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plied to railroads. In addition to the part denominated roadbed the roadway includes whatever space of ground the company is allowed by law in which to construct its roadbed and lay its track."

GUNPOWDER.-Fireworks are not "gunpowder." Tischler v. California Farmers' Mut. Ins. Co., California Supreme Court, November, 1884. The court said: "It remains to be considered whether the fireworks kept by the plaintiff rendered void the policy under that provision of it prohibing the keeping or use on the premises of 'gunpowder.' Defendant introduced no testimony tending to show of what the fireworks were composed. They may be composed of various combustible materials-usually, we believe, of preparations of gunpowder, sulphur, and some other inflammable material or materials. But although gunpowder may be, and usually is, one of the constituents of fireworks, it by no means follows that 'fireworks ' are 'gunpowder.' The latter is a mixture of salt petre, sulphur and charcoal, separately pulverized, then granulated and dried.' It was the mixture called gunpowder which, along with phosphorus, camphene, gas and chemical oils, the plaintiff was, by the policy in question, prohibited from keeping or using on his premises without the written consent of defendant, under penalty of rendering the policy void."

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themselves.' This exposition of reasonable doubt is strenuously objected to by the counsel for respondent. This definition is substantially in the words of Lord Tenterden in a capital case long ago and has been frequently used by judges since. See 3 Greenl. Ev. (13th ed.), § 29 n. Of this definition Mr. Bishop, in section of Criminal Procedure before cited, says: If there were no doubt of its accuracy, it might in some circumstances, to some minds, be helpful; yet on the whole it is less clear than the phrase it would explain.' But its correctness is denied by five or six of the State courts. Still it has been approved by as many other courts. See cases cited by Mr. Bishop. See also Howser v. State, 5 Ga. 78. Standing alone, the phrase seems to be rather an inadequate and unsatisfactory definition. The trouble with it is that with all men their own af fairs do not necessarily receive the same consideration which they should bestow as jurymen upon the in terests of others. But in the case at bar other definition of reasonable doubt was added. The further instruction was that a reasonable doubt is a doubt arising in the mind for which some fair, just reason can be given.' This the jury could very well understand. The other phrase is too much objected to by many respectable courts to commend its adoption into judicial use. The rule of reasonable doubt was itself settled upon to rid the law of a great variety of loose and confused definitions and phrases which had been from time to time adopted by different judges to express the judicial idea."

REASONABLE DOUBT.-In State v. Rounds, 76 Me. 123, it is said: "Mr. Bishop (1 Crim. Proc., § 1094) says: "There are no words plainer than reasonable doubt, and none so exact to the idea meant. Hence some judges, it would seem, wisely decline PLYING.-A vessel never in the State except ocattempting to interpret them to the jury. Negative casionally to receive or discharge cargo, is not "plydescriptions may be safe, and perhaps helpful; as ing in waters of the State." City and County of that it is not a whimsical or vague doubt or conSan Francisco v. Talbot, 63 Cal. 485. The court said: jecture, not an impossibility, * * 666 but it is a "Plying,' when used in the connection that it is reasonable doubt.' It is not an unreasonable doubt. here, is a nautical phrase, which is defined by WebThe very term implies that there may be doubts not ster as follows: 'To make regular trips; as a vessel reasonable or rational. It cannot be a merely pos- plies between the two places.' It might well be sible doubt, for any thing relating to human affairs urged that a vessel making regular trips between may be in some way subject to possible doubt. It any port in California and some port outside of Caliis such an actual and substantial and well-founded fornia, was 'plying in part in the waters of this doubt as would be entertained by a reasonable and State.' But can that be properly said of a vessel conscientious man—such a doubt that the reason for which sails out of a port outside of this State 'to it can be examined and discussed.' In State v. various ports and countries in the regular course of Reed, 62 Me. 129, the following was decided to be a commerce, transporting lumber and other freight,' correct definition: It is a doubt which a reasonaand touching at the port of San Francisco tranble man of sound judgment, without bias, preju-siently in the course of her voyages, and 'only long dice or interest, after calmly, conscientiously and enough to take in and discharge cargo?' 'Plying' deliberately weighing all the testimony, would en- implies regularity, and is not the term used to extertain as to the guilt of the prisoner.' It is not press the character of the irregular and transient enough to establish merely a probability of guilt. visitations of a ship to a port in the course of her The rule requires that the guilt shall be estab-voyage to various ports. In that case a vessel is lished to a reasonable, but not an absolute, demon- said to touch at each of the ports which she visits. strative or mathematical certainty. * A vessel plies between two places-she may touch In the present case the learned judge who presided at many." at the trial went still further toward the outer circle of judicial limits, and said to the jury that the law only requires that degree of certainty in the minds of jurors before rendering a verdict of guilty, as would exist in their minds in coming to a conclusion on matters of grave interest and importance to given them by persons in authority.

