Van Storch v. Griffin , 71 Pa. 240 ( 1872 )

The opinion of the court was delivered, by

Williams, J.

The record of the divorce obtained by the plaintiff’s husband in the Supreme Court in New York, offered in evidence by the defendant, was clearly inadmissible. It was not certified as directed by the Act of Congress of the 26th of May 1790, nor was it proved as a foreign record by other evidence. The act provides that the records and judicial proceedings of every state shall be proved or admitted in any other court of the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. Under these provisions it is held that the certificate must be given by the judge, if there be but one, or if there be more, then by the chief justice or presiding magistrate of the court from whence the record comes; and he must possess that character at the time he gives the certificate. A certificate that he is the judge that presided at the trial, or that he is the senior judge of the courts of law in the state is insufficient: Lothrop v. Blake, 3 Barr 483; State of Ohio v. Hinchman, 3 Casey 483; 1 Greenl. Ev. § 506. The record offered by the defendant in this case does not purport to be certified by the chief justice or presiding magistrate, nor does it show that the justice, by whom the certificate was given, was the sole judge of the court. On the contrary, the record shows that there were other justices of the cburt by whom the orders preliminary to the final decree were made. There was then no error in rejecting the record on account of the insufficiency of the certificate. But if it had been properly authenticated, it would not have been competent evidence to establish the alleged adultery of the plaintiff, or her incapacity to enter into a marriage contract with the defendant. When the action for divorce was instituted the plaintiff was a resident of Pennsylvania, and the decree was obtained against her without service of process or actual notice of the institution and pendency of the proceedings. The decree that it shall not be lawful for her to marry again until her husband, from whom she was divorced, shall be actually dead, agreeably to the statute of New York, though it may be valid and binding on her in that state, can have no extra-territorial effect. She was as free to marry in this state as if no such decree had been made. Besides, when the defendant made the alleged promise, the plaintiff had been divorced from her former husband by a decree of the court below which had been affirmed by this court; and by our laws she was as capable of entering into a new marriage contract as if she had always been sole. As her maraiage with the defendant would have been valid here, it would be treated as valid everywhere: Phillips v. Gregg, 10 Watts 158; and therefore, it would be regarded .as valid in New York, notwithstanding the decree, made in conformity with the statute of that state, forbidding her marriage during the lifetime of her former husband. Even if the plaintiff and defendant had been residents of the state of New York, and had come into Pennsylvania and been married here, with the express purpose of evading the law of New York, and then had returned and continued to reside there, the marriage would have been recognised and treated as valid by the courts of that state: Story’s Conflict of Laws, §§ 89, 123, 123 a; 2 Kent’s Com. 91, 93; Medway v. Needham, 16 Mass. 157; West Cambridge v. Lexington, 1 Pick. 506; Putnam v. Putnam, 8 Id. 433; Haveland v. Halstead, 34 New York (7 Tiffany) 643.

But there was error in rejecting the defendant’s offer to prove that the general character of the plaintiff for chastity in 1869, and previous to that time, was bad. The evidence was not offered in bar of the action, but in mitigation of the damages. As the contract of marriage is founded in mutual confidence and affection, and necessarily involves the character of the parties for chastity, it would seem to follow that in an action for its breach the plaintiff’s character in this respect must necessarily be put in issue. But if the law be otherwise, as was said in Leckey v. Bloser, 12 Harris 401, the evidence was clearly admissible in mitigation of damages, as the authorities abundantly show: 1 Greenl. Evid., § 54; Sedgw. on Damages 388; Foulkes v. Sellway, 3 Esp. 236; Baddeley v. Mortlock, 1 Holt 151; Irving v. Greenwood, 1 C. & P. 350; Bench v. Merrick, 1 C. & K. 463; Boynton v. Kellogg, 3 Mass. 189; Johnston v. Caulkins, 1 Johns. Cases 116; Willard v. Stone, 7 Cowen 22; Palmer v. Andrews, 7 Wend. 142; Kniffer v. McConnell, 30 New York (3 Tiffany) 285; Burnett v. Simpkins, 24 Ill. 264. The ground on which the evidence is received, as said in Johnston v. Caulkins, is, that the action is brought not only to recover compensation for the immediate injury occasioned by the breach of the promise, but also damages for the loss of reputation which must necessarily depend on the conduct of the party both before and after the injury complained of. Whether the previous bad character of the plaintiff, if unknown to the defendant when he made the promise, would constitute a defence to the action, is a question not presented by the record, and under the pleadings and evidence in this case could not properly be raised. The only defence set up to the action by the defendant is, that he did not make the alleged promise, and if he did, as the jury have found, he must have known from the acts of lewdness to which he testifies, if he tells the truth, that the plaintiff’s character for chastity was bad when he made the promise. But the evidence, though it was not offered as a bar to the action, and would have constituted no defence to it under the circumstances, should have been allowed to go to the jury in mitigation of damages ; and for the error of the court in its rejection the judgment must be reversed and a new trial awarded.

Judgment reversed, and a venire facias de novo awarded.