Boone v. Purnell

Brent, J., delivered the opinion of this Court. Although the record in this case is very voluminous, and the number of exceptions taken and prayers asked in the Court below is unusually large; there is in reality, as was conceded in the argument on both sides, but one important question submitted for the decision of this Court. Is general reputation admissible evidence in regard to marriage ? This kind of evidence is not to be confounded with hearsay evi — 626 — dence. Though generally treated of by the text writers under that head, and though composed of the speech of third persons not under oath, it is considered original evidence, and not hearsay; the immediate subject of inquiry being the concurrence of many voices, which raises the presumption, that the fact, in which they concur, is true. 1 Taylor’s Ev., 508. It must rest upon competent Knowledge, and is' therefore admitted in regard to matters only of public or general interest, the law presuming that upon such matters the public is enabled to speak knowingly and truly. In Hubback’s Ev. of Suc., 243, (mar. p.) it is said: “ reputation of marriage may be proved by the testimony of living witnesses, speaking to the existence of that reputation.” tn the case of Evans vs. Morgan, 2 Crompton & Jervis, 453, where the question of marriage was directly in issue, the testimony was held to be admissible. In reviewing this case Hubback properly states the ground of its admissibility, where marriage is the subject of inquiry. He says, on page 244, “it appears from this case and from the general tenor of the authorities, that reputation of marriage, wnlike that of other matters of pedigree, may proceed from persons who are' not members of the family. The reason of the distinction is to be found in the public interest, which is taken in the question of the existence of a marriage between two parties; the propriety of visiting or otherwise treating them in society as husband and wife, the liability of the man for the debts of the woman, the power of the latter to act suo jure, and their competency to enter into new matrimonial engagements, being matters which interest not their relations alone, but every one, who, by coming in contact with them, may have occasion to regulate his conduct accordingly as he understands them to be married or not.” The admissibility of this evidence is also recognized in 2 Starkie on Ev., 843, 844, and in 3 Phillips on Ev., 598. In the 1 vol. of Greenleaf’s Ev., sec. 107, referred to by the counsel, for the appellants, the language used by the author is not understood as adverse to its admissibility in a case like the present. His — 627 — doubt is expressed in regard to “ ordinary eases, where pedigree is not in question.” In the recent and very able work of Taylor on the Law of Evidence, the testimony is regarded as proper, and the ground of its admissibility is stated with much force and clearness. In section 517, vol. 1, it is said, “ thus it has frequently been decided that, except in petitions for damages by reason of adultery and in indictments for bigamy, where strict proof of marriage is required, general reputation is admissible to establish the fact of parties being married. In most of the cases, the marriage has been proved by evidence of certain specific facts, such as the parties being received into society as man and wife, being visited by respectable families in the neighborhood, attending church and public places together, and otherwise demeaning themselves in public, and addressing each other as persons actually married. Still, though some of these circumstances are receivable, as amounting to acts of admission by the parties themselves, those, which are merely evidence of the treatment of the parties by third persons, cannot be admissible on any principle that would not equally include the declarations of strangers. The acts, like the words, merely show the opinion entertained by persons not called as witnesses; and though it may be said, that what a person does is usually better evidence of his opinion than what he says, yet this is an observation which goes rather to the weight than the admissibility of the evidence. Accordingly evidence of general reputation in the neighborhood, even when unsupported by facts, will be receivable in proof of marriage.” In Doe vs. Fleming, 4 Bing., 266, the evidence was admitted in an action of ejectment by a party seeking to recover as heir-at-law. Park, J., remarked, “ the general rule is, that reputation is sufficient evidence of marriage, and a party, who seeks to impugn a principle so well established, ought, at least, to furnish cases in support of his position; ” and Best, C. J., added, “ the rule has never been doubted.” In Goodman vs. Goodman, 4 Jur., N. S., 1224, (1858,) the principle, so emphatically announced in — 628 — this case, is fully recognized and affirmed by the Vice Chancellor. He says, “ on the question of reputation of marriage the law was well settled in the case of Doe vs. Flemming, 4 Bing., 266.” In Lessee of Banert et ux. vs. Day, 3 Wash. C. C. Rep., 243, the evidence was admitted, and it was held that it was no objection that the witness, who deposed to the general reputation, was not a member of the family. The doctrine is also recognized in Sellman vs. Bowen, 8 G. & J., 54; Ex parte Taylor, 9 Paige, 617; Clayton vs. Wardell, 4 Comstock, 230. In Spedden vs. Patrick, 2 Swabey & Tristram, 170, (Jur. Dig. of 1861, p. 83,) the rule is correctly laid down, and as there stated is in accordance with our own views. It is there said that “ evidence by a witness of reputation of marriage is admissible so long as it appears to be a general reputation; so soon as it appe'ars, however, on cross-examination or