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MILK. This includes skimmed milk. Lane v. Col-
The London

lins, Q. B. Div., December 16, 1884.
Law Journal says: "All language has a tendency to
deteriorate, but that is no reason why respectable
words like 'milk' should have a push down hill
This is what

years of the commission of the offense there were no houses near this spot, and when Brighton was a fishing village whole regiments of soldiers used to bathe there at the same time; that at the time the offense was committed there was a row of houses erected on the cliff, from the windows of which the defendant might be distinctly seen as he undressed; and when Brighton grew up, that which was before a place where bathing could take place without any observation became a place where it could not so take place, and the lord chief baron says: 'Nor 18 it any justification that bathing at this spot might a few years ago be innocent. For any thing that I know a man might a few years ago have harmlessly danced naked in the fields beyond Montague House, but it will scarcely be said by the learned counsel for the defendant that any one might now do so with impunity in Russell square. Whatever place becomes the

has happened in the case of Lane v. Collins, noted in this week's Notes of Cases. The Adulteration Act, 1875, requires under penalties that articles of food sold shall be of 'the nature, substance and quality' of the article demanded, and Mr. Justice Day and Mr. Justice Mathew decide that when 'milk' is asked for the statute is sufficiently complied with if skimmed milk is supplied-that is to say, milk sixty per cent deficient in butter-fat. Skimmed milk, they lay down, is the milk of commerce, but the question is whether it is the milk of language. We venture to maintain that 'milk' means the milk of the cow, and that those who want cow's milk do not use a negative and ask for 'unskimmed milk.' The impetus now given to the decline of language in the interests of commerce may carry us far. If we ask for 'coal,' we are not entitled to coal as it comes from the pit, but must be satisfied with dregs from which, in the words of the play, all the knob-habitation of civilized men, there the laws of decency bly ones' have been picked out. If we ask for strawberries, we must put up with a basket of leavings with a few big fruit at the top. If we ask for wine we must, on the authority of those learned judges, be content to drink-horrescimus-the claret of commerce."

MANUAL LABOR.—In Morgan v. London General Omnibus Co., Ct. App., 13 Q. B. Div. 832, it was held that an omnibus conductor is not engaged in "manual labor." Brett, M. R., said: "He does not lift the passengers into or out of the omnibus; it is true that he may help to change the horses, but his real and substantial business is to invite persons to enter the omnibus, and to take and keep for his employers the money paid by the passengers as their fares; in fact he earns the wages becoming due to him through the confidence reposed in his honesty."

Here 18

must be enforced.' That appears to be exceedingly
good sense, and to be a guiding statement of the
law which may fully guide us in this case.
a place which persons, though they may be legal
trespassers, do go upon, and no one interferes with
them. In a place therefore where the public go
without interference, a man takes seven or eight lit-
tle girls and exposes himself to them. I am of opin-
ion that the prisoner exposed himself indecently in
a public place."

PRESUMPTION OF MARRIAGE.

I.

N many cases, in which the question of the exist ence of the marital relation between two parties is presented, it is found impossible to adduce direct evidence of an actual marriage. It then becomes important to determine what other evidence is competent upon the point, and what facts and circumstances will suffice to create a presumption of marriage. What facts will justify a court or jury in inferring as a matter of fact that a valid marriage contract has actually been made between two persons is a question that appears to be involved in a considerable obscurity and uncertainty, owing to the diversified circumstances under which that question has been presented in different cases, and also to the different phases of litigation in which it has been before the courts. The same rules do not obtain in all legal proceedings in which the fact of a marriage becomes material. In some proceedings, as in criminal prosecutions for bigamy or in civil suits for criminal conversation strict proof is required. The marriage can be established by only direct evidence. In other proceedings greater latitude is allowed the party on whom it is in cumbent to prove a marriage, in both the quality and the quantity of the evidence he must produce to sustain the burden of proof resting upon him. The want

