Winslow a. Winslow.

WINSLOW a. WINSLOW.

Supreme Court, First District; Special Term, February, 1858.

EVIDENCE OF MARRIAGE.

What is sufficient evidence of the solemnization of a marriage in Ireland, in an action to declare a subsequent marriage null.

This was an action for a divorce. The parties were married in New York, in October, 1846. This action was brought by the wife to declare the marriage null, upon the ground of a subsisting prior marriage, contracted by the husband with one Jane Alexander, in Ireland, in 1842.

The questions presented were, whether the prior marriage was duly solemnized, and sufficiently proved.

DAVIES, J.-It appears from a deposition taken in the cause, that the defendant was married to Jane Alexander, at Cullenwood, New Dublin, Ireland, in 1842: that the ceremony was performed in the presence of the witness and his wife, by the Rev. Mr. Maguire, a clergyman of the established church of Great Britain and Ireland, according to the customary and prescribed forms: that an entry was made, in a book, of the marriage at the time, and over which he the witness had no control: that the Rev. Mr. Maguire is now dead: that he read the marriage ceremony from a book which he believes was a prayerbook of the established church, and that the parties married kneeled down on the occasion: that the witness believes that Rev. Mr. Maguire, who performed the ceremony, was at the time a regular clergyman of the established church.

Was this a legal and valid marriage, according to the law of the place where it was performed? The general principle is, that the lex loci is to be the governing rule in deciding on the validity or invalidity of all personal contracts. (Ulmender v. Ulmender, 2 Clark & F., 529.) In this case, Lord Brougham says, the courts of the country where the question arises, resort to the law of the country where the contract was made, and

Winslow a. Winslow.

that a marriage, good by the laws of the country, is held good in all others where the question of its validity may arise. (Shelford on Mar., 120, 121.)

A marriage in Ireland, by a clergyman of the established church, is good, though it takes place in a private room, either with or without any special license (Smith v. Maxwell, 1 Carr. & P., 271; 1 Ry. & M., 80; Wright v. Elwood, 1 Curteis, 49); and a marriage by a dissenting minister in Ireland is valid. (Shelford on Mar., 77.)

On an indictment for bigamy, the first marriage being solemnized in Londonderry, it was contended that the marriage was illegal, having been clandestinely celebrated; but the recorder of London held the marriage valid, on the ground that as before the marriage act a marriage might have been celebrated in England in a private house, and as it was only made necessary by the enactment of positive laws to celebrate it in a church, some law must be shown requiring the marriage in a church in Ireland, before the marriage could be held illegal. (1 Russell on Crimes, 2d ed., 205.)

And as marriages in Ireland may be had without any celebration in facie ecclesiæ, or in the presence of witnesses, such marriages may be proved by slenderer evidence than is requisite to the proof of a marriage in England. (Sheppard on Mar., 78.) And in Ireland it is not requisite, when a marriage is celebrated by a priest, to prove that he is in orders; it is sufficient to show that he was a reputed clerk. (1 Lees R., 29, cited. 2 Hagg. Cons. R., 401.)

The defendant came to this country some two or three years after his marriage to Jane Alexander, and two letters of his are produced, in his handwriting, addressed to his "darling wife and child," and superscribed Mrs. Winslow.

The first is under date of Dec. 30, 1845. In it he speaks of having received a letter from her, inclosing "our certificate of marriage." He also says, that he had received information "that the Rev. Mr. Maguire received proper authority for marrying, and consequently your marriage is legal." In a subsequent letter to his wife, under date of April 1, 1846, he says, "Mr. Pakenham sent me our certificate, and he said that, from what he had learned, she was his lawful wife."

It seems to me quite clear that the defendant was properly

The Mayor, &c., of New York a. Flagg.

married to Jane Alexander in Ireland, in 1841, or 1842; and that the evidence of such marriage is conclusive.

Jane Alexander-or Jane Winslow, as she became on this marriage is still living, and was in court on the trial of the cause, and identified by a witness who had known her from her childhood.

It follows, therefore, that at the time of the pretended marriage of the defendant with the plaintiff, he was a married man, and could not lawfully contract such marriage. There must be judgment for the plaintiff, declaring such marriage to be null and void, and that the plaintiff recover her costs, to be adjusted.

THE MAYOR, &c., OF NEW YORK a. FLAGG. Supreme Court, First District; Special Term, February, 1858.

INJUNCTION. INTERPLEADER.-OFFICER.

