
    Chambers against Dickson executor of Chambers.
    In an Action of dower, cohabitation and reputation, especially of an. ancient date are good evidence to be left to the jury, to prove a marriage.
    In Error.
    THIS was an action of dower unde nihil habet brought by Elizabeth Chambers, and the parties went to trial in the . Court of Common Pleas of Indiana county, On the issue of ne unques accouples, ode. The plaintiff offered to prove “ cohabitation and reputation of marriage with Moses Cham- “ bers, for ten years before the year 1776but the evidence was rejected by the Court. The plaintiff excepted to the' Court’s opinion, and the Court sealed a bill of exceptions,.
    
      Kelly, for the plaintiff in error.
    The only question is, whether, on the issue of ne unques accouples, reputation of the marriage be sufficient. We contend, that it is sufficient in all civil cases but actions for criminal conversation. In "an action of..crin».,con.and in an'indictment for bigamy actual marriage must be proved: in other cases generally, reputation is sufficient. 3 Black. Com. 139, 140, In Morris v. Miller,
      
      , it Is: declared by-Lord -M.a-nsrield, that reputation is sufficient,-except in cases 'of bigamy and, crim. con. Criminal conversation is the only- civil,case’where proof of actual marriage is neCessary. Day. 174. On the issue of ne unques aceouples, a writ goes to the bishop to certify, whether marriage or not. Woodeson, 433. Marriage is prove-able by-reputation, except in cases of bigamy or crim. con. 4 Johns. 53. Swiff s Ev. 140. Marriages of sectaries were proved by cohabition and reputation -in a case of removal of a pauper. Esp, Ni. Pri. 62, 63. In Pennsylvania no law requires a register: and it is impossible in many cases to prove actual marriage. Many of our inhabitants come from foreign countries.
    
      Forward, contra,
    There can be no certificate of" a bishop required in this country : but I contend, that where marriage is directly in issue it must be directly proved, and not by circumstances. Narr. for enticing away and harbouring the wife of plaintiff; actual marriage must be proved by register, or by some person present. 8 Went. Plead. 419. Defendant pleads coverture; actual marriage must be proved. Peake’s Evid. 281. The plea of ne unques decouples admits the fact pf.marriage : but-denies its legality. Allen et ux. v. Gray.
      
       The plea of never lawfully married, is tried by the' country where not in dower or other action, where the marriage is naturally in issue. Bassett v. Morgan. The argument ab inconvenienti has weight: but it has the same weight in bigamy-and the act.ion-of crim. con. ’ . Where a suit is brought against a man for a debt contracted by. goods furnished to his wife, the plaintiff is not, conusant of the marriage: and there is reasoh for his not being held to prove it strictly.
    
      
       4 Burr. 2058.
    
    
      
       2 Salk. 437.
      
    
    
      
       1 Lev. 41.
    
   Tilghman C. J.

(After stating the case.) The ground Of the Court’s -opinión -was, that proof of the actual marriage was necessary. In England, when an issue -of this kind is joined between persons of the established church, it is decided by a certificate from the bishop of the-diócése, in which the marriage is alleged to have been celebrated. But where the parties are dissenters from the established religion, the trial' is by jury. Whether in that case proof of the actual marriage is required, does ■ not clearly appear by the cases which have been cited in the argument. It is not pretended, however, that proof of actual marriage has been held .necessary by any decision in this state. We feél ourselves at liberty, therefore, to consider the point on principles of general convenience and expediency. There is no reason in the nature of the thing, why a woman should not receive dower on such proof of her marriage as should be satisfactory to the jury. We have no established church. A certificate from the bishop, therefore, is out of the question. We have no law compelling the keeping of- a register by all persons who perform the marriage ceremony. Our marriages are celebrated sometimes by clergymen, sometimes by justices of the peace and sometimes before witnesses, without the intervention of clergymen or justices. Many of our citizens are emigrants from foreign countries where they were married. Many marriages take place in parts of our country but thinly settled. To hold a woman, therefore, to proof of her actual marriage might be productive of very great inconvenience, without any advantage. For what advantage is-there, in rejecting evidence which fnight be perfectly satisfactory to the jury of the fact of marriage l In the present instance, the marriage, if there was one, must have taken place nearly fifty years ago. The probability is, therefore, that no person, present at the marriage is now in existence. In establishing laws of evidence, arguments from inconvenience .have very great weight: so great indeed, that a pressing inconvenience has in many cases produced an exception from the general rule, as appears particularly with regard to trade and commerce, which have been greatly extended since the rules of evidence were first established. We must pay regard to the situation of our own country, which is not in all instances 'adapted to the regulations that might be very proper in other countries. Taking all these things-into consideration, I am of opinion, that in the action of dower,'circumstances short • of positive proof, are proper to be given in evidence. CWu?-bitatjon and reputation, especially of an ancient date, are very strong circumstances, and ought in this case to have.gone to the jury. I am, therefore, of opinion, that the judgment should be reversed, and a venire facias de novo be awarded. It is proper to mention, that our late brother Judge Brackenridge, who heard the argument, concurred in this opinion.

Yeat^s'J. was'sifcfe and absent.

Gibson J. concurred.

Judgment reversed, and a venire facias. de novo awarded.  