
    Overseers of the Poor of the town of Newbury—Ap’lees. vs. Overseers of the Poor of the town of Brunswick—Ap’lnts.
    Orange,
    
      February, 1829.
    An order for the removal of N II, a pauper, his family and effects, from one town to another, is valid as to N H'only, and will be quashed as to the family.
    An agreement to marry made between a man and woman per verba de presentí, followed by uninterrupted cohabitation for several years, though not solemnized according to thelaws of the place where the contract is made, will be .deemed a valid marriage. In the casein question the cohabitation had continued about eighteen years;
    
      This was an appeal from the order of Ephraim B. Stevens and Charles Bale, Esquires, Justices of the peace for the County of Orange, made upon the complaint of the Overseers of the Poor of the town of Newbury, for the removal of “ Nathaniel P. Harriman, his family and effects,” from said Newbury to said Brunswick.
    
    This cause was entered in the County Court, June term, 1827, at which term the appellants filed a motion to quash the order and proceedings of said Justices, for generality with regard to the ward family : and the County Court decided that said proceedings be quashed as to the family. To which decision the appellants excepted ; and the cause was continued to December term, 1828; at which time the parties agreed to the following statement of facts, for the purpose of obtaining the judgment of the Supreme Court:
    “That previous to the 7th day of September, 1807, Nathaniel P. Harriman and Lydia Page, being citizens of Vermont, went into Stanstead, in the Province of Lower Canada ; and, on the day last aforesaid, before one Phinehas Hubbard, then a Justice of the peace in said Province, covenanted and agreed, each with the other, to be and remain husband and wife. In consequence of there being no clergyman present, authorized by law to solemnize marriages, this method was adopted ; and said Justice made a record of the same, but did not declare said Nathaniel P. and Lydia husband and wife ; but informed them that he had no legal authority to solemnize marriages.
    The said Nathaniel P. and Lydia have from said 7th day of September, 1807, to the time of said order of removal, cohabited together as husband and wife; and, if the testimony of said Lydia is admissible to that point, it is also agreed that no ceremony of marriage has ever been had between them, other than the one before said Justice Hubbard. In June 1808, the said Harriman and Lydia moved into the town of Brunswick, in this State, and continued to reside therein throe years next following, without having been warned out; and have ever since resided in the United States. Some time previous to September 8th, 1826, the said Harriman and Lydia, with their children, to wit, Polly, aged 16 years, Sally, aged 9 years, Job, aged 5 years, and James, aged 3 years, came to reside in the town of Newbury; but have never gained a settlement therein. On the said 8th day of September 1826, the said Lydia being sick and in need of assistance, and said Harriman being destitute of property and unable to support her and the children, the overseers of the poor of Newbury, on application of Harriman, furnished the said Lydia with necessaries, and expended' monies for her support, and some of the aforesaid children; but none for the personal support of liar riman.
    
    It is also agreed, that on the 7th day of September, 1807, the statute of 26th Geo. II. was the only law in force in said Province regulating marriages. On the 22d day of March, 1825, an act of the Provincial Parliament of said Province was passed, which declares all marriages, before that time had or solemnized by any Justice of the peace, good and valid in law, fee.
    If the Court are of opinion, from the facts herein set forth, that said town of Brunsivick are liable, then judgment is to be render» ed in favor of said town of Newbury. Otherwise, judgment is to be rendered in favor of the said town of Brunswick”
    