PUBLIC PLACE.-In Reg. v. Wellard, C. C. Res., 51 L. T. Rep. (N. S.) 604, it was held that a conviction of indecent exposure of the person in a public place was valid, although the place was one to which the public had no legal right of access. Coleridge, C. J., observed: "There is a difficulty to my mind certainly in giving an affirmative definition as to what is a public place, but I am by no means certain that the publicity of the spot where the offense takes place has any thing to do with it. This however is clear, that what is a public place will vary from time to time; that is to say, that a place may be a public place at one time for the purpose of having an offense committed in it, and may not be a public place at another time for that purpose. The question is whether at the time the offense is committed the place is a public place in the natural and ordinary sense of the term. In Rex v. Crun-of harmony between the adjudications on this branch den, 2 Camp. 89, McDonald, C. B., points out in a short, and if I may say so, good judgment, the obvious sense of what I have been endeavoring to give as my opinion. There it appeared that on a Sunday afternoon the defendant had bathed opposite the East Cliff at Brighton, undressing and dressing himself upon the beach; that till within a very few

of jurisprudence is however more apparent than real. A careful review and analysis of the reported cases on the subject will eliminate from them much of this seeming conflict.

With the exception of prosecutions for bigamy, adultery and incest, and suits for criminal conversa

tion, and possibly one or two other proceedings which thorities all agree that cohabitation and reputation are will be hereafter more particularly referred to, the au

sufficient facts on which to warrant a finding of marriage. 1 Bish. on Mar. and Div., §§ 434, 435, 436, 437, 442, 443, and cases cited; Betsinger v. Chapman, 88 N. Y. 499.

her

first

On principle it would seem to be the correct doctrine, that such evidence of marriage is competent in only those proceedings in which from the nature of the case it is impossible to produce direct and positive proof. This consideration appears to have governed the court in Collins v. Collins, 80 N. Y. 1. The ques tion of the existence of a marriage arose on an application for alimony in an action for divorce. It ap peared that at the time plaintiff and defendant were married, plaintiff had a husband living. There was no evidence of an actual marriage with defendant after the death of the former husband. The court refused to grant the application for alimony on the ground that the marriage had not been established, saying at page 10: "The onus however is upon the plaintiff to establish with at least a reasonable degree of certainty that she is the wife of the defendant, and it would seem that she should produce the best evidence in her power. She is a competent witness to prove the fact of marriage, and if any new marriage contract was entered into between and the defendant, after the death of her husband, she should have alleged it." The doctrine of this case should have universal application in all proceedings in which it is possible to prove the marriage by the testimony of one or both of the alleged married parties. But this is far from being true. In numerous cases it has been held that marriage may be shown by cohabitation and repute during the life of the very persons whose marital relations are in dispute, or during the life of one of them. It may be proved in this manner in an action brought by husband and wife jointly. Crozier v. Gano, 1 Bibb, 257; Hammick v. Bronson, 5 Day, 290; Boatman v. Curry, 25 Mo. 433. So in actions against husband and wife, Pettingill v. McGregor, 12 N. H. 179; Jenkins v. Bisbee, 1 Edw. Ch. 377; Newburyport v. Boothbay, 9 Mass. 414. So where a woman seeks as widow to recover dower, or as widow claims to inherit her alleged husband's property. Young v. Foster, 14 N. H. 114; Sellman v. Bowen, 8 Gill. & J. 50; Chambers v. Dickson, 2 S. & R. 475; Pearson v. Howey, 6 Halst. 12; Stevens v. Reed, 37 N. H. 49; Fleming v. Fleming, 8 Blackf. 234; Strover v. Boswell, 3 Dana, 232; Graham v. Law, 6 U. C. C. P. 456. So where one sought to recover as heir of his brother during the life of the father. Fleming v. Fleming, 4 Bing. 266.

Where a presumption of marriage has once arisen from a cohabitation, apparently matrimonial, it can be overthrown by only the most cogent proof. Hynes v. McDermott, 91 N. Y. 451, 459; Morris v. Davies, 5 Cl. & Fin. 163; Piers v. Piers, 2 H. L. Cas. 331.

In Morris v. Davies, Lord Lyndhurst said, in speaking of this presumption: "The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive."

