Inhabitants of Camden v. Inhabitants of Belgrade

WaltoN, J.

This is a pauper suit, and is a second time before the law court. The question formerly presented was whether a subsequent marriage could be invalidated by circumstantial evidence of a prior marriage; and it was held that it could. Camden v. Belgrade, 75 Maine, 126.

The case has been again tried, and is now before the law court: (1.) On exceptions to the admission of evidence; (2.) On exceptions to the charge of the judge; (3.) On motion fora new trial on the ground that the verdict is against evidence; (4.) On motion for a new trial on the ground of newly discovered evidence.

1. Of the exceptions to the admission of evidence. Witnesses were allowed to testify that in 1854, after ICaherl and Esther A. Craig commenced to live together as husband and wife, she showed them what purported to be a marriage certificate ; and, evidence of the loss or destruction of the paper having been first *209 introduced, oral evidence of its contents was received. It is claimed that this evidence was improperly admitted, because the evidence of the loss or destruction of the paper was not sufficient, and because the witnesses were unable to give the whole contents of the paper, and because the genuineness of the paper was not shown, and because it did not purport to bo executed in an official capacity. Whether the evidence of the loss or destruction of a paper is sufficient to let in secondary evidence of its contents is a question addressed to the discretionary power of the presiding judge; and, in the absence of any apparent abuse of his authority, his decision of the question is not revisable by this court. No such abuse is apparent in this case. And to let in oral evidence of the contents of a lost paper, it is not necessary that the witnesses should be able to state the contents with entire verbal accuracy; it is sufficient if they can state the substance of its contents. Tobin v. Shaw, 45 Maine, 331. In the case cited, in speaking of a letter which she had destroyed, the witness said, " 1 can’t recollect the whole, but can the substance,” and she was then allowed to state what she could recollect of its contents, and the law court held that the evidence rvas properly admitted. And see Com. v. Roark, 8 Cush. 210 . We think the witnesses in this case were able to state the contents of the marriage certificate with sufficient fullness to render their testimony admissible. And the admissibility of such a certificate, or, in case of its loss, oral evidence of its contents does not depend upon the genuineness or official character of the document. It being a settled rule of law that marriage may be proved in civil cases, other than actions for seduction, by reputation, declarations, and conduct of the parties, a paper found in the possession of one of the parties to the alleged marriage, or produced by such party, purporting to bo a marriage certificate, is admissible upon the ground that such a possession or such a production of it is equivalent to a declaration of such party that the facts stated in the certificate are true. As evidence of an implied declaration, or admission, or as an act of one of the parties, such a certificate is admissible without *210 separate and distinct evidence of its genuineness, or that it was given by one acting in an official capacity. Proof of its genuineness, and that it was given by one acting in an official capacity, may enhance its weight, but will-not affect its admissibility. It is admissible without such proof. And if it were not admissible without some evidence of its authenticity, the fact that it is kept and produced by one of the parties as evidence of the marriage, would be sufficient evidence of its genuineness to render it admissible. 2. Gr. Ev. § 462-3 ; 1 Gr. Ev. § 104, et seq.

2. Complaint is made that the rule admitting the declarations of the parties to the supposed marriage was administered too liberally. It is claimed that such declarations are admissible only as res gesta, and when made in the presence of each other. We find no authority for such limitations of the rule. In proof of a disputed marriage in civil suits (other than actions for seduction,) cohabitation, reputation, the declarations of the parties, written or oral, and their conduct, and all other circumstances usually attending the marriage relation and indicative of its existence, is admissible evidence. Its weight of course is for the jury. All the evidence objected to was admissible under some one of these heads, with one exception. One witness was allowed to state that the Craig family was made up of Augustus, Esther, Albert, Horace, Mr. and Mrs. Craig; that they lived on a farm, were good farmers, owned a large farm, and were well off. It is claimed that this evidence was inadmissible, and that the use made of it was mischievous. We think it was admissible. There was evidence that Kaherl had been paying attention to Esther, that he caused his intention to marry her to be published and obtained a certificate of the publishment, that he went to her father’s house with a carriage and took Esther and carried her away and was gone over night with her, and that when they returned they said they were married, and that in about a week from that time he moved her home, and that for ten years or more they lived together as husband and wife, and raised a family of children; and when it is charged that they were not in fact married, that she had consented to leave her home and live with a man as his wife without being married, it seems to us that *211 one of the first things which an inquiring mind would want to- know would be what kind of' a family she belonged to, and what kind of a home it was that she had left. Such evidence, if favorable, would tend to strengthen the presumption of her innocence, and, if unfavorable, to weaken it. We think the evidence was pertinent and legally admissible.

8. Exceptions are taken to the charge. It is claimed that if the evidence relating to the marriage certificate was legally admissible, the judge, in his instructions to the jury, authorized' them to give it greater probative force than it was entitled to ; that the jury must have understood from the charge that they were authorized to find that John Young, a clergyman of the' Methodist church, issued the paper as an official certificate of the-marriage, and that, upon that direct evidence, they might find a legal marriage. We can not find that in his charge the judge-any where stated to the jury that they would be authorized to-find a legal marriage upon the evidence of the certificate alone. He seems to have been very careful not to so instruct them. He instructed them that, if satisfied of the existence of the-certificate, it was a piece of evidence for their consideration, the-weight of which they must determine " in connection with all the evidence in the case.” We do not mean to say that it would have been an erroneous instruction if the judge had told the jury that, if they were satisfied of the existence of the certificate, and that it was in the usual form and signed by one authorized' to solemnize marriages,, they would bo authorized to find a legal, marriage from that evidence alone. It is a sufficient answer to. the objection to say that the charge, as reported, does not. contain such an instruction, and upon this point is quite as. favorable to the plaintiffs as they were entitled to have it.

4. The jury found specially that William O. Kaherl and1 Esther A. Craig were lawfully married in 1854, as claimed by llio defendants. The plaintiffs move to have the verdict set aside on the ground that it is not supported by the evidence. The. motion can not be sustained. Wo think the evidence fully justified the finding.

5. The plaintiffs move for a new trial on the ground of newly *212 ■discovered evidence. This motion can not be sustained for two .reasons. One reason is that the evidence in support of it was :not taken within the time ordered by the court. Another :reason is that the evidence, if it had been seasonably taken, is mot sufficient in the opinion of the court to justify granting ;another trial.

Motions and exceptions overruled. Judgment on the verdict.

Peters, C. J., Virgin, Libbet, Foster and Haskell, JJ., ¡concurred.