
    * Commonwealth versus Simeon Littlejohn and Margery Barbarick.
    Upon an indictment against two persons for lascivious cohabitation, one of the parties be'ing married, such marriage must be proved by the record of the clergyman, or by witnesses present at the ceremony.
    This was an indictment against the defendants for lewdly and lasciviously associating and cohabiting together, the said Margery being alleged to be the wife of Thomas Barbarick. At the trial, the Solicitor-General offered to prove the marriage by the testimony of a sister of the said Thomas. She testified that, about twelve years since, the said Thomas and Margery left the witness’s house for the declared purpose of going to the house of a clergyman, about two miles distant, in order to be by him joined in marriage ; that, after an absence sufficient for the purpose, they returned, declaring that they were married ; and that they lived together as man and wife, having several children, until a year since, when the husband was committed to the state prison. The jury having found the defendants guilty, a new trial was moved for, on account of the admission of the said evidence. And it was resolved by the whole Court, that the evidence was insufficient. It was not the best which the case admitted. If these persons were married, there must be better evidence of the fact. It could be proved by the record of the clergyman, or, at any rate, by the testimony of persons actually present. The verdict was accordingly set aside, 
    
    
      
      
         Quære whether, as the allegation was no otherwise material but as being ue scriptrve of the person intended, the proof of marriage was 'not sufficient. — Vide 3 Starkie, Ev. 1580. — Sull's case, Leach, 1005. — Mary Graham’s case, Leach, 619.— State vs. France, Overt. R. 434. — 2 Phil. Ev. 286, 7th Land. ed.
    
     