it is said, in a note to this case in the second edition of Johnson’s Reports, — " In Cunningham v. Cunningham", in the House of Lords, on an appeal from the Court of “ Sessions in Scotland, 2 Dow 482, Lord Eldon and Lord Redes- “ dale held, that in cases of cohabitation the presumption was in fa- “ vor of its legality ; but where it was Imown to have been illicit in its “ origin, that presumption could not be made.” That is precisely the ground, upon which we think any such presumption, in a case like the present, would be forced, and ought not to be made, except upon some ground, rendering it more probable, than it seems to us to [591]*591be in the present case. The case of Van Buskirk v. Claw, 18 Johns. 346, is much like the case of Fenton v. Read, except that here there was no proof, in fact, of the first marriage. Both, then, standing upon mere presumption, that was allowed to prevail, which was most probable.
In these and other New York cases, stress is laid upon the fact, that a marriage per verba de praisenti is valid in that state, and also at common law, if followed by cohabitation. This, I think, could hardly be regarded as law in this state, without virtually repealing our statute upon that subject. It certainly has never been so regarded under the English statute of 26 Geo. 2, and 4 Geo. 4, ch. 76; and I see no reason, why it should be here, when it is clearly a dispensation with all the requisitions of the statute upon the subject. Wherever that rule, in regard to the law of marriage, prevails, as it does in Scotland, cohabitation as man and wife is marriage; since it implies, in the strongest sense, a contract in praisenti to be husband and wife.
The question, made in regard to permitting the entire deposition of Daman to be read to the jury, notwithstanding the general objection of the defendants, and the fact that it contained some irrelevant, and perhaps improper, evidence, is a question of practice, upon which the judge, who conducts the jury trial, must be allowed some reasonable discretion. If there were ample time, it might always be better to determine, in advance, how much of a deposition should be read to the jury, even upon a general objection; and in practice, ordinarily, that will be done, where the objection is specific. But very often this course will require too much delay, and always the admissibility of evidence, at the opening of the case, depends so much upon what is expected to be' proved thereafter, that great latitude must be allowed, or it may become necessary to reconsider the earlier determinations of the court, as the trial progresses. And if improper evidence is admitted, it may readily be set right in the charge. The recent English practice, upon this point, is much more liberal, than that which obtained as long ago as the time of Ch. Justice Willes. Smith v. Richardson, Willes 23. Now it is every day’s practice, at nisi prius, to admit evidence, subject to future objection; and even where it subsequently turns out, in the course of the trial, that a witness is interested, who has [592]*592given evidence, or, for any other cause, any portion of the testimony is found to be incompetent, it is erased from the minutes of the judge, and the case proceeds, the same as if it had never been given. Any other course would lead to very absurd results. If any the slightest testimony were admitted, which the judge, during the trial, clearly perceived was incompetent, and which, if the trial proceeded, with that testimony in the case, would render the trial useless, and still it could not be set right, without impanelling another jury, and beginning the trial de novo, jury trials would become so cumbersome, that they could not be endured. See State, v. McAllister, 24 Maine 139.
There is no complaint, in the present case, that the jury were not properly instructed, as to what portion of the evidence was, and what was not, competent. It may not be unsuitable, or unprofitable, to say here, that any nice questions, in regard to whether one word, more or less, from a witness, upon a given point, is competent, can never answer any good purpose. Where the general scope of the testimony of a witness is irrelevant, or incompetent to go to the jury, it is highly proper it should be stopped in the outset, or as soon as its general tendency can be fairly ascertained, either from the statement of counsel, or that of the witness. But where the main current of the evidence is competent, it most conduces to the quiet and good order of the trial, as well as to the correct understanding of the case, that the witness should be permitted to tell his story in Ms own way. These remarks are, no doubt, subject to many exceptions, and have, perhaps, no necessary bearing upon the very point before the court, except in a general way.
Judgment affirmed.
Davis, J., dissenting.