The plaintiffs, a municipal corporation, brought an action against their comptroller, and two adverse claimants of a municipal office and their respective appointees, alleging in their complaint that the former was charged by law with the duty of adjusting all claims against the corporation, and that an action in the nature of a quo warranto was pending to try the title to the office in question, and that meanwhile one of the claimants and his subordinates had brought actions against the corporation for salaries; and sought an injunction restraining the former from allowing or paying any such claims, and the other defendants from bringing, or suffering to be brought, or further proceeding in, actions during the pendency of the quo warranto.

any such

Held, that the injunction was properly granted. Such a case is within the principle of a bill of interpleader as heretofore allowed; and as the question of title to the salaries was dependent solely on the question of title to the office, which was then being litigated, there was no necessity that the plaintiffs should pay or offer to pay into court, the fund or amount of the salaries.

Of the distinction between an officer de jure and an officer de facto.*

Order requiring the plaintiff to show cause why a temporary injunction should not be dissolved.

The action was brought against Flagg, the comptroller of the

See also The People on rel. Devlin a. Peabody, Ante, 228.

The Mayor, &c., of New York a. Flagg.

city of New York, Conover, and Devlin, who each claimed title to the office of street commissioner of the city, and against the subordinate officers appointed by them respectively, to restrain the former from paying and the others from collecting or receiving salaries until the controversy as to the title to the office should have been legally determined.

Upon the verified complaint, the substance of which is stated in the opinion, Mr. Justice Davies granted a temporary injunction; and the defendant Conover, who was acting as street commissioner, obtained an order that the plaintiffs show cause why the injunction should not be dissolved, so far as related to him, Conover, and clerks appointed by him, and to the payment by defendant Flagg of salaries due to them.

D. D. Field, for the motion.-I. No injunction can be granted in an action of quo warranto to restrain the defendant in such action from exercising the office pending the litigation. That was decided in the case of The People a. The Police Commissioners (Abbotts' Pr. R., 333). The public interests require an office to be filled, and whoever holds it de facto should be allowed, for the sake of the public, to execute it until another recovers it from him.

II. The complaint in the action of quo warranto admits that Conover is in possession of the office. Being in possession, it is his legal duty to execute it; he cannot execute it without subordinates; he has a right to appoint them, and the city is liable for their compensation. The office cannot be executed unless the subordinates are paid, and to refuse them payment would be to restrain Conover indirectly from doing that from which it is plain he cannot be directly restrained.

III. The injunction in this case should therefore be dissolved as to all Conover's subordinates, and as to Mr. Conover himself also, because he cannot recover his salary without showing that he is rightfully street commissioner. The whole case turns on the principle that an officer de facto has a right, until his ejection, to appoint subordinates and perform all the duties of said office. It is not only a right, but a legal duty.

R. Busteed, opposed.-The injunction was properly granted to restrain a multiplication of suits by the employees of the

The Mayor, &c., of New York a. Flagg.

street commissioner's office against the city. If it should be dissolved as to Conover, it should be also as to Devlin. The injunction cannot be dissolved without deciding upon the title to this office, which cannot be tried in this collateral manner. The employees of both commissioners hold their offices knowing the uncertainty of their tenures, and therefore sympathy for them should be no argument in favor of dissolving this injunction. Moreover, if the city pay all these salaries, a separate action will have to be brought to recover them back if it be decided that the titles of the various subordinates, either of Conover or Devlin, are bad. It may be impossible so to recover them; and thus the injunction asked for is the only practical means of protecting the city.

SUTHERLAND, J.-It appears to me that the case of the plaintiffs, as stated in their verified complaint, comes fairly within the principle upon which bills of interpleader have been heretofore allowed.

The defendants, Conover and Devlin, both claim to be the street commissioner of the city of New York at the same time, -the one by appointment from the governor of the State, the other by appointment from the mayor and aldermen of the said city; both claim a right to discharge the duties of that office by virtue of their respective antagonistic appointments, and both claim the salary allowed by law to the rightful incumbent of that office.

The defendant Flagg is the comptroller of the city, and as such is by law charged with the duty of settling and adjusting all claims against the plantasia municipal corporation.

The other defendants are appointees of Conover and Devlin, respectively, as street commissioner, under their said respective appointments, claiming to have been duly appointed by the said Conover and Devlin respectively, and to be entitled to the salary or compensation allowed by law to the rightful incumbent of the office, or position, to which they respectively claim to have been so rightfully appointed.

Devlin and his appointees have brought, and are bringing, suits against the plaintiffs for their salaries, and have recovered judgments in the aggregate to a large amount.

An action in the nature of a quo warranto has been com