if upon the construction of the contract | tle so much as has been remanded. After a supposed this court reverses the judgment mandate no rehearing will be granted. It of the court below and orders a new trial, the decision is equally conclusive as to the principles which shall govern on the retrial. It is just as final to that extent as a decision directing a particular judgment to be entered is as to the character of such judgment. The court cannot recall the case and reverse its decision after the remittitur is issued. It has determined the principles of law which shall govern, and, having thus determined, its jurisdiction in that respect is gone. And if the new trial is had in accordance with its decision, no error can be alleged in the action of the court below."

is never done in the house of lords; and on a subsequent appeal nothing is brought up but the proceeding subsequent to the mandate." 12 Pet. 491. The above, it will be observed, is stated as the settled opinion of the supreme court of the United States as to the course they should pursue upon its decree or judgment, after its final action upon a case brought within its appellate jurisdiction. In the case cited the trial court had taken no action upon the mandaesent down to it. The supreme court held it, nevertheless, as binding on itself as though it had. It laid down the general rule that no court can interfere with its own judgments after its jurisdiction over them has ceased, (except in a few cases, neither of which appears here;) that when the cause has gone beyond its jurisdiction it can neither reverse nor annul its decree or judgment for any errors, whether of fact or law; that in such a case the judgment is just as binding on the higher as on the lower court. The ruling in Sibbald's Case was approved in Bridge Co. v. Stewart, 3 How. 426, and is, no doubt, the settled law of the United States supreme court. There are other cases to the same effect in that court, which need not be referred to. They can be readily found in the digests.

The same rule is laid down in Ex parte Sibbald, 12 Pet. 488. In that case the supreme court had entered its decree reversing in part the decree of the superior court of East Florida in U. S. v. Sibbald, (see 10 Pet. 313-325,) and had remitted to the superior court its mandate to be executed. The lower court refused to execute the mandate, and the party concerned (Sibbald) proceeded by petition (there were two) to procure the enforcement of the mandate of the court. On the hearing of these petitions Mr. Justice BALDWIN delivered the opinion of the court. He said: "Before we proceed to consider the matter presented by these petitions, we think We think it settled law in this state, fixed proper to state our settled opinion of the and beyond debate, that the points incourse which is prescribed by the law for volved in a cause finally decided by this this court to take, after its final action up-court are beyond its jurisdiction; that it on a case brought within its appellate ju- has no power to reverse or modify its judgrisdiction, as well as that which the court ment after the case has passed, by the issuwhose final decree or judgment has been ance of its remittitur, from its control; that thus verified ought to take. Appellate such decision, whether right or wrong, is power is exercised over the proceedings of binding on this court and every other court; inferior courts, not on those of the appel- that it is a final adjudication, from the conlate court. The supreme court have no sequences of which this court cannot depart, power to review their decisions, whether nor the parties relieve themselves. As was in a case at law or in equity. A final de- said by FIELD, C. J., speaking for the court, cree in chancery is as conclusive as a judg- in Leese v. Clark, supra: "The court canment at law. Both are conclusive on the not recall the case, and reverse its decision, rights of the parties thereby adjudicated. after the remittitur is issued." 20 Cal. 417. No principle is better settled, or of more Its jurisdiction over the case is gone. The universal application, than that no court contention of the defendant limiting the can reverse or annul its own final decrees applicability of the rule of the law of the or judgments, for errors of fact or law, aft- case, finds no countenance in any decision er the term in which they have been ren- of this court. The remittitur has long since dered, unless for clerical mistakes, or to re-issued on the former appeal, and cannot instate a cause dismissed by mistake, from now be recalled. The power of this court which it follows that no change or modifi- in regard to that appeal has long since cation can be made which may substantial- ceased. In none of the cases cited by counly vary or affect it in any material thing. sel for appellant (Walden v. Murdock, 23 Cal. Bills of review in cases in equity, and writs 540, 549; Fulton v. Hanna, 40 Cal. 278, 281; of error, coram vobis, at law, are excep- and McDonald v. McConkey, 57 Cal. 325) is tions which cannot affect the present mo- there anything, in my judgment, adverse tion. When the supreme court have ex- to what has been said above. They are all ecuted their power in a cause before them, in harmony with it. Where a judgment is and their final decree or judgment requires affirmed a new trial may still be granted some further act to be done, it cannot issue after such affirmance on errors of law not an execution, but shall send a special man- considered or passed on in affirming the date to the court below to award it. What- judgment, but a new trial cannot be granted ever was before the court, and is disposed when the court, in order to grant it, contraof, is considered as finally settled. The in- venes what has been adjudicated by the ferior court is bound by the decree as the previous decision. The numerous cases delaw of the case, and must carry it into ex-cided by this court, with regard to the law ecution according to the mandate. They of the case, may be easily found by refercannot vary it, or examine it for any other ence to the digests; what has been said purpose than execution, or give any other above is in line with what is decided in or further relief, or review it upon any mat- them.