In Hynes v. McDermott, the Court of Appeals declared: "The presumption of marriage from a cohabitation apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy. Where there is enough to create a foundation for the presumption of marriage it can be repelled only by the most cogent and satisfactory evidence."

Marriage cannot be established by mere proof of cohabitation and repute, or in fact by any evidence

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short of evidence of an actual marriage in any of the following cases:

In prosecutions for bigamy or polygamy People v. Humphrey, 7 Johns. 314; Clayton v. Wardell, 4 N. Y. 230; S. C., 5 Barb. 214; Case v. Case, 17 Cal. 598; Truman's case, 1 East P. C. 470; for adultery, Wedgwood's case, 8 Greenl. 75; Commonwealth v. Norcross, 9 Mass. 492; State v. Hodgskins, 19 Me. 155; for incest, State v. Roswell, 6 Coun. 446; State v. Roswell, 6 id. 446; and for loose and lascivious cohabitation, Commonwealth v. Littlejohn, 15 Mass. 163; see Hopper v. State, 19 Ark. 143. So in a civil action for criminal conversation, Morris v. Miller, 4 Burr. 2057; S. C., 1 W. Bl. 632; Birt V. Barlow, 1 Doug. 171; Hemmings v. Smith, 4 id. 33; Catherwood v. Caslon, 13 M. & W. 261; Dann v. Kingdom, 1 Thomp. & Cook, 492. Whether in an action for divorce on the ground of adultery the marriage can be established by cohabitation and repute seems to be involved in some uncertainty. But the decided preponderance of authority is in favor of the sufficiency of such evidence. Purcell v. Purcell, 4 Hen. & Munf. 507, 512; Morris v. Morris, 20 Ala. 168; Wright v. Wright, 6 Tex. 3; Trimble v. Trimble, 2 Ind. 76; Harman v. Harman, 16 Ill. 85; Hitchcox v. Hitchcox, 2 W. Va. 435; Burns v. Burns, 13 Fla. 369, 380.

In Collins v. Collins, 80 N. Y. 1, the New York Court of Appeals appeared to favor the doctrine of strict proof. The court refused to apply the rule of proof by cohabitation aud repute. The evidence showed that the parties alleged to be husband and wife had lived together as such from the death of the wife's former husband in 1856 down to 1868. But the court decided that the marriage was not sufficiently proven to entitle the wife to alimony, although it expressly recognized the principle that that fact would have been sufficient to establish a marriage in any other civil proceeding, excepting of course an action for criminal conversation. The court seems to have based its decision on the very satisfactory ground that the wife must prove the marriage by the best evidence within her power; in other words that she must swear to it herself. This principle ought to be conclusive on the point without assigning further reasons for the doctrine. But singular as it may appear, the courts in all the cases above cited have invariably ignored this fatal objection to the doctrine they promulgate. The parties themselves being competent witnesses to prove the marriage, cohabitation and repute are subject to the unanswerable objection that they are not the best evidence of which the case in its nature is susceptible. The leaning of the court in Collins v. Collins toward the rule requiring direct evidence of marriage is shown by the following language; "Although as a gen

eral rule for ordinary purposes, actual marriage may be presumed from matrimonial cohabitation and the acknowledgments of the parties that they are husband and wife, there are cases in which direct evidence of marriage is required. The cases generally mentioned as calling for such direct proof, as contradistinguished from mere proof of matrimonial cohabitation, recognition and general reputation, are prosecutions for bigamy and actions for crim. cou. But many others are mentioned in the authorities, and some of them lay down the proposition generally that direct evidence is required in all criminal or quasi criminal prosecutions, or actions founded on the relation of marriage; and in others it is said that when the violation of the relation of husband and wife constitutes the guilt of the accused, such relation must be proved by direct evidence. * * *The question is too important to render it proper to determine it finally on a mere motion for alimony. The onus however is upon the plaintiff to establish with at least a reasonable degree of