    
      Cushman and Marsh, for defendants. — According to the latest decisions of this Court there seems to be no use in saying any thing of the family in an order of removal ; and when that expression is inserted, is there any propriety in, or effect from, quashing the order as to the family ? For it is clear from all the cases in the books, and from our own decisions, and from the reason of the thing, that if an order were made, and remained not appealed from, directing a man and his family to be removed from such town to such a town, it would not determine the settlement of any one, except the man, his wife and children; and no case is to be found where any greater effect was given to such order. And it is equally clear, that if the order be quashed as to the family, or this expression was not originally inserted in the order, yet if the order remove the man only, still it determines the settlement of his wife and children. And this is settled doctrine both here and in England. It is believed that all the difficulty which has been made in England and here respecting the use of this expression, and quashing the order in part on that account, is worse than useless. We are aware that it has been said, and orders have been quashed, as to the family, on that account, that it might affect the settlement of servants, or of children of the wife by a former husband ; but still no decided case goes any further than that removing the man decides the settlement of his wife and children. And removing the wife or widow of a man, decides also the residence of the husband and children. The whole sum and substance of the doctrine to be elicited from the decided cases on this subject is, that wherever the husband or father is by the order decided to be settled, there the legally married wife and their children, (that is, the children of the husband,) have derivatively their settlement also. And where the order is for the removal of the woman, and such expressions are used in the order that the Court must suppose that the validity of the marriage came, in question, and was adjudicated on, and no appeal is there taken, it determines not only the marriage, but of course the settlement of the husband and children also. Rex vs. Buckswell, 2 Bott, 74. — Burr. S. C. 168. — Rees vs. Buffington, 2 Bott, 74.— Henly vs. Chesham, 2 Bott, 81. — Rex vs. * * *, 2 Bott, 75.— Burr. S. C. 551. And the reason is that it is res judicata ; and the question cannot be again inquired into. But tho removal of a man, or a man and his family, decides nothing only the settlement of the man, and those who derive their settlement from him. And the removal of the wije or widow of such an one does the same, that is, it is supposed to remove the wife or widow of such an one, because she is or was his wife, and, therefore, derives her settlement from him, and, therefore, his settlement and the marriage must have been adjudicated on. And it alike determines the settlement of bis children. But such a removal determines nothing as to the settlement of their servants, or the children of the wife by a former husband, because, inasmuch as the servant does not derive his settlement from the master, or the child from his father-in-law, the settlement of such does not come in question — nor would it any more, it is believed, if the word family were used in the order. Nor is it believed that any case can ba found where it has been decided, either here or in England, that using this word family in an order would have this effect.
    The question intended to be submitted by the parties in this ease is, whether marriage in Canada, as it is stated in the case, determines the settlement of the pauper, Lydia Page, (or Ilarri-man,) and her children, as deriving it from Nathaniel P. llarri-man, the supposed husband and father ? And this depends on the validity of the marriage. If tho marriage is void, the woman is yet single, and the children illegitimate : and tho’ she may have acquired a settlement in Brunswick, in her own right, by three years residence there, and the children by being born there, yet neither the woman nor children can be affected by the order of removal, not being named in the order otherwise than as the family of Harriman. The order was made on the ground that Harriman and his family had become chargeable to Newbury. But the case admits that Harriman had not become chargeable, and it is agreed that the woman and children had become chargeable. The order then must be affirmed or reversed wholly on the ground of the legality or illegality of the marriage ceremony, as stated in the case, which took place in Canada.
    
    It is admitted that the act of parliament of 26 Geo. II. commonly called tha marriaga act, was in force, and the only law in force, on tills subject, at the time this ceremony took place, and so continued till the year 1826. But it is clear, then, that the riage was void, not being in conformity to any existing law from the time it took place till 1826. 2 Bott’s Poor laws, 65, et seq.
    
    In the King vs. Buffington it was decided “ that a marriage “ contracted previous to the marriage act, if the ceremony was not “ performed by a priest in holy orders, and in facie ecclesice, was u null and void, and no settlement can be gained by the woman “ under it.” 2 Bott, 74. — Burr. S. C. 232. — 1 Wils. 74. In the King vs. Hodnet it was decided “ that a marriage between “ two infants by means of a procured license, and without consent “ of either parents or guardians, is void by the Stat. 26 Geo. II. “ c. 33, altho’ both parties are illegitimate, and no settlement can “ be gained under it.” This is cited to show with how much strictness the marriage act was construed in England.
    
    The question must then turn on the validity, or rather the effect of the act of the provincial counsel or parliament of 1826. Whatever may be regarded as the effect oí the act in the province, it is certain it can have no effect here. These parties never were citizens or subjects of the province. They were on 7th Sept. 1807, citizens of Vermont, went into the province at that time, had this pretended marriage, and came back in the next June after, and have ever since resided in the United States. It may be admitted, that if the marriage had been celebrated according to existing laws at the time in the province, it would have-been valid here. But it was then void there, and, of course, here till after the children were all born, and until the rights of the parties in this case were settled and vested here according to the laws of this state. And now can the Provincial act of 1826 alter these rights ? Are these children, which were born illegitimate, now the heirs of JY. P. Harriman; or rather would they be so in case of his death ? If a large estate were pending on this question, would it be pretended that they could hold as heirs ? Can, in other words, the legislature of the Province determine b}'- a retrospective law the rights of persons or property which were never within their jurisdiction; but were always citizens of this state ? Marriages celebrated in a foreign country, agreeably to its existing laws, are valid here by virtue of our laws, and not by virtue of the laws of such foreign country. But if a foreign government, by any retrospective act, can make a marriage, now void, valid here, such marriage does not become valid here, by virtue of our own existing laws, but by the legislative act of a foreign government; in other words, we permit a foreign government to legislate for us.
    