ter decided on appeal for error apparent, We pass to the points made on the inor intermeddle with it, further than to set-sufficiency of the evidence to justify the de

and down to the 25th day of November, 1881, and during all of said time the plaintiff and defendant mutually assumed towards each other marital rights, duties, and obligations." In the sense in which cohabitation is regarded by the counsel for the appellant, the evidence does not show it. There is no evidence of such cohabitation as is defined in Yardley's Estate, 75 Pa. St. 211; or Ohio v. Connoway, Tapp. 90; or in Calef v. Calef, 51 Me. 366; or in Bouv. Law Dict., under the word "Cohabit;" or in any other case or book of authority. The evidence does not show any "living together" by the parties ostensibly as husband and wife. See1 Bish. Mar. & Div. (6th Ed.) § 777, and note 2. But the evidence does establish what was found by the trial court, and the court on the former appeal held this was, with other matters, found sufficient to constitute marriage.

cision. It is urged that the second finding, | tinued for the space of more than one year, that "the marriage contract" was signed by William Sharon, cannot be held by this court to be justified by the evidence. In limine, I will say that in my judgment the opinion of the learned judge in this case, before whom it was tried in the superior court, is not a part of the record on this appeal. That opinion is not in the transcript on this appeal, and this court cannot look into it in another record. The record on the former appeal can be looked into to ascertain what facts were then before the court, so as to see to the correct application of the rule that such decision is the law of the case. McKinlay v. Tuttle, 42 Cal. 576. We can look into the opinion of Judge SULLIVAN in this case, when it relates to any question of law arising in this case, or in any other case, just as we may examine the opinions or judgments of any court to enable the court to determine what the law is applicable to the facts of a case which is before it for determination, but we cannot look into the opinion of Judge SULLIVAN to ascertain in what mode he dealt with the credibility of witnesses, or what weight or value he accorded to the evidence before him in deciding this case. To pass on any point in the case, whether relating to insufliciency of the evidence or any other matter debated, we are confined by the law to that which may be found on the pages of the transcript furnished to us on this appeal. Now, in regard to the evidence as to the signing of the marriage contract by William Sharon, the plaintiff testifies that he signed it in her presence, after it was written. Sharon testified that he never signed it. This presents a substantial conflict. The circumstantial evidence bearing on the issue of the execution of this paper does not remove this conflict. That evidence is also conflicting. Whatever view is taken of the evidence on this issue, a substantial conflict is presented. Hence there can be no reversal of the order on the ground that the evidence is insufficient to justify the second finding. Granted that it does appear, on a comparison of the finding and the evidence, that the court below must have found that the plaintiff testified falsely as to Sharon's introducing her as his wife, still the law does not require the rejection of her testimony on other points. The rule for the guidance of the trial court is thus expressed in the Code: "That a witness false in one part of his testimony is to be distrusted in others." Code Civil Proc. § 2061. I cannot go so far as to say that this distrust was not exercised, and that the credibility of the plaintiff was not weighed by the trial court according to the mandate of this rule. The credit to be given to the witness was for the court below and not for this court. Admitting that this court might go further on an extreme case, I cannot say on this record that this is such a

