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particular fright occasioning the injury. In Gordon v. Railroad, evidence that other horses were frightened by the same or a like use of a locomotive as that which caused the injury, was admitted; and in Rowell v. Railroad, supra, evidence that locomotives scattered sparks and coals was decided to be competent and relevant on the question whether the particular fire was set by sparks or coals from a locomotive. In State v. M. & L. Railroad, 52 N. H. 528, neglect of the engineer to give the warning whistle on approaching a highway crossing was made evidence on the question of the particular negligence, at a different time, alleged as the cause of the injury; and in Hall v. Brown, 58 N. H. 93, the usage of railroad agents and servants in managing cars standing on or near a crossing was admitted to show the probable management of the same cars at the same place at the time in question. The evidence excepted to was not evidence of other horses' being frightened at the sound of escaping steam, nor at the sight of the vapor produced by it. Evidence of fright produced in horses by the sight or sound, on sight and sound, of a locomotive and cars passing on a railroad, could In Vehue v. Mosher, 76 Me. 469, the plaintiff renot be evidence on the question of whether covered judgment for a farm mortgaged to another, or not the plaintiff's horse at another time was who assigned the mortgage to him. The mortgawas frightened at the sound of steam escaping from gor, during the sixty days before the conditional a locomotive stationary on the track. Nor could became a final judgment, sold manure, previously the defendants' negligence in managing a locomo- made upon the place in the usual course of hustive and cars moving on the railroad, at or near a bandry, to the defendant, who during that period crossing, be evidence of negligence or mismanage-entered the premises and carried the manure away. ment in respect to steam escaping from a locomotive Held, that the plaintiff can maintain an action of not moving. The facts shown by the excepted evi- trespass quare clausum fregit against the defendant dence were too unlike those alleged in the declara- therefor. The court said: "The defendant contion to be evidence of negligence in the particular tends that trespass quare clausum cannot be maintained against him for the act. The position is that the action does not lie against the mortgagor, and therefore not against one licensed by the mortgagor to enter the premises. We think the action lies against the defendant, and would lie against the mortgagor had he done the same act. There is no intimation that the assignee of the mortgagee was not entitled to an immediate possession, though he was for a time postponed in getting possession by legal process. The action (quare clausum fregit) lies by mortgagee against mortgagor for strip and waste. The mortgagor is not liable in the action for using the premises, the possession of which is not taken by the mortgagee, but may be sued in quare clausum for abusing them in certain ways. A mortgagor in possession, before entry by the mortgagee, may lawfully cut and remove grass growing upon the land. Hewes v. Bickford. 49 Me. 71. He may take the rents and profits. He may cut firewood for use upon the premises. Hapgood v. Blood, 11 Gray, 400. He cannot cut and remove trees fit for timber in the market. Page v. Robinson, 10 Cush. 99. He cannot remove a building. Cole v. Stewart, 11 id. 181. Nor remove fixtures from a building. Smith v. Goodwin, 2 Me. 173. He is liable in quare clausum for any act causing substantial and permanent injury. Removing the manure in this case was of the same kind of injury and waste
In Roberts v. Noyes, 76 Me. 590, it is held that although a bailee is not permitted to dispute the title of his bailor, he may show that the bailor has assigned his title to another, since the property was intrusted to him. If legally assigned, and the bailee has notice of the fact, the bailee must account to the assignee. The rule that a bailee should not attorn to a stranger does not apply; the assignee is not a stranger. The court said: "The defendant invokes the rule of law, that an agent in possession of his principal's property is not permitted to dispute the principal's title thereto; that he cannot be converted into a trustee for a third person by a mere notice of his claim; that he cannot affect the principal's rights by an attornment to a stranger; and that an action of money had and received cannot lie in such case by a third party. All of which is true but misapplied. The plaintiff does not set up an independent and hostile claim as a stranger or third party. He claims under Mrs. Rounds, and not adversely to her original right. He claims that her right has become his; that thereby her trustee has become his trustee; and that the privity between her and her agent has been transferred to him. The plaintiff could not dispute Mrs. Rounds' original title, but he can show that it was assigned
to him. It is clear from all the authorities that while a bailee cannot dispute the title of his employer, he can show that since the bailment it has been assigned to another. The allegiance of the vassal was to defend the castle of his lord against outside foes, and not against itself. The present is only the common case of the assignment of a fund or claim in the hands of the agent or attorney of the assignor. A question arising between the assignor and assignee, each making a demand upon the trustee or stakeholder, the defendant could have saved himself from all risk, and from costs, by sending the contestants into equity upon a suit of interpleader. Having espoused the side of the assignor he took the consequences attached. No sufficient defense has been established against the claim of the assignee. Marvin v. Elwood, 11 Paige, 365; Smith v. Hammand, 6 Sim. 10; 3 Pom. Eq. Jur., § 1327, and cases in note; 2 Story Eq. Jur., § 817; Exchange Bank v. McLoon, 73 Me. 498." See Nudd v. Montanye, 38 Wis. 511; S. C., 20 Am. Rep. 25.
