The opinion
WHEELER, District Judge,
(dissenting.) In 1853 Blasius M. Ohesebrough, afterwards known as George M., was about 35 years old, a son of a widow of large means, and had some property of his own. and was a. brother of the defendant Charles A. Ohesebrough. Josephine Oregier was about 10 years old, and the daughter of a widow. Both were horn, and all lived, in the city of Row York. They met at a dancing school in Bond street, in a building where he had rooms, and she stayed with him in his rooms that night, and lived with him some afterwards before any pretense of marriage. On the 18th of August, .1854, they registered as husband and wife, with servant, at the Everett House, and lived there as such, excepting an absence of a few days, until October 6th. They lived together at other hotels and boarding houses, in the same way, after-wards, and had a carriage and driver, ,and drove about the country somewhat. About September 20, 1855, they drove to Saratoga, and registered at a hotel there as husband and wife. A child was pre *840 maturely born to them there, which lived but a few days, and was buried in a lot in the cemetery there, which he procured. They continued to live together some part of the time at hotels and boarding houses in the same manner, and wex;e to some extent spoken of as husband and wife among acquaintances. In the summer of 1857, she went to her mother’s, and on October 9th the plaintiff was born there, and was their child. I)r-. Groves attended her in her confinement, and made return of the birth, as required by law, to the registry, with the name of the father as “George Chesebrough,” and of the mother as “Josephine Chesebrough.” Her mother, on April 6, 1858, commenced a suit against him for board of himself and family for the six months previous, and, on appearance by him, recovered judgment for $175. At times, when drunk, he was very violent, and treated her with great abuse. At some time in 1858 she suddenly left him and her child, and went, without his knowledge, to Charleston, S. C., and lived with another man there. Dr. Groves commenced suit in December, 1858, against him, for attendance upon her when the plaintiff was born, and recovered judgment therein upon default. On February 4, 1859, her mother commenced suit against him for loss of services by 'her seduction resulting in the birth of the plaintiff, and, on default and inquest of damages, recovered judgment therein for $2,500. He tried to find her, but died in 1806 without having heard from her. This suit' is brought in behalf of the plaintiff Leonora Augusta as his' heir. Her mother was present at the examination of witnesses in behalf of the plaintiffs, and testified that in driving about they drove to Baltimore, and were married there in 1854, before going to the Everett House to board. Afterwards, she testified in behalf of the defendant that this was false,.that they were never married, and never understood that they were, but that they agreed to be married when his mother should die. The circuit court found and held that there was no marriage, and dismissed the bill. The assignment of errors upon this appeal relates principally to this ruling.
There is no presumption of legitimacy arising from parentage. Blackburn v. Crawfords, 3 Wall. 186 . But cohabitation as husband and wife is presumed to be lawful, and legitimacy may be found from it, although, if it was illicit in the beginning flic presumption is rebutted until a marriage is shown which would change its character. 2 Greenl. Ev. 462; Jewell v. Jewell, 1 How. 219 ; Gaines v. Hew Orleans, 6 Wall. 642 , The mother’s testimony that there was a marriage remains in the case, although retracted, and is strongly corroborated by their holding themselves out a!s husband and wife, and living together openly as such at respectable hotels and boarding houses, and particularly by their recognition of each other as married parents at the time of the death and burial of their first child. She could destroy the force of her testimony, so far as it rested upon her truthfulness, but could not take away from it the support of this corroboration. Her first testimony was consistent with their acts and conduct, but the last Was not. The theory of a marriage is further supported by the registry of the birth, for the mother would not become Josephine Chesebrough but *841 by marriage; and it is further strongly supported by the judgments against him for her board as a pari; of Ids family, and for the physician’s services at 1he birth of the plaintiff, for he would be liable for neither if she was not his wife. This theory is also somewhat supported by the reputation of a marriage among their relatives, friends, and acquaintances, hut this is met by proof of reputation to the contrary. The proof of reputation could be done away with by counter proof of the same sort; but proof of a marriage in fact by' direct evidence, or by acts and conduct of the parties, could not be disproved by evidence of reputation to the contrary. 1 Greenl. Ev. § 107. Mr. Justice Davis, in Gaines v. New Orleans, 6 Wall. 706 , said:
“Concede it is true'that Clark behaved so as to cause his most intimate friends to disbelieve the fact of ínairiaíte; that ho held himself out to the world as a single man, and by public repute, after the time of the alleged marriage, lived with Kulinie, ostensibly, not as his wife. Still, the case of the complainant is not weakened.”
