Jenkins v. Bisbee

The Vice-Chawcei,i.ob. The leading question which I ami called upon to consider, is one of fact: whether the defendants are husband and wife ? for if this relation is established, the consequence flowing from it, as respects the property held in her name, will confer upon the complainant a right to some relief in this court. . It is not necessary, in cases like the present, to adduce proof of the formal solemnization of a marriage, or of a contract of marriage, made per verba, de presentí, which would constitute a valid marriage. Cohabitation, acknowledgment of a marriage by the parties themselves, reception of them as man and wife by their relations and friends, as well as common repute, are sufficient to make out the relation. Any of them will raise the presumption of a marriage: Matthews on Evid. 283; Fenton v. Reed, 4 John. R. 52; Jackson v. Claw, 18 J. R. 346. The evidence is insufficient, upon any of these grounds, to make out the marriage against the positive denials of the an [379] swer. The three witnesses first examined only go to Bisbee’s admissions and declarations of his being a married man, and of ° the co-defendant’s being Mrs. Bisbee. It is objected that this ought net to bear against her; and I concur in this: as she was not then a party to the suit. After she was made a defendant, there was only one witness, Hatfield, who testified to any thing like an admission by her of her being Bisbee’s wife. He called her Mrs. Bisbee; and she did not deny it. All the other witnesses only speak of his acts and declarations. Two other witnesses fail to make out that sort of cohabitation which is required, or a general reputation or acceptance of them as man and wife amongst their relations. Although I can make no decree for the complainant as the case now stands, I am not satisfied the justice of it is with the defendants. There seems to be some mystery unexplained as to the manner of their living together and the true ownership of the property. It has been suggested in argument that the debt was contracted in building the house; that the parties held themselves out as husband and wife and obtained credit on the faith of their being so; and that Bisbee had an interest or ownership in the property. It is unfortunate there is no allegation in the present bill as to this; but I think it is proper the complainant should have an opportunity to proceed upon that ground. I shall, therefore, dismiss the bill without prejudice to a new suit. The defendant, Appell, must have her costs; but, under the circumstances and considering Bisbee’s conduct, he must bear his own costs of the defence.