as removing trees or buildings or house-fixtures. Manure, situated as this was, is itself a fixture." See Chase v. Wingate, 68 Me. 204; S. C., 28 Am. Rep. 36.
COMMON WORDS AND PHRASES.
MOLUMENTS.-In Apple v. County of Craw ford, Pennsylvania Supreme Court, February, 1884, it was held that the compensation allowed to the sheriff for boarding prisoners is one of the "emoluments" of his office, which may not be increased or diminished during his term. The court said: "The boarding of the prisoners was certainly one of his official duties imposed upon him by law. For the performance of this duty he was entitled to receive a compensation, which was definitely fixed by law at the time of his election. While this compensation could hardly be called a salary, it seems to us that it is included within the larger and broader term 'emolument.' In Webster's Unabridged Dictionary the word 'emolument' is thus defined: 'The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office, as salary, fees and perquisites; advantage; gain, public or private.' We think the word imports more than the word 'salary or fees,' and because it is contained in the Constitution in addition to the word salary, we ought to give it the meaning which it bears in ordinary acceptation. By the definition above given it imports any perquisite, advantage, profit or gain arising from the possession of office."
HORSE. A jackass is a "horse" within a statute of exemption. Robinson v. Robertson, Texas Supreme Court, June, 1884. The court said: "This rule of liberal construction of exemption laws has prevailed in our State from the earliest decisions down to the present time. Thus in Cobbs v. Coleman, 14 Tex. 594, under the exemption of a 'horse,' it was held that a bridle, saddle, stake-rope and martingales were exempt. In Rodgers v. Ferguson, 32 Tex. 533, it was held that the word 'wagon' in the exemption statute included all four-wheeled vehicles for whatever use employed. In Anderson v. McKay, 30 Tex. 186, it was held that lumber which was destined for the erection of a house upon land claimed as a homestead might, under certain circumstances, be regarded as a part of the homestead, and therefore exempt. In Allison v. Brookshire, 38 Tex. 199, it was held that a 'mule' was included in the exemption of a 'horse.' In Alexander v.Holt, 59 Tex. 205, growing crops upon a homestead are held to be exempt as a part of the homestead.
called the ass 'the jackass being the male of this species. But it is urged that this construction will not do unless it appears that the animal is used as a horse; that is, used for riding, ploughing, and other such useful and necessary purposes for the benefit of the family. That if he is used merely for breeding purposes he is not within the spirit of the law, and is not exempt. We cannot so interpret our statute. It is not required by the terms of the statute, as it is in Alabama, for instance, that the horse exempt must be a work horse. Allman v. Gann, 29 Ala. 240. Nor are the horses exempt under our statute exempted for specific uses, as in the California statute. Robert v. Adams, 38 Cal. 383. Our exemption is general, unrestricted and unconditional and unlimited as to the value of the animals. It extends to all classes of of our citizens. It includes the valuable trotter or racer worth thousands of dollars, as well the comparatively valueless Mexican pony; the magnificent span of horses driven by the wealthy man as well as the brokendown hacks of the poor laborer. Such is the law of this State. Whether it be just, equal and wise, or unfair and inequitable, is not for us to determine. It is. very true that under the construction of the law a debtor may invest a large sum of money in two valuable stallions or jackasses, and in this way defraud his creditors. He may do the same thing, on a much larger scale, with his homestead. He may invest an unlimited amount in a homestead, and from a hundred thousand dollar palace bid defiance to his hard-working, poverty-stricken creditors. So it is no argument against our construction of the law to say that it is not right because it will allow a debtor to invest all his means in a couple of fine-blooded jackasses and live in luxury, not from the proceeds of their services as agricultural animals, but from their services as foal-getters, while his creditors are perhaps suffering for the pittance which he honestly owes them."