      
      Smith and Berry, for the plaintiffs. — 1. It has been long settled that an order to remove “ A and family,” though it may be bad and quashed as to family, is good as to A, under which he may be removed. 1 Strange, 114, Beaston vs. Scisson. So where an order is made to remove several, and the order is bad as to part, either for some informality, or on the ground that they were not liable to be removed, the order as to them may be quashed, but it will be sustained as to the residue. 2 Burr. Set. Cas. 486, JYo. 154, Rex vs. Preston. — 2 Burr, S. C. 581. — 1 Burr. S. C. 147, JYo. 49. — id. 177, JYo. 63. — id. 202, JYo. 70. —4d. 113, JYo. 73.
    II. The support having been furnished JY. P. Harriman’s family, and the order as to them being quashed, the appellants contend they are not liable.
    If the paupers were legally married, and this fact is here assumed, this point will not avail them ; for there is no principle of law better settled than that necessaries for a man’s family are neces-ries for himself, for whichhe is personally liable. 1 Swift’s Dig. 30, 31, 33, 41. — Con. Rep. 638. — 2 Kent’s Com. 123. It is on this principle that for necessaries furnished an infant’s wife, he is responsible. 1 Esp. 161. — 1 Strange, 168. — Fonb. Eq. 73— Comb, 320, cited in 3 Term Rep. 46. If then JY. P. Harri-man would be liable in the present case for support furnished his wife and children, it follows as a necessary consequence that the appellants are liable.
    III. The paupers were never legally married.
    From reputation and cohabitation a prima facie marriage, at least, is proved ; and if the appellants rely upon the want of a legal marriage, the onus probandi is thrown on them, if it is competent for them to go into evidence of this fact. No other testimony is offered to establish this fact, but that of the reputed wife. But,
    1. The paupers being husband and wife defacto, at all events, and legally such by presumption of law, the validity of the marriage cannot be controverted, especially after long cohabitation. Burr. S. C. 508, JYo. 163, Rex vs. Stockland.
    
    2. The reputed wife ought not to be admitted to disprove her marriage and bastardize her issue.
    3. The policy of the law will not suffer the wife to testify to facts which tend in the least degree, even collaterally, to criminate her husband. 2 Term Rep. 263. — Peake’s Ev. 183, (n. 2.)— 2 Kent’s Com: 149.
    The direct tendency of the wife’s testimony, in the present case, is to render the reputed husband liable to a prosecution for has-tardy, which is in its nature a criminal prosecution. 2 Mitins* Rep. 211. Ifthe policy of the law will not allow the wife to disprove the marriage, the paupers are to be deemed husband and wife; for though the Court should be of opinion that the marriage at Stanstead was not legal, non constat, but that a legal marriage may have been had at some other place.
    4. The act of the Provincial Parliament of Canada, passed March 22, 1825, legalizes this marriage. The law of marriage is a part of the jus gentium, and a marriage, valid by the law of the place where it is made, is valid every where. 2 Kent’s Com. 28. — Crompton vs. Bearcrojt, Bull. JV. P. 114. — 2 Haggard, 443, 444, 428, 433, 412. — 16 Mas. Rep. 157. The act of 1825 declares “ that all marriages heretofore had and solemnized in the District of St. Francis by Justices of the Peace, shall be valid in law and binding to all intents and purpóses.” Under this provision, should the question arise in Canada, the paupers beyond all question would be considered, by the Provincial Courts, as husband and wife. It becomes then the duty of this Court, yielding to that principle of comity which is due from one nation to the laws of another, and to the principles of international law, to hold that this marriage is legalized by the act of 1825. It will not be denied that if the marriage in the present case was legal by the laws of Canada at the time it was consummated, it is legal here. It must follow, then, as a necessary incident to this principle, that if the ratifying act of 1825, would render the marriage between these paupers valid, in case they should remove to Canada, it is valid here.
    No form for the solemnization of marriages is prescribed. If a magistrate, who is authorised to marry, undertakes to act in his official character, that is sufficient, and it is not necessary, in order to render the marriage valid, that he should pronounce them husband and wife. 7 Mass. Rep. 48. In the present instance the case stated, as well as the magistrate’s certificate, shows that he undertook to act in his official capacity, which is all that is requisite.
    5. May not the marriage, in the present case, be considered a marriage per verba de prcesenti, entered into in this state, and consummated here by cohabitation, the evidence of which exists in Canada ? A marriag& per verba de prcesenti is binding by the civil and common law; and such is the law of Europe: and such a marriage would be holden valid in this state, as our statute does not declare those marriages void which are not solemnized according to its provisions. 4 Johns. Rep. 52. — 6Mod. 153. — 2 Salk. 437. — Peake’s Cas. 231. — 2 Kent’s Com. 75,76, 77,78,— Reeve’s Dom. Rel. 196,200,290, — 2 JV. Hamp. R. 268. — 3 Marshall, 370.
   The opinion of the Court was delivered by

