Means v. Welles

Hubbard, J. It was contended that there was no disability on the part of Sophia R. Means and Catharine E. Cushing, two of the demandants, to prosecute their suit prior to January 1st 1840, on the ground that there was no legal evidence of their marriage, at and prior to that time, to John W. Means and William B. Cushing, the other two demand-ants, who sue in right of their respective wives. In regard to William B. Cushing and Catharine E. Cushing, the ruling of the judge, at the trial, as to the sufficiency of the evidence to prove their marriage, was not objected to ¡ but as to the proof to support the marriage of Sophia R. [361] Means, it was argued that mere cohabitation was not a species of evidence, sufficient for that purpose, to sustain a writ of right. But we are aware of no distinction, as to the amount of proof necessary to establish a marriage in any one case more than another, where marriage is a fact to be proved in order to sustain an action. In a suit against a man for supplies furnished to a person alleged to be his wife, his admissions are evidence of the fact of marriage, as well as other acts. Biit where a person is plaintiff, and seeks'to establish the proof of his marriage, he must do it by satisfactory evidence, whatever is the nature of his action, and his admissions will not be received in proof of it. In the present case, the cohabitation of John W. Means and Sophia R. Means, as man and wife, was proved as existing in 1837; and this was sufficient to warrant the jury to infer their previous marriage. The provision in St. 1840, c. 84, that on the hearing of an application for divorce, evidence of cohabitation of the parties, as married persons, should be received as competent evidence for consideration whether a marriage existed or not, was extended, by St. 1841, c. 20, “ to all cases where it shall become necessary to prove the fact of marriage, in any hearing before any court in this Commonwealth.” And before these statutes, a marriage might be presumed from long cohabitation. Inhabitants of Newburyport v. Inhabitants of Boothbay, 9 Mass. 414. Hammick v. Bronson, 5 Day, 290. On the motion to discontinue, as against Cushing and wife, the tenants objected that it ought not to be granted, but' that they were entitled to a verdict and judgment against them ; and they relied on Haskell v. Whitney, 12 Mass. 47, and Locke v. Wood, 16 Mass. 317. In the first of those cases, the parties had agreed to refer the action and all demands; after which the plaintiff moved for leave to discontinue. The court held that the agreement to refer, being entered on the docket, was not a mere agreement in pais, but was a vested right in the defendant to proceed, if he should see fit, agreeably to the forms of the rule, and that the plaintiff could not afterwards become nonsuit, or discontinue, without the [362] consent of the defendant. In the other case, after a verdict was returned, but before it was recorded, the plaintiff moved for leave to discontinue; but the court refused to grant it, as it might be dangerous to establish such a precedent. Those cases proceeded on the ground of a right obtained by the defendant, of which the plaintiff cannot, at his own pleasure, deprive him. And for a like reason it is provided in the Rev. Sts. c. 96, § 24, that “after a demand is filed in set-off, the plaintiff shall not be allowed to discontinue his action, unless by consent of the defendant.” But it is held by the court, that where a discontinuance is not a matter of right, it may be granted by the court on motion, and on cause shown ; and this has been the state of the law for a long period, both in England and in this country. Com. Dig. Pleader, W. 5. Philips v. Echard, Cro. Jac. 35. The leave to discontinue, in the present case, was within the discretion of the presiding judge; and we cannot doubt, upon the facts proved, but that it was rightly exercised. See Stearns on Real Actions, (1st ed.) 81. An objection was also taken, that the demandants counted on the seizin of their grandmother or grand uncle, and not on that of their father, who survived them; and therefore they did not make themselves heirs of the person last seized. On leave being given to amend their writ, which was objected to, they counted on the seizin of their father. That a writ of right may be amended is settled by the cases of Holmes v. Holmes, 2 Pick. 23, and Overseers of the Poor of Boston v. Otis, 20 Pick. 38. In the present case, there is no evidence tending to show an ouster by the tenants. They entered as heirs of the person last seized, and their entry is presumed to be according to their legal title; so that the entry of one enures for the benefit of all the heirs. Shumway v. Holbrook, 1 Pick. 114. Barnard v. Pope, 14 Mass. 438. Marcy v. Marcy, 6 Met. 371. The demandant Sophia R. Means, then, was actually seized of the demanded premises, within the authority of these cases; and being under coverture at the time when the [363] statute bar to the prosecution of a writ of right (Rev. Sts e. 101, <§><§> 51, 52,) went into effect, her husband and herself are at liberty now to maintain this action in her right. Judgment on the verdict.