ROADWAY, ROADBED.-Steamers used by a railroad company in transporting freight cars across water intervening between the termini of the tracks, are not taxable as part of the "roadway or roadbed." City and County of San Francisco v. Central Pac. R. Co., 63 Cal. 467. The court said: "It is equally as clear that they are not rails or rolling stock. These words are to be construed according to their ordinary and popular meaning, and we do not think that it would be contended that rails or rolling stock in their ordinary and popular signifi cation include the steamers above mentioned. Are they then embraced within the words roadway or roadbed in the ordinary and popular acceptation of such words as applied to railroads? These two words, as applied to common roads, ordinarily mean the same thing, but as applied to railroads their meaning is not the same. The roadbed referred to in section 10, in our judgment, is the bed or foundation on which the superstructure of the railroad rests. Such is the definition given by both Worcester and Webster, and we think it correct. The roadway has a more extended signification as ap
plied to railroads. In addition to the part denominated roadbed the roadway includes whatever space of ground the company is allowed by law in which to construct its roadbed and lay its track."
GUNPOWDER.-Fireworks are not "gunpowder. Tischler v. California Farmers' Mut. Ins. Co., California Supreme Court, November, 1884. The court said: "It remains to be considered whether the fireworks kept by the plaintiff rendered void the policy under that provision of it prohibing the keeping or use on the premises of 'gunpowder.' Defendant introduced no testimony tending to show of what the fireworks were composed. They may be composed of various combustible materials-usually, we believe, of preparations of gunpowder, sulphur, and some other inflammable material or materials. But although gunpowder may be, and usually is, one of the constituents of fireworks, it by no means follows that 'fireworks' are 'gunpowder.' The latter is 'a mixture of saltpetre, sulphur and charcoal, separately pulverized, then granulated and dried.' It was the mixture called gunpowder which, along with phosphorus, camphene, gas and chemical oils, the plaintiff was, by the policy in question, prohibited from keeping or using on his premises without the written consent of defendant, under penalty of rendering the policy void."
REASONABLE DOUBT.-In State v. Rounds, 76 Me. 123, it is said: "Mr. Bishop (1 Crim. Proc., § 1094) says: 'There are no words plainer than reasonable doubt, and none so exact to the idea meant. Hence some judges, it would seem, wisely decline attempting to interpret them to the jury. Negative descriptions may be safe, and perhaps helpful; as that it is not a whimsical or vague doubt or conjecture, not an impossibility, * * * but it is a reasonable doubt.' It is not an unreasonable doubt. The very term implies that there may be doubts not reasonable or rational. It cannot be a merely possible doubt, for any thing relating to human affairs may be in some way subject to possible doubt. It is such an actual and substantial and well-founded doubt as would be entertained by a reasonable and conscientious man-' such a doubt that the reason for it can be examined and discussed.' In State v. Reed, 62 Me. 129, the following was decided to be a correct definition: It is a doubt which a reasonable man of sound judgment, without bias, prejudice or interest, after calmly, conscientiously and deliberately weighing all the testimony, would entertain as to the guilt of the prisoner.' It is not enough to establish merely a probability of guilt. The rule requires that the guilt shall be established to a reasonable, but not an absolute, demonstrative or mathematical certainty. * In the present case the learned judge who presided at the trial went still further toward the outer circle of judicial limits, and said to the jury that 'the law only requires that degree of certainty in the minds of jurors before rendering a verdict of guilty, as would exist in their minds in coming to a conclusion on matters of grave interest and importance to
themselves.' This exposition of reasonable doubt is strenuously objected to by the counsel for respondent. This definition is substantially in the words of Lord Tenterden in a capital case long ago and has been frequently used by judges since. See 3 Greenl. Ev. (13th ed.), § 29 n. Of this definition Mr. Bishop, in section of Criminal Procedure before cited, says: 'If there were no doubt of its accuracy, it might in some circumstances, to some minds, be helpful; yet on the whole it is less clear than the phrase it would explain.' But its correctness is denied by five or six of the State courts. Still it has been approved by as many other courts. See cases cited by Mr. Bishop. See also Howser v. State, 5 Ga. 78. Standing alone, the phrase seems to be rather an inadequate and unsatisfactory definition. The trouble with it is that with all men their own af fairs do not necessarily receive the same consideration which they should bestow as jurymen upon the in terests of others. But in the case at bar other definition of reasonable doubt was added. The further instruction was that a reasonable doubt is a doubt arising in the mind for which some fair, just reason can be given.' This the jury could very well understand. The other phrase is too much objected to by many respectable courts to commend its adoption into judicial use. The rule of reasonable doubt was itself settled upon to rid the law of a great variety of loose and confused definitions and phrases which had been from time to time adopted by different judges to express the judicial idea."
