Benner v. Fowles , 31 Me. 305 ( 1850 )

Shepley, C. J.

In the case of Dickenson v. Davis, 1 Stra. 480, in an action brought by husband and wife, for assault and battery upon the wife, an offer was made to introduce testimony under the general issue, that the man had a former wife still living ; and it was insisted, that the pJea not only denied, that he beat the woman, but that it also denied, that he beat the plaintiff’s wife, yet it was excluded by Pratt, C. J., who held, that it could have been received only under a plea in abatement.

To a personal action, by husband and wife, a plea, that they were never joined in lawful matrimony, would not be good either in bar or in abatement. It should deny the fact of their marriage. Norwood v. Stevenson, Andr. 227; Alleyn & ux. v. Grey, 2 Salk. 437. In the latter case it was decided, that a marriage de facto was sufficient, and whether legal or not, was not material.

Exceptions sustained, verdict set aside, and new trial granted.