666

As appropriate to this question, and to show what was decided on the former appeal in this case, in addition to what has been said previously in this opinion, and the quotations from Justice MCKINSTRY'S opinion, I will refer to some other portions of the opinion. In it is said: "The word consummation,' whenever used as something different from the mere consent or formal solemnization of marriage, had always been held to mean 'simply sexual intercourse, copulation; nothing more nor less.' Section 57 of our Civil Code provides how this consummation may be proved." On page 33 it is said: There are two principal ends of marriage,-a lawful indulgence of the passions to prevent licentiousness, and the procreation of children under the shield and sanction of the law.' Stew. Mar. & Div. § 103. The intercourse, which is the means by which these ends are attained, is both a right and duty. Evidence that the man and woman have enjoyed the right and discharged the duty, whether direct or consisting of proof of another fact from which the intercourse may be inferred, -as cohabitation,-is, when preceded by present consent to marry, evidence that the parties to the contract have actually assumed all the duties incident to marriage." Taking the paragraphs quoted together, I think it was intended to decide, and that the court did hold and decide, that secret sexual intercourse, following a present consent to marry, consummates the marriage. Cohabitation is only regarded as a circumstance proving such intercourse, while it is said that this intercourse may be proved by direct evidence. The court intended to decide that the consent and the intercourse above stated consummated the marriage, and was an assumption of marital rights, duties, and obligations. The cohabitation spoken of in the opinion of Justice MCKINSTRY means nothing but occupying the same bed. In determining what is decided in a cause we must It is also urged that the evidence is insuf- give to the words used the sense in which ficient to justify the third finding, which is they were employed in it; and in my judgin these words: "That afterwards, and ment the word "cohabitation" is used in about the day of September, 1880, the opinion to denote what is stated above. the plaintiff and defendant commenced liv- Cohabitation was only evidence of what ing and cohabiting together in the way was regarded as consummation, viz., the usual with married people, although their intercourse mentioned above. In my opincohabitation was kept secret, and so con-ion it was decided, and the court intended

case.

not intend to say that People v. Hamblin, 68 Cal. 102, 8 Pac. Rep. 687, is not properly decided. The decision there may be sustained on the principle which ruled People v. Crapo, 76 N. Y. 288. As the order is reversed, and the cause cannot be tried again, it is not necessary that I should express a decided opinion upon the point, (the question put to Mrs. Samson.) I prefer to reserve the question for further examination and consideration when the same or a like question shall come before this court.

I rest my concurrence in the reversal of the order upon the exclusion of the testimony of the witness Hornblower. This testimony was relevant to the main issue in the cause, viz., the genuineness of the marriage contract. The defendant was clearly injured by its exclusion, and therefore I am for reversing the order denying the motion for a new trial.