PLYING.-A vessel never in the State except occasionally to receive or discharge cargo, is not "plying in waters of the State." City and County of San Francisco v. Talbot, 63 Cal. 485. The court said: "Plying,' when used in the connection that it is here, is a nautical phrase, which is defined by Webster as follows: 'To make regular trips; as a vessel plies between the two places.' It might well be urged that a vessel making regular trips between any port in California and some port outside of California, was 'plying in part in the waters of this State.' But can that be properly said of a vessel which sails out of a port outside of this State 'to various ports and countries in the regular course of commerce, transporting lumber and other freight,' and touching at the port of San Francisco transiently in the course of her voyages, and 'only long enough to take in and discharge cargo?' 'Plying' implies regularity, and is not the term used to express the character of the irregular and transient visitations of a ship to a port in the course of her voyage to various ports. In that case a vessel is said to touch at each of the ports which she visits. A vessel plies between two places-she may touch at many."
MILK. This includes skimmed milk. Lane v. Collins, Q. B. Div., December 16, 1884. The London Law Journal says: "All language has a tendency to deteriorate, but that is no reason why respectable words like 'milk' should have a push down hill given them by persons in authority. This is what
has happened in the case of Lane v. Collins, noted in this week's Notes of Cases. The Adulteration Act, 1875, requires under penalties that articles of food sold shall be of 'the nature, substance and quality' of the article demanded, and Mr. Justice Day and Mr. Justice Mathew decide that when ( milk' is asked for the statute is sufficiently complied with if skimmed milk is supplied that is to say, milk sixty per cent deficient in butter-fat. Skimmed milk, they lay down, is the milk of commerce, but the question is whether it is the milk of language. We venture to maintain that 'milk' means the milk of the cow, and that those who want cow's milk do not use a negative and ask for 'unskimmed milk.' The impetus now given to the decline of language in the interests of commerce may carry us far. we ask for 'coal,' we are not entitled to coal as it comes from the pit, but must be satisfied with dregs from which, in the words of the play, all the knobbly ones' have been picked out. If we ask for strawberries, we must put up with a basket of leavings with a few big fruit at the top. If we ask for wine we must, on the authority of those learned judges, be content to drink-horrescimus—the claret of commerce."
years of the commission of the offense there were no houses near this spot, and when Brighton was a fishing village whole regiments of soldiers used to bathe there at the same time; that at the time the offense was committed there was a row of houses erected on the cliff, from the windows of which the defendant might be distinctly seen as he undressed; and when Brighton grew up, that which was before a place where bathing could take place without any observation became a place where it could not so take place, and the lord chief baron says: 'Nor 18 it any justification that bathing at this spot might a few years ago be innocent. For any thing that I know a man might a few years ago have harmlessly danced naked in the fields beyond Montague House, but it will scarcely be said by the learned counsel for the defendant that any one might now do so with impunity in Russell square. Whatever place becomes the habitation of civilized men, there the laws of decency must be enforced.' That appears to be exceedingly good sense, and to be a guiding statement of the law which may fully guide us in this case. Here 18 a place which persons, though they may be legal trespassers, do go upon, and no one interferes with them. In a place therefore where the public go without interference, a man takes seven or eight little girls and exposes himself to them. I am of opinion that the prisoner exposed himself indecently in a public place."
MANUAL LABOR.-In Morgan v. London General Omnibus Co., Ct. App., 13 Q. B. Div. 832, it was held that an omnibus conductor is not engaged in "manual labor." Brett, M. R., said: "He does not lift the passengers into or out of the omnibus; it is true that he may help to change the horses, but his real and substantial business is to invite persons to enter the omnibus, and to take and keep for his
employers the money paid by the passengers as their IN
fares; in fact he earns the wages becoming due to him through the confidence reposed in his honesty."
