Young v. Foster

A marriage may be proved by the evidence of cohabitation, where the woman is supplied with goods during the cohabitation on the credit of the husband. Greenleaf’s Evid. 27, 207. In such cases the evidence is conclusive. The woman has acquired a credit by being held out to the world as a wife, and he who has thus enabled her to obtain credit in his name cannot be permitted *118to deny his liability for the goods purchased, as that would operate as a fraud upon the vendor.

Other authorities carry the principle still farther, and hold that cohabitation and reputation are sufficient evidence of marriage in all cases except in prosecutious for bigamy and adultery, and actions for damages for crim. con. See 3 Cowen & Hill’s Phil. Ev. 1147.

In cases where no credit has been given by reason of a holding out, the evidence is not conclusive, but may be rebutted.

There are some authorities, however, which hold, (and it is contended in this case,) that such evidence is not admissible except where a credit has been given; and we have considered the question as one of principle, disconnected from the direct authorities upon it.

If cohabitation and reputation are such evidence of a marriage that tradesmen may act upon that evidence, and deliver articles to the reputed wife, it has of itself some force and effect to prove that a marriage actually exists. If it were not so, no person could be authorized to act upon such a state of facts.

If it be conclusive evidence against the husband in certain cases, it may well be evidence for him, prima facie at least. It has of itself the same significance in his hands as in those of another. The fact that a party relying upon it has parted with his goods, has no tendency of itself to prove the marriage. It only shows that the husband should not be permitted to contradict the evidence which has been offered to prove it.

Again: If it be evidence against the husband, because it has some tendency to show that a marriage in fact existed, it is evidence against those claiming under him. And there seems to be no good reason why it should not be evidence when adduced by the wife or any other person. It is evidence, because of its tendency to prove the fact itself, being the usual result of that fact.

*119Possession is evidence of title, whether of real or personal property, because, as a general rule, it accompanies the title, although there are. many exceptions to this.

So, acting in an office without opposition is prima facie evidence of a right so to act, &c.

Were not the authorities so strong it might well be questioned whether this evidence of cohabitation and reputation ought not to be admitted in cases of crim. con., and in prosecutions for adultery and bigamy, for the simple reason that it has a legitimate tendency to prove the fact. If larceny, and robbery, and murder, may be proved by circumstantial evidence, the enquiry naturally arises why cases of crim. con. &c. may not be so also. It is very clear that they may except in the matter of proof of the marriage. And it is not easy to perceive why an exception should be made in favor of defendants in such cases. If they have nothing better to rely upon for a defence than the non-existence of a marriage, they certainly could not complain of being put to show it, after prima facie evidence had been adduced on the other side.

Judgment for the plaintiff.