Tebbets v. Hapgood

Perley, C. J. The husband is bound to maintain his wife suitably, and according to his circumstances in life, while they cohabit; and if they separate by mutual consent, and he make no provision for her, she will carry with her authority to pledge his credit for her maintenance. Clancey on Husband and Wife 28; Pidgin v. Cram, 8 N. H. 351; Allen v. Aldrich, 9 Foster 78. And so if the husband turn the wife out of doors, without fault on her part, she carries a like credit with her to charge the husband for her support. Clancey 28; Allen v. Aldrich, 9 Foster 78. And the burden of proof is on the husband to show that he has made other suitable provision for the wife, or that he has turned her away for sufficient cause. Pidgin v. Cram, 8 N. H. 351; Allen v. Aldrich, 9 Foster 73. The instructions of the court on the nature of the evidence required to prove the marriage, and on the liability of the husband for the wife’s maintenance, appear to have been entirely correct. By the 24th printed rule of the court, “ where oaths are administered, or depositions are taken abroad, to be used in this State, by a person acting as a justice of the peace, notary public, or commissioner, and the oath is certified upon any paper to be used in evidence in this State, the fact that the person has signed his name in either of the said capacities, and has affixed [422] his seal, where one is required, to the deposition or caption, or other paper offered in evidence, will be received as primd facie evidence that he is legally empowered so to act.” The ruling of the court, admitting the deposition taken in New-York, was according to the rule, and correct. The court have power to determine all matters of fact necessary to decide interlocutory questions raised on trial. The Court of Common Pleas, on the evidence before them, decided, as matter of fact, that the witness was wife of the defendant, and that her deposition was therefore inadmissible. The court was no more bound to hear the testimony of the woman, who, the evidence satisfied them, was the defendant’s wife, than the testimony of the defendant himself. We do not undertake to decide that the court could not have heard the testimony of the defendant’s wife, or the testimony of the defendant himself, on a question of fact like this ; but we think there is no ground to disturb the verdict because the court exercised their discretion the other way and rejected the evidence. Judgment on the verdict.