PUBLIC PLACE.-In Reg. v. Wellard, C. C. Res., 51 L. T. Rep. (N. S.) 604, it was held that a conviction of indecent exposure of the person in a public place was valid, although the place was one to which the public had no legal right of access. Coleridge, C. J., observed: "There is a difficulty to my mind certainly in giving an affirmative definition as to what is a public place, but I am by no means certain that the publicity of the spot where the offense takes place has any thing to do with it. This however is clear, that what is a public place will vary from time to time; that is to say, that a place may be a public place at one time for the purpose of having an offense committed in it, and may not be a public place at another time for that purpose. The question is whether at the time the offense is committed the place is a public place in the natural and ordinary sense of the term. In Rex v. Crunden, 2 Camp. 89, McDonald, C. B., points out in a short, and if I may say so, good judgment, the obvious sense of what I have been endeavoring to give as my opinion. There it appeared that on a Sunday afternoon the defendant had bathed opposite the East Cliff at Brighton, undressing and dressing himself upon the beach; that till within a very few
PRESUMPTION OF MARRIAGE.
N many cases, in which the question of the existence of the marital relation between two parties is presented, it is found impossible to adduce direct evidence of an actual marriage. It then becomes im. portant to determine what other evidence is competent upon the point, and what facts and circumstances will suffice to create a presumption of marriage.
What facts will justify a court or jury in inferring as a matter of fact that a valid marriage contract has actually been made between two persons is a question that appears to be involved in a considerable obscurity and uncertainty, owing to the diversified circumstances under which that question has been presented in different cases, and also to the different phases of liti
gation in which it has been before the courts. The same rules do not obtain in all legal proceedings in which the fact of a marriage becomes material. In some proceedings, as in criminal prosecutions for bigamy or in civil suits for criminal conversation strict proof is required. The marriage cau be estab
lished by only direct evidence. In other proceedings greater latitude is allowed the party on whom it is in cumbent to prove a marriage, in both the quality and the quantity of the evidence he must produce to sustain the burden of proof resting upon him. The waut of harmony between the adjudications on this brauch of jurisprudence is however more apparent than real. A careful review and analysis of the reported cases on the subject will eliminate from them much of this seeming conflict.
With the exception of prosecutions for bigamy, adultery and incest, and suits for criminal conversation, and possibly one or two other proceedings which will be hereafter more particularly referred to, the authorities all agree that cohabitation and reputation are
sufficient facts on which to warrant a finding of marriage. 1 Bish. ou Mar. and Div., §§ 434, 435, 436, 437, 442, 443, aud cases cited; Betsinger v. Chapman, 88 N. Y. 499.
On principle it would seem to be the correct doctrine, that such evidence of marriage is competent in only those proceedings in which from the nature of the case it is impossible to produce direct and positive proof. This consideration appears to have governed the court in Collins v. Collins, 80 N. Y. 1. The question of the existence of a marriage arose on an application for alimony in au action for divorce. It appeared that at the time plaintiff and defendant were married, plaintiff had a husband living. There was no evidence of an actual marriage with defendant after the death of the former husband. The court refused to grant the application for alimony on the ground that the marriage had not been established, saying at page 10: "The onus however is upon the plaintiff to establish with at least a reasonable degree of certainty that she is the wife of the defendant, and it would seem that she should produce the best evidence in her power. She is a competent witness to prove the fact of marriage, and if any new marriage contract was entered into between her and the defendant, after the death of her first husband, she should have alleged it." The doctrine of this case should have universal application in all proceedings in which it is possible to prove the marriage by the testimony of one or both of the alleged married parties. But this is far from being true. In numerous cases it has been held that marriage may be shown by cohabitation and repute during the life of the very persons whose marital relations are in dispute, or during the life of one of them. It may be proved in this manner in an action brought by husband and wife jointly. Crozier v. Gano, 1 Bibb, 257; Hammick v. Bronson, 5 Day, 290; Boatman v. Curry, 25 Mo. 433. So in actions against husband and wife, Peltingill v. McGregor, 12 N. H. 179; Jenkins v. Bisbee, 1 Edw. Ch. 377; Newburyport v. Boothbay, 9 Mass. 414. So where a woman seeks as widow to recover dower, or as widow claims to inherit her alleged husband's property. Young v. Foster, 14 N. H. 114; Sellman v. Bowen, 8 Gill. & J. 50; Chambers v. Dickson, 2 S. & R. 475; Pearson v. Howey, 6 Halst. 12; Stevens v. Reed, 37 N. H. 49; Fleming v. Fleming, 8 Blackf. 234; Strover v. Boswell, 3 Dana, 232; Graham v. Law, 6 U. C. C. P. 456. So where one sought to recover as heir of his brother during the life of the father. Fleming v. Fleming, 4 Bing. 266.