Paddock, J.

As it respects the decision of the County Court in quashing so much of the proceedings in this case as relates to the family of Nathaniel P. Ilarriman, the pauper, the Court were correct. The family ought not to have been named, either in the complaint of the overseers, in the warrant to bring Harris man before the Justices, or in the order of removal; and if they were, it was surplusage, and it was well to have it expunged from thei'ecord. But it will be seen, by looking at the 3d section of the statute upon which this prosecudon is founded, (p. 370) that the warrant of removal directs the officer to remove and transport such stranger, with his or her family and effects, (if any ho or she have) on the nearest route, to the place of such stranger’s legal settlement, &c.” and in no other place in the act, is the family spoken gf. It inay be remarked, that what is meant in this act by family, are those, and those only, for whose support and maintenance the law obliges a person, whether male or female, to provide : so that no procedure under this statute is intended, nor can it have the effect, to divide and break up families; but on the contrary, the -town which is obliged to support and maintain the principal head of the family, be it male or female, is also obliged to provide for those who have their residence with such principal.

This case comes before the Court upon a statement of facts, made up by the parties; which are, briefly, that on the 7th day of Sept. 1807, Ilarriman, and one Lydia Page, an unmarried woman, and who is now his reputed wife, went before a Justice of the peace in the Province of Lower Canada, and there covenanted and agreed, each with the other, to be and remain husband and wife ; of which the Justice then made a record: from which time up to the commencement of these proceedings, they have cohabited together as man and wife, and have four children, all of which are now under age, and live with them — That in June, 1808, Ilarriman and the said Lydia removed from the Province of Canada into the town of Brunswick, where they remained the three succeeding years, gaining a legal settlement therein. Previous to September, 1826, they found their way to Newbury, where they have since resided, but not to gain a settlement. At that time Ilarriman being destitute of property, and the woman sick, he applied to the overseers of the poor of Newbury for assistance, who relieved the necessities of the woman and children. In March, 1825, the Legislative Assembly of the Province of L. Canada, passed an act declaring all marriages which had been celebrated in the Province belore dissenting ministers from th« Church of England, and Justices of the peace, to be legal and valid'in law.

There is but one question in the case to be decided, and that is, whether Lydia Page, otherwise Lydia Harriman, is the wife of Nathaniel P. Harriman, so that under the warrant to remove the said Harriman, it being found that his residence was in Brunswick, the overseers of the poor of that town, were obliged to receive and support the said Lydia and her children, as his family.

Admitting that the testimony of the woman is admissible to prove that no other ceremonies of marriage have been had between them, other than those before the Justice, had Harriman and his reputed wife remained in the Province, there is no doubt that the effect of the Provincial act of their Assembly, of March, 1825, would have been to legalize the marriage before the Justice, to every intent: for after the usurpation of Cromwell, the British Parliament found it necessary to pass a similar statute, by which (12 Ch. II. c. 33J all marriages solemnized before justices of the peace, during that period, were declared valid. And what difference it shall make, their removing into this State before the passage of the act, in March, 1825, the Court are not prepared to say, but are strongly inclined to the opinion, that the effect is the same as though they had remained ; for the statute is not intended to operate upon the persons, but upon the record of the Justices, and characterize the transactions before them and the ministers, giving a legal effect to that which was not so at the time, by reason of the 26th Geo. II. and carrying info execution the wishes and designs of the parties contracting. But however this may be, the Court do not find it necessary to decide. To marry is one of the natural rights of human nature, instituted in a state of innocence for the protection thereof; and was ordained by the great Lawgiver of the universe, and not to bo prohibited by man. Yet, human forms and regulations in marriages are necessary for the safety and security of community ; but those forms and regulations are to be within the reach of every person wishing’to improve them ; and if they are not, other forms and customs will be substituted ; and such was the case in this instance.

