
    Benner & ux. versus Fowles & ux.
    
    
      la a suit wherein the plaintiffs sue as husband and wife, it is not allowable, in the defence under the general issue, to prove that she was lawfully married to a former husband, who was living at the time of her second marriage.
    In such an action, a plea that the plaintiffs had “ never been joined in lawful matrimony,” would not be good, either in bar or in abatement.
    
      It seems, that a marriage die facto, whether legal or not, might be sufficient for the maintenance of suGh an action.
    Exceptions from the District Court. Slander.
    The general issue was pleaded.
    The defendants offered testimony tending to prove, that the female plaintiff had been lawfully married to a former husband, who was living at the time of her second marriage.
    To the admission of such evidence, the plaintiffs objected, but it was received.
    The Judge ruled that if such former marriage, to a husband living at the time of her marriage to the other plaintiff, was proved, the action could not be maintained. Yerdict for the defendant.
    
      Lowell and Reed, for plaintiffs.
    
      Ruggles and Kennedy, for defendants.
   Shepley, C. J.

In the case of Dickenson v. Davis, 1 Stra. 480, in an action brought by husband and wife, for assault and battery upon the wife, an offer was made to introduce testimony under the general issue, that the man had a former wife still living ; and it was insisted, that the pJea not only denied, that he beat the woman, but that it also denied, that he beat the plaintiff’s wife, yet it was excluded by Pratt, C. J., who held, that it could have been received only under a plea in abatement.

To a personal action, by husband and wife, a plea, that they were never joined in lawful matrimony, would not be good either in bar or in abatement. It should deny the fact of their marriage. Norwood v. Stevenson, Andr. 227; Alleyn & ux. v. Grey, 2 Salk. 437. In the latter case it was decided, that a marriage de facto was sufficient, and whether legal or not, was not material.

Exceptions sustained, verdict set aside, and new trial granted.  