
    Asahel Divoll versus Joab Leadbetter.
    A levies an execution against B upon land of C, his reputed wife; afterwards, in trespass qu. cla. against B, upon the issue of soil and freehold in C, A proves a marriage de facto between B and C: — held, that B was estopped to show, in avoidance of the marriage, that he and C were within the prohibited degrees ot kindred.
    Trespass for breaking and entering the plaintiff’s close in Weston. The defendant pleads, first, the general issue, which is joined j and, secondly, thát the soil and freehold were in Abigail Hagar, and that he entered as her servant and by her command. The plaintiff traverses the allegation in the second plea, of soil and freehold in A. Hagar, and issue is joined thereon.
    On a case stated it appeared, that the plaintiff derived his title to the locus in quo under an execution in favor of one Lovewell against the defendant, extended on the 24th of April, 1823, upon the rents and profits for four years, and a lease from Lovewell to the plaintiff, dated the 29th of the same April, under which he entered but was dispossessed by the defendant.
    In support of the extent, the plaintiff proved that the defendant has cohabited for many years with A. Hagar, who has had two children, of whom the defendant is the reputed father, and that on the 10th of May, 1807, the banns of matrimony between them were published in Weston ; and it was agreed, that the defendant has heretofore alleged, that he had been lawfully married to A. Hagar in Rhode Island, and has exhibited a certificate of the fact in due form; that the defendant is uncle of A. Hagar by her mother’s side ; that they have generally been reputed to have been married for several years ; that they and Lovewell have always been residents in the town of Weston, or in the neighbourhood; and that it was generally known to those who were acquainted with the defendant and A. Hagar, that he was her uncle.
    If it was not competent to the defendant to show the invalidity of the marriage by reason of the consanguinity above mentioned, judgment was to be rendered for the plaintiff; if otherwise, for the defendant.
    The case was argued this term at bar, and afterwards in writing.^
    ' Hoar and Jl. Bigelow, for the plaintiff,
    contended, that the evidence was inadmissible, for that the defendant should not be allowed to defeat the plaintiff’s title by alleging his own turpitude. They cited Alleyne et ux. v. Grey, 2 Salk. 437; Bac. Abr. Marriage and Divorce, A; Bull. N. P. 136; Etherington v. Parrot, 1 Salk. 118, note; Bac. Abr. Trespass, E, cites 1 Jon. 147, and Latch, 144.
    
    
      T. Fuller, contra,
    insisted, that the defendant was not estopped from giving in evidence the insulated fact of con sanguinity between himself and A. Hagar. This is not proving his own turpitude, for he does not admit either the cohabitation or the marriage. The plaintiff introduces evidence of cohabitationbut the defendant denies'that fact, and to obviate what the jury might consider as proved, though denied by him, he offers, and has a right, to prove consanguinity. The maxim relied on by the plaintiff is much restricted in its application, there being many cases in which a party is allowed to allege his own guilt. Jordaine v. Lashbrooke, 7 T. R. 601; Farrar v. Caldwell, 5 Mass. R. 395. If the fact of Lovewell’s knowledge of the consanguinity shall be material, the Court will either infer it, or allow the defendant an opportunity to prove it.
    
      
      April term 1827, at Concord.
    
    
      
       See 2 Stark. Ev. (5th Amer. ed.) 314; Roberts v. Roberts, 2 Barn. & Ald 367
    
    
      
       See 2 Stark. Ev. (5th Amer. ed.) 9,10.
    
   The opinion of the Court was read as drawn up by

Parker C. J.

The evidence is sufficient to prove a marriage de facto, and indeed a lawful marriage, if, the parties were legally capable of making that contract. By our statute, however, the marriage, being within the prohibited degrees of kindred, is null and void ; but the question is, whether the defendant can set up the illegality as a defence to the action.

If he can, this strange consequence will follow, that he may continue in the open violation of the law, enjoying all the marital rights, and yet, when attempted to be made subject to the duties or legal burdens of the connexion, he would defend himself by setting up its illegality. This would be contrary to morality, as well as the policy of the law. If this marriage be void for the cause supposed, then 'the defendant has no right to the possession or to the profits of this estate, and yet he would defend himself against the claim of another by showing this very illegality. If a man’s mouth is ever stopped in court, it should be when he undertakes to claim a right or an exemption on account of his guilt or infamy.

Judgment for the plaintiff. 
      
       A marriage de facto, though not de jure, is valid to most intents, as relates to personal matters and causes. Dumaresly v. Fishly, 3 Marshall Ken.) 370; 2 Stark. Ev. (5th Amer. ed.) 18.
     