There, as here, the cohabitation began meretriciously, and ended in desertion of the father by the mother, and unlawful cohabitation by her with another man. As marriage is, in law, but a civil contract between the parties, resting upon their consent, although most often celebrated by religious ceremony, the open and public registration of their true names, as they would be if married, in noted and respectable hotels of the city and in the neighborhood, within the city of their former homes, and of the homes of their rela lives and friends, and living there, in sight of all, as if married, would he direct manifestation of the consent upon which the contract would rest, and stronger evidence of its existence 1han any negative reputation, which would necessarily be founded upon mere hearsay. He was dissipated, a frequenter of bawdy houses, and an associate of lewd women, hut the mother of the plaintiff appears to have been more and different to him 1 lian any other woman. TRepu tation of his marriage would not be likely to spread to these places, or among these women, and Ms reputation of being single appears largely from these sources. He made conveyances as single, and had a draught, of a will made, which did not mention her or ihe plaintiff, after she had left him, which goes to show that he then held himself out as single; and administration was applied for on his estate as if he had died single, which goes to show that he was, to those making the application, then reputed to be single. The record of this suit for seduction seems to be admissible as a declaration by her mother which would tend to show family understanding that there was no marriage, but the judgment, was not between such parties as to be at all conclusive of anything. This is all reputation, and not direct proof, and is to be considered in connection with other proof of reputation, in arriving at: what the extent and pervasiveness of the reputation of marriage or no marriage' actually was. When all this is considered, it shows, as found by the circuit court, a reputation too much divided to prove a marriage. It is also too much divided to disprove a marriage otherwise shown, if admissible at all for that purpose. Their acts and conduct to *842 wards each other, corroborating and making plain her testimony that there was a marriage in fact, remain. That the registration of their names as, and calling themselves, husband and wife, was necessary for admission to decent places, and that men and women do so for the purpose of living together at such places, is said in argument; but such use of their true names in such and so many prominent places, in the near vicinity of their relatives and acquaintances, and in the city of their own birth and home, does not seem attributable to that mere purpose, and no such custom is proved, or appears to be sufficiently general to be taken judicial notice of. That men live double lives under different names in the same city, and that men and women register at places as husband and wife, under other names, for the purpose of living together there temporarily; may be assumed; and that such holding themselves out would have no tendency to prove that they were husband and wife, but rather the contrary. The difference between using false names and true ones wholly changes the effect of the use as proof. And this purpose of living together temporarily does not explain their traveling together under their true names, as husband and wife, just before the birth of their first child, and burying it as theirs in that relation. Although her first testimony, in view of her last, would be entitled to no weight, alone, and these acts and this conduct might not be sufficient to establish a marriage, against her last, her first furnishes a key to, and is more consistent with, all these, than the last, and helps out and confirms the proof of a marriage in fact. That both treated the bonds of matrimony lightly would not show that they did not, lightly or otherwise, enter into them. The greatest argument against the presumption arising from this holding each other out as husband and wife, and cohabitation, is founded upon the supposition that the cohabitation began meretriciously. But this rests wholly upon her-testimony. Take that out, and the first cohabitation shown was that at the Everett House, where they had registered and lived together openly as husband and wife. But her testimony cannot be taken out, for it is in, and must be considered, first and last, and all together, according to its consistency with itself and other proved facts. When so considered, that part which states that they were married while away, just before going to the Everett House, seems more consistent with their going there, and living together as they did, there and elsewhere, long enough to bring forth two children in due course, than her subsequent statement that this was false, and that the marriage was to take place when his mother should die. And to hold that acting as husband with a woman means what it purports, as assuming other capacities does, and legitimatize issue, seems more wholesome than to interpret it away by comparison wiijb. false pretenses of others in similar respects, and bastardize issue. Furthermore, as laid down by Sir William Blackstone, any contract made, per verba de praesenti, and in case of cohabitation per verba de futuro, was deemed a valid marriage. 1 Bl. Comm. 465. This is so laid down by Chancellor Kent, (1 Kent, Comm. 87,) and by Professor Greenleaf, (2 Greenl. Ev. § 460.) The circuit court for the *843 district of South Carolina so charged the jury in Jewell v. Jewell, 1 How. 219 ; and the supreme court, being equally divided, did not reverse this ruling. The testimony of the mother as to the agreement: to marry is not retracted or contradicted, and is corroborated by the same circumstances as her testimony of the marriage. If tins be true, and that be law, the plaintiff is legitimate.