
    Forney against Hallacher.
    forX"r¿" the deciarafendant, that tasTmarrtécf’ to the plaintiff, know*edse,of that fact, he had her dfSched1'*1 h?r> "P? b? lenTe hi proof °fa’ghee mal"
    In Error.
    THIS action was brought by the plaintiff in error, in the Court of Common Pleas of Lancaster county, against the defendant in error, for criminal conversation with the plaintiff’s wife. Several bills of exceptions were taken to the °pinion of the Court, in refusing to admit testimony offered by the plaintiff in proof of the marriage, the only material one which,was founded on the rejection of evidence of declarations 7 ° by the defendant, that he knew Susannah Forney was ried to the plaintiff, and that with full knowledge of that fact, he seduced her affections, and debauched her ; that he lived with her in a state of adultery, and begat her child, which child was born alive.
    Hopkins, for the plaintiff in error.
    The confession of a party without oath, is evidence, because in its nature, nothing is more satisfactory. Longenecker v. Hyde, 6 Binn. 1. This rule hás been considered, upon the authority of Morris v. Miller, 4 Burr. 2057, as not extending to an action for adultery. The decision in that case was, that a marriage in fact must be proved, and that acknowledgment, co-habitation and reputation, were not sujp,dent to maintain the action. Lord Mansfield would not define what might or might not be evidence of a marriage in fact; and surely an explicit confession, is strong evidence of a marriage, though perhaps not sufficient,'alone, to support the action. If, however, by the law of England, as deduced from the case of Morris v. Miller, such evidence cannot be received, the state of society in this country, which is essentially different from that of England, should introduce another rule. Destitute of the means by which marriages are there capable' of being established with comparative ease, a plaintiff in this country, would frequently find himself surrounded by such difficulties, in this respect, as almost to secure impunity to the defendant.
    In aggravation of damages, at least, the evidence ought to have been received, and the circumstance of its having been offered before a marriage de facto had been proved, was n© objection to it, for the Court has no right to prescribe the order in which testimony shall be given.
    Wright, for the defendant in error.
    The rule that the confession of a party is evidence against him, is not universal, for in addition to the action for adultery, which the case of Morris v. Miller, distinctly decides to be an exception, the confession of the obligor that he executed a bond, cannot be proved without calling the subscribing witness. Morris v. Miller is directly to the point, as to the necessity of proving a marriage in fact; and in 1 Selw. N. P. 19, the testimony of some person present, or a copy of the register, are pointed out as the modes of proof. The necessity of such proof, has not been considered as inapplicable to this country. In Fry v. Derstler, 2 Yeates, 278, a marriage in fact was proved, though no opinion was given on the point in question ; but in Fenton v. Reed, 4 Johns, 52, the authority of Morris v. Miller was distinctly recognised. Nor is the argument derived from the difficulty of procuring positive proof, so strong as is contended. For where a marriage is celebrated before a magistrate, it may not only be proved, by one of the twelve witnesses who were present, but by an exemplification of the register, which it is necessary to have made. Act of 1700, Purd, Dig. 428. There was no reason, therefore, in the present case, for the admission of secondary evidence.
    To aggravate the damages, the evidence was equally objectionable. Proof of marriage was indispensable as a preliminary step, before which nothing would be given in evidence in relation to damages.
   The opinion of the Court was delivered by

Gibson J.

The question is supposed to depend on the authority of Morris v. Miller; in which it was held, that proof of actual marriage was requisite in contradistinction to proof of co-habitation, reputation, and other circumstances from which a marriage might be inferred. That case, for every thing decided, in it, is good authority ; for nothing is more certain, than that to support an action for criminal conversation, there must have been an actual marriage. But it is quite another thing to say, that such a marriage shall be proved only by the oath of an eye witness to the marriage ceremony. We at once feel the good sense of the rule that excludes the mere reputation of marriage, which always arises from the declarations cir actsvof the plaintiff himself; but how a defendant’s unqualified and positive acknowledgment of a marriage in fact, can be excluded on any principle or rule of evidence, I am at a loss to discover. For take it, that the action is, as it was considered by Lord Mansfield, in the nature of a criminal prosecution: is not a voluntary and explicit acknowledgment of any fact charged, if made when it was conceived to be to the prejudice of the party, always competent evidence against a defendant indicted of a felony or misdemeanour ? In bigamy, such a confession of the first marriage is thought, by Mr. East, competent to go to the jury. 1 East, P. C. 470. But Lord Mansfield, in delivering the opinion of the Court in Morris v. Miller, certainly did not in express terms decide, that an acknowledgment of the marriage by the defendant, was not evidence to go to the jury, for as much as it was worth. He seems to have more particularly had in view, the question of the competency of co-habitation, and reputation of marriage, drawn from the plaintiff’s own acts : yet that seems strange, for the counsel made the competency of the defendant’s acknowledgment, a principal point in the argument. It seems, however, from a statement of the case in Bulk N. P. 28, (where it appears that the defendant being asked “ where is major Morris's wife?” replied, “ in the next room,”) that what the defendant had said, was considered as an acknowledgment that the lady went by the name of Morris’s wife: not that she had actually been married to him. But still the mind is at a loss for a well founded objection to the competency of the evidence ; for the meaning and extent of the acknowledgment, depended on all the circumstances taken together, and were evidently proper for the consideration of the jury. The acknowledgment was after the fact of seduction, and might strictly be said to have been made to the defendant’s own prejudice, and to have been so conceived by him at the time. The same view of the case is substantially taken in 2 Phill. Ev. 115, where a conclusion is drawn that an acknowledgment of the marriage by the defendant, is perfectly competent, although in many cases it may, according to circumstances, be of little weight.

But Were the rule different in England, circumstances peculiar to this country, would.require it, in some degree, to be relaxed. The boundless field for enterprise in the new. States that are continually forming, renders the habits of the people of America, essentially those,of migration ; and beside, no inconsiderable portion of the population is made up of emigrants from abroad ; many of whom are married when they come here. The witnesses’to marriages celebrated here, are, in the usual course, soon dispersed over this extensive country; and neither their testimony, nor that of the witnesses to marriages abroad,, can ordinarily be had, except at an expense that puts it beyond the reach of all whose circumstances are not above mediocrity. We have no parish registers in Pennsylvania; and even if we had, the same difficulty would still be found.in procuring proof of the identity of the persons named in the register. We have in fact, nothing which answers to the mode of perpetuating the evidence of marriages under Stat. 26. G. II. c. 33; and this is often a cause of serious difficulty, particularly to the children of foreigners who have married here; which ho power but that of the Legislature can remove. These, in pursuing the-right of succession abroad, are sometimes embarrassed with the want of documentary evidence of pedigree, which would have been readily obtained had they been born in any country in Europe. The Courts, however, should give every facility- consistent with justice, in proving marriage. In Chambers v. Dickson, 2 Serg. & Rawle, 475, it was well remarked by the Chief Justice, that in establishing, rules of evidence, arguments from inconvenience have great weight; and that we must pay great attention to the situation of our own country, which is not, in all instances, adapted to regulations that are very proper in other countries. To say that an action .for criminal conversation could not be sustained without proving the marriage by a witness who was present af the ceremony, would be to grant an almost unlimited license to inflict this species of injury with impunity..

This is the only point submitted, and I am of opinion, that the'judgment be reversed.

Judgment reversed, and a venire facias de novo awarded.  