Where a presumption of marriage has once arisen from a cohabitation, apparently matrimonial, it can be overthrown by only the most cogent proof. Hynes v. McDermott, 91 N. Y. 451, 459; Morris v. Davies, 5 Cl. & Fin. 163; Piers v. Piers, 2 H. L. Cas. 331.
In Morris v. Davies, Lord Lyndhurst said, in speaking of this presumption: "The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinot, satisfactory and conclusive."
In Hynes v. McDermott, the Court of Appeals declared: The presumption of marriage from a cohabitation apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy. Where there is enough to create a foundation for the presumption of marriage it can be repelled only by the most cogent and satisfactory evidence."
Marriage cannot be established by mere proof of cohabitation and repute, or in fact by any evidence
short of evidence of an actual marriage in any of the following cases:
In prosecutions for bigamy or polygamy People v. Humphrey, 7 Johns. 314; Clayton v. Wardell, 4 N. Y. 230; S. C., 5 Barb. 214; Case v. Case, 17 Cal. 598; Truman's case, 1 East P. C. 470; for adultery, Wedgwood's case, 8 Greenl. 75; Commonwealth v. Norcross, 9 Mass. 492; State v. Hodgskins, 19 Me. 155; for incest, State v. Roswell, 6 Conn. 446; State v. Roswell, 6 id. 446; and for loose and lascivious cohabitation, Commonwealth v. Littlejohn, 15 Mass. 163; see Hopper v. State, 19 Ark. 143. So in a civil action for criminal conversation, Morris v. Miller, 4 Burr. 2057; S. C., 1 W. Bl. 632; Birt V. Barlow, 1 Doug. 171; Hemmings v. Smith, 4 id. 33; Catherwood v. Caslon, 13 M. & W. 261; Dann v. Kingdom, 1 Thomp. & Cook, 492. Whether in an actiou for divorce on the ground of adultery the marriage can be established by cohabitation and repute seems to be involved in some uncertainty. But the decided preponderance of authority is in favor of the sufficiency of such evidence. Purcell v. Purcell, 4 Hen. & Munf. 507, 512; Morris v. Morris, 20 Ala. 168; Wright v. Wright, 6 Tex. 3; Trimble v. Trimble, 2 Ind. 76; Harman v. Harman, 16 Ill. 85; Hitchcox v. Hitchcox, 2 W. Va. 435; Burns v. Burns, 13 Fla. 369, 380.
In Collins v. Collins, 80 N. Y. 1, the New York Court of Appeals appeared to favor the doctrine of striot proof. The court refused to apply the rule of proof by cohabitation and repute. The evidence showed that the parties alleged to be husband and wife had lived together as such from the death of the wife's former husband in 1856 down to 1868. But the court decided that the marriage was not sufficiently proven to entitle the wife to alimony, although it expressly recognized the principle that that fact would have been sufficient to establish a marriage in any other civil proceeding, excepting of course an action for criminal conversation. The court seems to have based its decision on the very satisfactory ground that the wife must prove the marriage by the best evidence within her power; in other words that she must swear to it herself. This principle ought to be conclusive on the point without assiguing further reasons for the dootrine. But singular as it may appear, the courts in all the cases above cited have invariably ignored this fatal objection to the doctrine they promulgate. The parties themselves being competent witnesses to prove the marriage, cohabitation and repute are subject to the unanswerable objection that they are not the best evidence of which the case in its nature is susceptible. The leaning of the court in Collins v. Collins toward the rule requiring direct evidence of marriage is shown by the following language; "Although as a general rule for ordinary purposes, actual marriage may be presumed from matrimonial cohabitation and the acknowledgments of the parties that they are husband and wife, there are cases in which direct evidence of marriage is required. The cases generally mentioned as calling for such direct proof, as contradistinguished from mere proof of matrimonial cohabitation, recognition and general reputation, are prosecutions for bigamy and actions for crim. cou. But many others are mentioned in the authorities, and some of them lay down the proposition generally that direct evidence is required in all criminal or quasi criminal prosecutions, or actions founded on the relation of marriage; and in others it is said that when the violation of the relation of husband and wife constitutes the guilt of the accused, such relation must be proved by direct evidence. * * *The question is too important to render it proper to determine it finally on a mere motion for alimony. The onus however is upon the plaintiff to establish with at least a reasonable degree of