Emerson v. Shaw

¶1The plaintiff seeks to recover damages for the loss of service and expense occasioned by an assault upon his wife by the defendant. The evidence shows that the marriage ceremony was performed in May, 1867, and that they have lived together as husband and wife since that time, acknowledging each other as such, and being generally reputed as such, but the evidence also shows that Mrs. Emerson had been previously married to one Pillsbury, who is still alive, and from whom she has never been divorced. Her subsequent marriage with Emerson was, therefore, absolutely null and void — 2 Kent Com. 79; and it plainly follows that he cannot maintain this action. The relation of husband and wife, which is so essential in order to maintain this action, does not exist. It is true that the statutes make acknowledgment, cohabitation, and reputation evidence of marriage; but there is no ground for arguing that such evidence is conclusive. It is evidence to be received, but subject to be explained and rebutted, as any other evidence is. To parties capable of contracting marriage, it affords an opportunity to supply proof of marriage when the witnesses of the marriage ceremony may be dead or unknown; but to hold that evidence that either party has been previously married, and that the marriage had never been dissolved, cannot be received, would be lending the assistance of the law to conceal the crime of bigamy. To adopt the language of the defendant's counsel, — "The statute does not authorize bigamy, nor offer a premium and cloak to adultery by way of estoppel."

¶2Exceptions overruled. *421