to decide, that if the parties consented to Wilson, and the exclusion of that of the atmarry per verba de præsenti, this consent torney, Hornblower. As regards the queswas followed by sexual intercourse, though tion put to the witness Mrs. Samson, I am everything in relation to the marriage was inclined to think that the court had a right enacted by them under "a cloak of dark-in its discretion to allow the question to be ness;" that the marriage was perfected, be-put; the witness having the privilege of recame verum matrimonium. The decision fusing to answer it. In saying this I do of the court may be expressed by a little change in the maxim, "Consensus non concubitus facit nuptias." Let it be read, "Consensus et concubitus faciunt nuptias,' and it will express the conclusion reached. In this view, the kind of cohabitation spoken of by counsel becomes immaterial. The court having decided as is explained above, there was no necessity for the cohabitation contended for, to constitute the marriage. The evidence does establish such cohabitation as was found by the court, and does not establish the cohabitation urged in the argument of apellant's counsel. The court has to apply the law of the case to the facts which are established by the court. This rule must be applied in all the proceedings in the case. The evidence establishes the same facts as the court acted on, and the law of the case must always be applied when the facts are unchanged. To fail to do so would be a mere evasion, and in making such application to the evidence it must PATERSON, J., (concurring.) It is manbe held to prove all the cohabitation re-ifest that so long as the decree of the Unitquired by law. The opinion relative to this ed States circuit court (the execution of question was, in my judgment, erroneous. which is not stayed by appeal or writ of But the court is controlled by the law of error,-Slaughter House Cases, 10 Wall. the case, and cannot, in this case, reverse 273) remains in force and effect, a prosecuthe former decision. tion of plaintiff's cause of action in any proceeding in the state courts can result only in great expense and annoyance to all the parties, and a conflict of authority in which the paramount decree of the circuit court is bound to prevail. We know as well now as we shall ever know the scope and effect of the decree referred to, and the construction given to it by the federal judges in their decisions. Sharon v. Hill, 11 Sawy. 290, 26 Fed. Rep. 337; Sharon v. Terry, 36 Fed. Rep. 337, 9 Sup. Ct. Rep. 705. These decisions are official acts of the judicial department of the United States. The matters therein decided are matters of notoriety. The verity of such matters is not disputed, and we are as much bound to notice them as we are the laws of nature or the acts of the legislature. Section 1875, subd. 3, Code Civil Proc.; Romero v. U. S., 1 Wall. 742; "Matters Requiring Judicial Notice," 28 Amer. Law Reg. (N. S.) 193. It has seemed to me, therefore, that this court ought not to now reverse the order denying a new trial in the court below; but on the ground of public policy, of comity, and to prevent vexation and expense to the parties, and an unseem

The only question left open, in my judgment, by the former decision was whether the sexual intercourse between the parties in this case was licit or illicit. If it was had in pursuance of the present consent, it was licit; if not, it was illicit. I can find no evidence in the record that this intercourse was disconnected from the contract, and not in pursuance of it. I will add that in considering this point the contract must be regarded as genuine, in obedience to the former decision. It is argued that the decision herein is against law; but the evidence, as we have seen, establishes the facts as they are found, and the court on the former appeal held that the plaintiff was entitled to have judgment entered on them in her favor. It may be said, then, that on the same facts the court has held that the decision is not against law, for it affirmed a judgment entered on them. The opinion on the former appeal compels an adverse ruling on the contention that the decision is against law.

On the question of the illegality of the marriage contract by reason of the clause of secrecy, I cannot perceive that the ques-ly conflict between the state courts and a tion is changed on this appeal from what it was on the former appeal. In fact, the same point was made and argued on the former appeal as now, and determined adversely to the contention of appellant. The court there held that the marriage contract was not rendered void by the clause of secrecy, and to that ruling this court must defer.

I concur in the opinion of Justice WORKS as to the decree of the circuit court of the United States in Sharon v. Terry, and in what is said as to the ruling in regard to the admission of the testimony of Martha

federal court, claiming concurrent jurisdiction and a priority of right to enforce its decree, all proceedings should be stayed until it be finally determined by. the supreme court of the United States whether the prohibitory injunction of the circuit court should be made perpetual. But, as a majority of the court are of opinion that this is not the proper time and place to consider the effect of the decree referred to, but that a decision should be rendered on the matters contained in the record herein, without regard to the decisions of the national courts, I feel in duty bound to support my