Before the days of Pope Innocent, III. solemnization of marriages in Churches was not known. After the agreement toco-habit, the man led the woman to his habitation, which was all the ceremony then in use ; and though by the English law such a marriage would not entitle the parties to those legal privileges they would enjoy if married according to the forms required by their statute, that is, the man to be tenant by curtesy and the woman tc have her dowry, &c.; yet in Hayden vs. Gould, 1 Salk. 119, it was ruled, that a woman and her issue might claim, though the man should not, a legal privilege given by law, when he had not entitled himself to it, by a conformity to the matrimonial law.

It must, however, be admitted that great convenience is expe- % 7 ^ A nenced from the celebration of nuptials before constituted authority, for it not only furnishes proof of the best'description, but the preservation of it is directed by statute, and easily obtained when needed. But the law treating the mutual agreement of the parties as the marriage, regulating only the manner and form of celebrating it, and preserving the evidence thereof, admits proof other than a copy of the registry, or record of the magistrate, or witnesses — the declaration of the man or woman, the continued understanding of iriends, and cohabitation, as evidence of the fact. Such was the case in Leader vs. Barry, 1 Esp. Ca. 352. —Read vs. Passer, Peake’s Ca. 230. — Kay vs. Duchesse de Pienne, 3 Camp. 123. — Fenton vs. Reed, 4 Johns. 52, and the celebrated case of Hervey vs. Hervey, 2 Bl. R. 877.

It has been contended by the appellees, that the proceeding before the Justice of peace in the Province, did constitute a mar-riageper verba de prcessenti between Harriman and Lydia Page. Of that there is little doubt. It was declared by C. J. Holt, in Jesson vs. Collins, 2 Salk. 437, that a contract per verba de pr asentí was a marriage, namely, Imarry you — You and I are man and wife. And again, he holds similar language in Wigmore’s case, p. 438. And in Fenton vs. Read it was determined by the Court that a contract of marriage made per verba de prcesenii, amounts to an actual marriage, and is as valid as if made in facie ecclesice. And in Reed vs. Passer, Ld. Kenyon says “ that an agreement of marriage between the parties,peí- verba deprasen-tí was ipsum matrimonium.” And as neither our statute, nor that of the 26 Geo. II. declares marriages void which are not consummated according to the provisions of them, no sound reason can be offered why the covenants and agreements of marriage between Harriman and Lydia Page, entered into before the Justice, per verba de prasenti, followed by cohabitation uninterrupted to the time of the order of removal, should not be deemed as valid to every intent as though made before the altar ; especially as it is viewed both in this State and in England in no other light than as a civil contract. — 1 Blk. Com. 433.

' It was a sufficient marrying to bind him to support her, and treat her as his wife ; and cohabiting with her for years, would bind him to support her children. And it follows that the town which is legally bound to support Harriman, in case of poverty, i» bóünd tó provide for all those who have a matrimonial or nat-'«ral right to be supported by him. But there is another objection to this defence, too formidable to be overcome ; and that is, the long period of time those persons have cohabited together, being more than twenty years, reciprocally discharging every duty, we are bound to suppose, which the relation of husband and wife imposed upon them ; surrounded with a family of small children. Is it our duty — does the law require — does the interest of society demand, or respect for the matrimonial institution permit, that in this sideway manner, the legality of the marriage should be gone into at all? The Court are clearly of the opinion that it cannot. The harmony of the two is not thus to be disturbed, nor the children made liable to be bastardized. Therefore, in pursuance of the agreement of the parties, the order of removal is affirmed, and the town of Newbury recover their costs.

Smith and Berry, attornies for appellees.

Marsh and Cushman, attornies for appellants.

Judgment for appelees.  