Whitehead v. . Clinch

3 N.C. 3

• Court: Superior Court of North Carolina
• Decided: July 5, 1797
• Status: Published

Opinion

Per Curiam.

Williams and Haywood Judges.

rrlt is true some of the practices since the act of 1784, nave made their de-fences by way of answer, it is equally true that others have made Sanee bv r.i-.vd-it St t he ordciice should <>'■ sett! The act of i7S4did not intend this .o be an rqui'y proceeding; it did not mean to require that the defendant should answer on oath ; it alters the common law no fanner than it has directly expressed by substituting the petition in place vf the intricate proceedings by wr:t and declaration; the defence must be made and tried as before ; it is absurd to say the court shall try in a summary way whether the plaintiff received satisfaction rr not, or was lawully married or not: the rules of the common law are never to be departed from but where the legislarme have expressly directed it, cr where it necessarily fellows from what they have directed : they have not dune this in the present instance; they have not required any answer «on oath, and the (curt will not. So the juiy was sworn on the pleas, and after much argument on both sides the court permitted oral evidence to be given of cohabitation in proof of the marriage notwithstanding the English authorities require a certificate of the Bishop, because there is no recerd kept here of marriages as in England ;heve is, consequently n.o certificate of any officer ran be had, and unless parol evidence be received vve shall invalidate all the marriages in the country.