certainty that she is the wife of the defendant, and it would seem that she should produce the best evidence in her power." To same effect Ellis v. Ellis, 11 Mass. 92. The reason that underlies the doctrine of the presumption of marriage from a cohabitation apparently matrimonial, is that the law will presume morality and innocence rather than immorality and guilt. Where therefore the effect of raising a presumption of marriage from cohabitation and repute would, although it would exonerate the parties from the charge of immorality in the particular case, be to involve one of them in an immoral relation with another or render him or her guilty of a crime, the cohabitation creates no presumption, and is therefore no evidence of marriage when standing alone. If it can be shown that during the continuance, or prior, or subsequent to the cohabitation between the parties, one of them cohabited with onother person, the law will not presume that the cohabitation in question was matrimonial, for that would necessarily render the other cohabitation meretricious, unless a legal dissolution of the former cohabitation by death or divorce, can be shown before the inception of the latter. As the law cannot in such cases presume innocence in one case without rendering one of the parties guilty morally or criminally in another case, it will not presume a marriage from either cohabitation. The authorities ou this point are uniform. Breakey v. Breakey, 2 U. C. Q. B. 349, 358; George v. Thomas, 10 id. 604; Chamberlain v. Chamberlain, 71 N. Y. 423.

In George v. Thomas the court decided that the presumption of marriage from cohabitation is rebutted by the woman's having lived with another man in such a manner as to create the same presumption of a marriage with him.

In Chamberlain v. Chamberlain the court held that the inference of a marriage from an apparently matrimonial cohabitation was overcome by the subsequent actual marriage of the alleged husband with another woman during the life-time of the woman with whom he had so lived. Precisely the same doctrine was enunciated in Clayton v. Wardell, 5 Barb. 214; S. C., 4 N. Y. 230; Taylor v. Taylor, 1 Lee, 571; S. C., 2 Eng. Eq. 290; Wheeler v. McWilliams, 2 U. C. Q. B. 77; S. C., 3 id. 165.

The principle that lies at the foundation of this last doctrine is that the presumption of innocence in the one case would render the party guilty of bigamy, and thus the courts would in effect presume a greater guilt than that which they would raise the presumption to obviate. The authorities are numerous to the effect, that in all cases where the consequence of presuming innocence in the particular case is that another guilt, moral or legal of an equal or greater.degree is fastened upon one of the parties, the ordinary rule of the presumption of a marriage will not obtain, but that direct evidence of the alleged marriage must be adduced. Jones v. Jones, 45 Md. 144; 48 id. 391; Poultney v. Fairhaven, Brayton (Vt.). 185; Houpt v. Houpt, 5Ohio, 539; Foster v. Hawley, 8 Hun, 68; see also 1 Bish. on Mar. & Div., §§ 444 to 447; Blanchard v. Lambert, 43 Iowa, 228; Harrison v. Lincoln, 48 Me. 205; Stevens v. Joyal, 48 Vt. 291; Hill v. State, 41 Ga. 484; Williams v. State, 44 Ala. 24.

In Weinberg v. State, 25 Wis. 370, the defendant was indicted for bigamy. To sustain the charge it was necessary to prove a marriage in Prussia. By the law of that country a marriage to be valid must be entered into as a civil contract before a civil magistrate. A religious solemnization of a marriage is forbidden under severe penalties until the contract has been duly made before a civil magistrate. The only evidence of the Prussian marriage was the religious solemnization. This of course was not sufficient of

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itself to establish the marriage; but it was argued that as the performance of the religious ceremony without a previous valid marriage by a civil magistrate would render all concerned guilty of crime, such marriage must be presumed to have been duly entered into before the performance of the religious ceremony, for the reason that the law would presume that those connected with the performance of the marriage were innocent of such crime. But the court refused to be governed by this consideration, and based its decision on this point on the immovable foundation that the law will not presume innocence in one instance where the effect of such a presumption is to involve one of the parties litigant in some moral delinquency or render him or her guilty of a crime. The court said: "Perhaps under the justly liberal rule in respect to proof of foreign marriages in civil suits, it" (the presumption of the innocence of those participating in the religious ceremony) "would be allowed to prevail. But to give that effect in a criminal prosecution would be to overcome the presumption of the prisoner's innocence by the no stronger presumption of the innocence of a stranger, and that in a proceeding in which such stranger was not on trial."