otherwise, that the witness is speaking from information given him by some individual, even of the existence of a general reputation, such evidence is merely hearsay, and as such is inadmissible.” The cases relied upon by the appellants’ counsel have been carefully examined, and they are not in conflict with the authorities above cited. They are either cases in which the question of marriage is not directly in issue, or in which the proof offered was inadmissible upon the ground of its being merely hearsay. In Stein vs. Bowman, et al., 13 Peters, 209, so strongly urged in the argument on behalf of the appellants, the testimony rejected by the Court, was that of a witness, who was introduced to prove that he had heard, in Hanover, Germany, “from many old persons of whom he inquired, that the plaintiff was the brother of Nicholas Stone, deceased.” It will be readily perceived that the question there presented, and to which the reasoning of the Court is confined, was wholly different from the one involved in this case. The evidence was clearly hearsay, and the Court regarding it as such held it to be inadmissible — not coming within the lim — 629 — ited rule admitting from necessity, hearsay evidence in cases of pedigree. After a very patient examination of the numerous authorities cited in the argument of this case, we have concluded that general reputation in regard to marriage may be proved by the testimony of a witness speaking from his own knowledge of the existence of .such general reputation, except in cases of adultery or bigamy, in which strict proof is required. In reference to the position that general reputation, even if admissible to prove marriage, is not admissible to negative a presumption of marriage from cohabitation, it may be said, that the evidence is not admitted upon the ground that the public has an interest in proving a marriage, but upon the ground of a public interest in the question of a marriage between two parties. It is admissible as a fact, to show whether or not a marriage exists. When a question is propounded to a witness its legality cannot be made to dejrend upon the affirmative or negative character of his answer. It must, therefore, follow, as argued by the appellants’ counsel, “ if such evidence is competent to prove marriage, it is competent in disproof of marriage.” Upon these views of the law this case will be decided; — and there is therefore no error in the Court below in admitting the testimony, objected to by the appellants, in the second and third exceptions. The evidence offered in the first exception and ruled out by the Court, was afterwards admitted under the agreement of counsel, which the appellants repudiated in their first oifer, and they have had the benefit of it before the jury. They have therefore sustained no injury, and the question raised by this exception having become a more abstraction, tire ruling below even if it appeared to be erroneous, will not be reversed. We do not perceive anything in the fourth exception which can entitle the appellants to a reversal. The testimony, to the admission of which they had only reserved an exception, was by permission of the Court withdrawn by the defendant before the bill of exceptions embodying it was presented, before the — 630 — prayers were submitted, and before the counsel of either party had gone before the jury. The exception is to the permission of the Court allowing the testimony to be withdrawn. Under the law, as above announced, it is probable that the testimony was admissible, but whether admissible or not, it being withdrawn and 'the jury directed not to consider it in making up their verdict, we cannot see that any harm resulted to the appellants, or any error was committed requiring the intervention of this Court in their behalf. The fifth exception was abandoned at the argument. The sixth exception presents for consideration the prayers offered on both sides. The first prayer of the defendant correctly lays down the law in the case, and is sustained by the views we have expressed in regard to the admissibility of evidence of general reputation. The evidence of a previous marriage of Elizabeth Parlett to one Parlett, and his surviving her, upon which the Second prayer of the defendant is based, was admitted without objection. The evidence relied upon by the appellants to establish a marriage between Boone and Elizabeth Parlett, raised a presumption only of such marriage, and did not amount to strict proof. The province of the jury was to determine upon the facts before them, whether or not such a marriage had really existed. If Elizabeth was the wife of Parlett, and he survived her, she could not have contracted a valid marriage with Boone. This prayer was therefore properly granted, and the fifth, sixth, fifteenth, sixteenth and eighteenth prayers of the plaintiff, presenting substantially the converse, were properly refused. The fourth prayer of the plaintiff extends the law to its utmost verge, even where there is strict proof of marriage, but is not applicable to a case like the present, in which a presumption only of marriage is raised by the proof. The eighth prayer, in view of all the evidence in the case, could not have been granted, arid there being no evidence in the record upon which the seventeenth prayer is based, it is unnecessary to examine the question sought to be raised by it. The law was most liberally stated for the appellants by the — 631 — Court below in granting, with the consent of the defendant, their first, second, third, seventh, ninth, tenth, eleventh, twelfth and thirteenth prayers. The instructions granted fully covered the law in the case, and the judgment below must be affirmed. (Decided 8th May, 1868.) Judgment affirmed.