associates in their judgment of reversal by | copulation was conclusive evidence of consaying that in my opinion no other conclu- summation. The only question was whethsion could have been reached on the ques-er the findings supported the judgment. The tions presented by the record without a contentions were that the secrecy clause inviolation of well-established principles of validated the contract, and that the findlaw. ing that the defendant had never introUnless we are prepared to say that in duced plaintiff as his wife, and that they actions tried without a jury the findings had never been reputed to be husband and of the court ought not to be disturbed on wife, showed there could not have been a account of errors in the admission and ex- living together in the way usual with marclusion of testimony, there are two or three ried people, or any mutual assumption of errors in this case which would of them-marital rights, duties, or obligations. The selves necessitate a reversal of the order. opinions rendered on the appeal from the The main contention in the case was upon judgment must be read in the light of the the question whether defendant and plain- facts found in the findings of the court. I tiff were husband and wife,-whether there do not see how there can be any misapprehad been a consent to marry, followed by hension as to what was decided on the fora mutual assumption of marital rights, mer hearing. It was held-First, that the duties, or obligations, as required by the contract to marry was valid, notwithCode to constitute marriage. The testi- standing the stipulation as to secrecy; and, mony of Hornblower, which was excluded, second, that the finding of a mutual aswas most material on this issue, and, as sumption of marital rights, duties, and obshown in the leading opinion, was clearly ligations was not nullified by the finding admissible. If admitted, it would have that the defendant had not introduced tended to show, at least, that there never plaintiff as his wife, and that they were not was a mutual assumption of marital rights, reputed to be husband and wife. The court duties, or obligations by the parties. If it held-and its conclusion has never been be true that plaintiff expressed the inten- effectively assailed, in my opinion, by the tion of commencing an action against de- arguments made herein, except in so far as fendant for breach of promise to marry, they dealt in sentiment, and were clothed that fact would show that plaintiff did not in phrases which tickle the ears, and please at that time regard herself as his wife, and the hearts of those who do not like the law, there is no pretense that a marriage oc- and which would be better directed if adcurred after the time of the conversation dressed to the legislature-that under the with Hornblower. Nothing could have law of this state, when parties competent been more pertinent to the question the to marry enter into a contract to marry, court had to determine, and, being the dec- and in pursuance thereof perform any marlaration of the party against her interest, ital right, duty, or obligation, the marriage it is impossible to tell, in view of the state is consummated; and that it would not lie of the evidence, what effect it might have in the mouth of one of the parties, after he had on the mind of the judge if he had ad- or she had enjoyed the person of the other, mitted and considered it. The evidence up- who had performed his or her part in good on the question whether the marriage con- faith in the consummation of the marriage, tract was genuine or not was conflicting. to say that the marriage was not complete The evidence of Hornblower was material because by mutual agreement it had not on that issue. The court below found that yet become known to their friends that they the parties to the marriage had "lived to- had entered into the contract, and had gether in the way usual with married peo- been enjoying the same bed. As Mr. Justice ple," and that there had been "a mutual MCKINSTRY well said: "It is incredible the assumption of marital rights, duties, or ob- legislature intended that copulation may ligations." This court has found that these take place before the marriage is complete, findings are not supported by the evidence; or to put it in the power of the man, after that they never lived together as married he has enjoyed the person of the woman, people usually do; and that there was no to say: 'I will proceed no further.' Yet it mutual assumption of marital rights, du- is the duty of the woman, after mutual conties, or obligations. If it be conceded that sent to present marriage, to live with the there was material evidence tending to sup- man, and their cohabitation must from the port these findings of the court, it must be nature of things create the presumption of admitted that the declaration sought to copulation, which reduces the statute to an be shown by the witness Hornblower-and absurdity." The combined wisdom of all we cannot say the court would not have who have attacked the reasoning upon believed him-would have tended strongly which the judgment was affirmed on the to show that she had never in good faith findings has been unable, in my judgment, assumed any marital rights, duties, or ob- to offer even a plausible explanation of the ligations. I agree that if there be a con- "logical felo de se,” in their construction of sent to marry, and any mutual marital du- the statute thus pointed out by Justice ty performed in good faith in pursuance of MCKINSTRY. But the questions before us the contract to marry, the marriage is com- now are whether the contract was made, plete. One act of coition is sufficient evi- and whether the evidence shows that there dence of consummation, but it must be an was a consummation of the marriage, a act performed in good faith, and in pursu- mutual assumption of marital rights, duance of the contract, by the party claiming ties, and obligations. On both of these the existence of the marriage; at least, in questions the evidence of Hornblower was order to consummate the marriage. It was most material, and it was prejudicial error not decided in the former decision herein to exclude it. that consent alone would constitute a marriage under the laws of this state, or that

The rulings of the court on the cross-examination of certain witnesses are as clear

ly erroneous. Nothing is better settled in | for the defendant, and the plaintiff apthis state than that the character of a wit-pealed from the judgment, and also from ness cannot be impeached by evidence of an order denying his motion for a new trial particular wrongful acts.