It is not however a rule of universal application that the presumption of innocence will not be raised in every case in which it comes in conflict with another presumption. The doctrine has obtained for a long time, and is sanctioned by all the adjudications on the point, that the presumption of innocence will counterbalance and preponderate against the presumption of the continuance of life of the former wife or husband of one of the parties. Under the familiar rule of the common law the presumption of life continues till the expiration of seven years from the time a person was last heard from. But where one of the parties to a marriage contract has been absent and unheard from for a reasonable time short of seven years, a second marriage by the remaining partner may be sustained by indulging the presumption that the absent party was dead at the time of the second marriage, and the court is bound to instruct the jury that the presumption of innocence may overthrow the presumption of the continuance of life. Senser v. Bower, 1 Penn. 450; Reg. v. Cross, I Fost. & F. 510; Spears v. Burton, 31 Miss. 547; Murray v. Murray, 6 Oreg. 17; Reg. v. Lumley, Law Rep., 1 C. C. 196; Rex. v. Twyning, 2 B. & Ald. 386; Greensborough v. Underhill, 12 Vt. 604; Northfield v. Plymouth, 20 id. 582; Yates v. Houston, 3 Tex. 433; Chapman v. Cooper, 5 Rich. 452; Canaday v. George, 6 Rich. Eq. 103; Hull v. Rawls, 27 Miss. 471.

The question where the presumption of innocence is to prevail is generally a question of fact. Murray v. Murray, 6 Oreg. 17; Reg. v. Lumley, Law Rep., 1 C. C.

196.

In Rex v. Twyning the court sustained the verdict of the jury which upheld a marriage entered into by a woman within a year after the departure of her first husband from the country, and in Rex v. Harborne, 2 A. & E. 540, the court sustained a verdict which found against the validity of a marriage celebrated only twenty-five days after the absent partner of the former marriage was known to be alive.

In Greensborough v. Underhill the court set aside the verdict of the jury which declared void a second marriage entered into two years after the husband of the former marriage was last heard from. But in Northfield v. Plymouth the same court appears to have called in question the soundness of the former decision, because it seemed to have made the question one of law rather than of fact. However the court was clearly right in ordering a new trial in the first case, for the jury were manifestly misled by the charge of the court, and probably would have sustained the second

marriage had they not labored under a misapprehension as to the law of the case.

Where there has been sufficient to create a presumption it is not rebutted by the fact that the parties were subsequently married. Starr v. Peck, 1 Hill, 270; Betsinger v. Chapman, 88 N. Y. 499. The branch of this subject which is involved in the greatest uncertainty is that which relates to cohabitations which are meretricious in their inception. When we are compelled to start with the conceded fact that the commencement of the intercourse was illicit, it is an exceedingly difficult question to determine from the authorities what facts and circumstances, short of proof of an actual marriage, will warrant a court or jury in deciding that the meretricious union no longer exists, but that the parties have in fact become husband and wife. The familiar principle of the presumption of continuance is frequently applied in such cases, and the courts have almost uniformly and universally adjudged that a cohabitation shown to have been illicit in its inception will be presumed to continue illicit until the contrary is clearly established. Badger v. Badger, 88 N. Y. 546; Brinkley v. Brinkley, 50 id. 198; Cunningham v. Cunningham, 2 Dow. 483; Barnum v. Barnum, 42 Md. 251; Post v. Post, 70 Ill. 484; Floyd v. Calrert, 53 Miss. 37; Yardley's Estate, 75 Penn. St. 207; Lapsly v. Grierson, 1 H. L. Cas. 498; Caujolle v. Ferrie, 23 N. Y. 106; Clayton v. Wardell, 4 id. 230; State v. Worthingham, 23 Minn. 528.

What will suffice to overcome this presumption depends largely upon the animus with which the parties formed their illicit connection. Where they have manifested a desire to live in a matrimonial union, and not in a state of concubinage, and during their cohabitation there has been a time when they might lawfully have married, a jury will be justified in finding a marriage from the mere fact of continued cohabitation apparently matrimonial, although it was for some reason meretricious in its inception. The following authorities fully sustain this proposition: Fenton v. Reed, 4 Johns. 52; Van Buskirk v. Claw, 18 id. 345; Rose v. Clark, 8 Paige, 574; Caujolle v. Ferrie, 23 N. Y. 90; Betsinger v. Chapman, 88 id. 487-499; Hynes v. McDermott, 91 id. 451; Holabird v. Atlantic Ins. Co., 12 Am. Law Reg. (N. S.)566; North v. North, 1 Barb. Ch. 241; Starr v. Peck, 1 Hill, 270; Donnelly v. Donnelly, 8 B. Mon. 113; Blanchard v. Lambert, 43 Iowa, 228; State v. Worthingham, 23 Minn. 528; Dickerson v. Brown, 49 Miss. 357; Floyd v. Calvert, 53 id. 37-46; Jones v. Jones 45 Md. 155; Yates v. Houston, 3 Tex. 433-450; Campbel v. Campbell, Law Rep., 1 H. L. Sc. 182, 201, 204, 212, 215; Breadalbane's case, L. R., 1 Scotch Divorce Appeals. 182; De Thoren v. Attorney-General, L.R., 1 App. Cas. 686; In re Taylor, 9 Paige, 611.

