¶1 The marriage of the plaintiff’s intestate with the defendant, she having a husband “living at the time,” was, under the plain provision of The Code, Section 1810, not merely voidable but void, when the rites were performed and the parties undertook to contract in 1870, notwithstanding the fact that the presumption had arisen that the former husband was dead. But plaintiff’s intestate being now dead, it was contended that the courts are *58 now prohibited, under the proviso, from formally declaring the contract null. In order, however, to bring the case within the prohibition, it is not sufficient to show simply that one of the parties has died, but it must appear further that issue was born during the cohabitation. The latter requirement is not met by the proof; indeed, it is admitted that there was no issue of the bigamous marriage.
¶2 We are not at liberty, therefore, to enter upon the discussion of the doctrine upon which counsel for defendant rested his argument. Whatever might otherwise have been the effect of the presumption of the husband’s death, the facts bring this case within the language of the law referred to, but fail to bring it within the exception. Technically, the marriage -was none the less a bigamous one because the statute shielded the defendant from prosecution. After the presumption of the husband’s death had been rebutted by proof that he was in fact alive, while the law protected her from the prosecution and punishment to which she might otherwise have been liable, it could not be construed consistently with the provisions of the other statute, rendering the marriage void, to give her any of the rights incident to widowhood.
¶3 There was error in the ruling of the court below. The iudgment of non-suit is vacated and a new trial granted.
¶4 New Trial.