Tholey's Appeal ( 1880 )

The judgment of the Supreme Court was entered February 24th 1880,

Per Curiam.

In civil cases, reputation and cohabitation are admitted as evidence of an actual marriage, not as constituting themselves a legal marriage. If it were not so, there would be no reason for the recognised distinction between civil and criminal cases. The admissions of the defendant even in a criminal case, are admissible to prove an actual marriage. When, however, we have the testimony of one of the parties as to the terms of the contract, and that shows that there was no contract by words in presentí,, all other evidence on the subject is of no importance. Here the appellant testified, that the decedent had said to her privately, and in the absence of witnesses, “ he will claim me as his wife, take care of me and the children.” This certainly was no contract of marriage. Bicking’s Appeal, 2 Brewst. 202, was a case quite as strong as this of cohabitation, partial report, conduct and admissions of the man, and yet it was not held by this court sufficient to establish a marriage. We are of opinion, that upon the evidence, the decree of the learned court below was right.

Decree affirmed and appeal dismissed at the costs of the appellant.