Indeed some of the authorities have gone so far as to presume a subsequent marriage against all the probabilities of the case. Among those are Fenton v. Reed, Rose v. Clark, Campbell v. Campbell, De Thoren v. Altorney-General, Breadalbane case, and Donnelly v. Donnelly. The question is so important, and these cases are so unanimous in support of the true doctrine that where the evidence discloses the fact that the parties desired a matrimonial instead of a meretricious connection, the slightest circumstance should be held to afford sufficient evidence on which to predicate a finding of marriage, that the discussion of this question would be very incomplete without a brief review

of them.

In Fenton v. Reed, decided in 1809, the question of marriage was presented under the following circumstances: The plaintiff claimed to be the widow of one Reed. In the year 1785 she was the wife of one John Guest. Sometime during that year Guest left the State for foreign countries, and did not return until 1794; and previous to his return, and before the marriage of his

wife to Reed, it was generally reported and believed that he (Guest) was dead. Plaintiff married Reed in 1792. From the time of his return in 1794 until the time of his death in 1800 Guest continued to reside in the State. Plaintiff, after the death of Guest, cohabited with Reed down to his death in 1806. No solemnization of marriage was shown to have been performed between the plaintiff and Reed subsequent to the death of Guest. The court below decided however that as a matter of fact a marriage had taken place between them after Guest's death .in 1800. On appeal this decision was affirmed, the court saying: "There existed strong circumstances from which a marriage subsequent to the death of Guest might be presumed." The parties cohabited together as husband and wife, and under the reputation that they were such from 1800 to 1806, when Reed died, and the wife during that time sustained a good character in society. GUY C. H. CORLISS.

BANKS AND BANKING NEGLIGENCE-COLLECTION OF DRAFTS.

SUPREME COURT OF THE UNITED STATES, NOVEMBER 24, 1884.

EXCHANGE NAT. BANK OF PITTSBURGH, PA., V. THIRD NAT. BANK OF THE CITY OF NEW YORK.*

A bank in Pittsburgh sent to a bank in New York for collection eleven unaccepted drafts, dated at various times through a period of over three months, and payable four months after date. They were drawn on Walter M. Conger, Secretary Newark Tea Tray Co., Newark, N. J., and were sent to the New York bank as drafts on the tea tray company. The New York bank sent them for collection to a bank in Newark, and in its letters of transmission recognized them as drafts on the company. The Newark bank took acceptances from Conger individually, on his refusal to accept as secretary, but no notice of that fact was given to the Pittsburgh bank until after the first one of the drafts had matured. At that time the drawers and an indorser had become insolvent, the drawers having been in good credit when the Pittsburgh bank discounted the drafts. Held, that the New York bank was liable to the Pittsburgh bank for such damages as it had sustained by the negligence of the Newark bank.

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John R. Emery and Thomas N. McCarter, for plaintiff in error.

A. Q. Keasbey, for defendant in error.

BLATCHFORD, J. The Exchange National Bank of Pittsburgh, Pennsylvania, brought this suit against the Third National Bank of the city of New York, in the Circuit Court of the United States for the District of New Jersey, to recover damages for the alleged negligence of the defendant in regard to eleven drafts or bills of exchange indorsed by the plaintiff to the defendant for collection. The suit was tried before a court without a jury. It made a special finding of facts, and rendered a judgment for the defendant, to review which the plaintiff has brought this writ of er

ror.

The facts found are these, in substance: The drafts were drawn by Rogers & Burchfield, at Pittsburgh, to the order of J. D. Baldwin, and by him indorsed, on "Walter M.Conger, Sec'y Newark Tea Tray Co., Newark, N. J.," and were discounted before acceptance by *S. C., 5 Sup. Ct. Rep. 141, reversing 4 Fed. Rep. 20.

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