Case v. Case

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.

[600]This is an action for a divorce on the ground of adultery. The plaintiff alleges that she was married to the defendant in May, 1844, and that she lived with him as his wife from that time until July, 1856. It appears that in August, 1857, the defendant married another person, and the adultery complained of is charged to have been committed with this person. The marriage with the plaintiff is denied, but the defendant admits that he lived with her for several years, and treated her as his wife. The only evidence of this marriage consists in the fact of the cohabitation of the parties, and their reputation as married persons. The question is as to the sufficiency of this evidence.

We think that under the circumstances an actual marriage should have been proved. The general rule that in actions of this nature the marriage may be inferred from the cohabitation of the parties, we do not understand to be applicable. We cannot indulge this inference without presuming that the defendant has been guilty of the crime of bigamy, and the fact that it involves such a presumption is sufficient to repel it. In the absence of criminative proof, t is never to be supposed, as a matter of legal presumption, that a person has violated the criminal law; and the presumption in favor of innocence, says a learned writer, is not confined to proceedings instituted with a view of punishing the supposed offense, but holds in all civil suits where it comes collaterally in question. (Best on Pre. Ev. 64.) Bishop in his work on marriage and divorce, (Sec. 324) says: “ Where parties are cohabiting together as man and wife, under the reputation of being married, that universal principle of law that all persons are presumed innocent until the contrary is shown, comes in and says they shall be prima fade considered to be married, and not to be living in-an unlawful intercourse.” But in the next section he proceeds as follows: “ On a libel for divorce, in which adultery is alleged, the marriage cannot be sufficiently inferred from the matrimonial cohabitation of the parties to the suit, with the reputation of being married persons, which follows, as the shadow, such cohabitation; because the same benign presumption of law which would infer therefrom an actual marriage, in order to prevent the inference that an offense had been committed, would strive, in like manner and for the same reason, to infer a marriage [601]