LESSEE OF SARAH I. JEWELL AND OTHERS, PLAINTIFFS IN ERROR, v. BENJAMIN JEWELL AND OTHERS, DEFENDANTS.

The declarations of a deceased member of a family that the parents of it never were married, are admissible in evidence whether his connection with that family was by blood or marriage.

The acts and declarations of the parties being given in evidence on both sides, on the question of marriage, an adyertisement announcing their separation and appearing in the principal commercial newspaper of the place of their residence immediately after their separation, is part of the res gestu, and admissible in evidence. Whether or not it was inserted by the party, and if it was, what were his motives, are questions of fact for the jury.

If a written contract between the parties be offered in evidence, the purport of which is to show that the parties lived together on another basis than marriage, and the opposite party either denies the authenticity of the paper or alleges that it was obtained by fraud; the question, whether there was a marriage or not, is still open to the jury upon the whole of the evidence. Upon the two questions, 1st. Whether, "if before any sexual connection between. the parties, they, in the presence of her family and friends, agreed to marry, and did afterwards live together as man and wife," it was a legal marriage and the tie indissoluble even by mutual consent; and, 2d. Whether, "if the contract be made per verba de presenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation," it amounts to a valid marriage, which the parties (being competent as to age and con sent) cannot dissolve, and is as equally binding as if made in facie ecclesiæ; the court can express no opinion, being equally divided.

THIS case was brought up, by writ of error, from the Circuit Court for the district of South Carolina.

The facts which were not denied were few; nearly all the evidence being of a contradictory character. All this evidence was brought to the notice of this court, in the argument, in consequence of the refusal of the court below to grant the third instruction prayed for by the plaintiffs, which instruction will be stated hereafter.

The admitted facts were these:

About the year 1794 or 1795, Benjamin Jewell became acquainted with Sophie Prevost, a young girl, who, with her family, had shortly before emigrated from the West Indies to Savannah. They lived together and continued to do so for many years. They resided but a short time in Savannah, then removed to Barnwell, in South Carolina, and finally to Charleston. During this time,

Jewell's Lessee et al. v. Jewell et al.

many children were born, who were reared in the house where their parents lived, the mother passing by the name of Mrs. Jewell. In the year 1810, they separated by mutual consent, after executing the following paper.

"Articles of agreement between Benjamin Jewell and Sophie Prevost, and receipt of Sophie Prevost, dated 1810 and 1811. "Articles of agreement entered into this 4th day of December, 1810; Benjamin Jewell on the one part, and Sophie Prevost on the other.

"Whereas, the said Benjamin Jewell and Sophie Prevost have cohabited for several years past, and have had eight children, but are now willing and desirous to separate and live asunder, on certain terms and conditions hereinafter specified: Now this instrument of writing witnesseth, that the said B. Jewell and Sophie Prevost do agree henceforward to live separate and asunder. "The said B. Jewell, on his part, consents and engages that the said Sophie Prevost shall have under her sole and absolute control, and free from all restraint or control by the said B. Jewell, the following children, viz.: Juliana, Daniel, and Washington, each child having its clothing. The said Sophie Prevost, on her part, engages and consents, that the said B. Jewell shall have under his sole and absolute control, and free from all restraint or control by the said Sophie Prevost, the following children, viz. : Benjamin, Joseph, Hannah, Hetty, and Delia, with their clothing. The said Sophie is to pay all the expenses of clothing, education, and maintenance of the children above allotted to her; and the said Benjamin Jewell is to pay all the expenses of clothing, education, and maintenance of the children allotted to him; and moreover engages to pay for one year's schooling, viz., the sum of $40 for the child Juliana, in order to complete her schooling.

"The said Sophie engages not to disturb the said Benjamin, in respect to the management of the children allotted to him, nor in any manner control or interfere with them. And the said Benjamin engages in like manner in respect to those children assigned to the said Sophie.

"And in consideration of this separation and consent to live asunder, the said Benjamin engages to pay to the said Sophie Prevost the sura of $3000; and to give her a bill of sale of the fellow Jesse, the girl Harriet, the wench Nancy, with her three

Jewell's Lessee et al. v. Jewell et al.

children, Charlotte, Mary, and Charles; also, the following articles of furniture, (here follows a list of furniture ;) and in consideration of the above, on the part of said Benjamin Jewell, the said Sophie Prevost doth hereby release and discharge the said Benjamin Jewell from all claims and demands whatsoever. In witness whereof, the parties to these presents have set their hands, this 4th of December, 1810. BENJAMIN JEWELL, SOPHIE PREVOST."

"W. L. SMITH.

(Note. The signature of W. L. Smith in the original paper is written with pencil.)

It was admitted that Sophie Prevost gave sundry receipts for the cash and furniture mentioned in the above agreement.

It was further admitted, that in June, 1813, Benjamin Jewell was married in Richmond, Virginia, to Sarah Isaacs, by the regular minister of the Hebrew congregation, according to the rites and ceremonies observed by the Jews, soon after which they removed to the state of Louisiana.

In 1818, Sophie Prevost married a man by the name of Storne, continuing to reside in Charleston.

In 1828, Benjamin Jewell died, intestate,. in Louisiana;. and his widow and children living there, brought an ejectment against his children in Charleston, to recover a house and lot, of which the latter were in possession.

The whole question turned upon the validity of the first marriage; there being no controversy about the validity of the second, in case Jewell, at the time of contracting the second marriage, had not a wife living.

To support the first marriage, it was given in evidence by Sophie Prevost, (who had released her interest in the property in dispute,) and by others, that at the time of the marriage she and her family had recently arrived from the West Indies; that she was very young; that they brought with them some negroes, of whom Jewell received three as her portion; that, in consequence of her being a Catholic and Jewell a Jew, the ceremony of marriage between them was performed by a magistrate named White, in the presence of her family and other persons; that she was entirely ignorant of the English language; that she lived with Jewell as his wife, in his house, and under his name; that they removed to Barnwell district in South Carolina, where also she

Jewell's Lessee et al. v. Jewell et al.

associated with the neighbourhood as his wife; that they then removed to Charleston, where Jewell kept a clothing store; that she attended to the concerns of the shop and family as Mrs. Jewell; that the children were circumcised according to the Jewish laws, and that none but legitimate children are so; that she was recognised in society as his wife; that, in 1806, she executed a release of dower in some property which Jewell had mortgaged, and that such release was in the form which the law prescribed for wives; that according to the general opinion among Hebrews, a marriage, in the scriptural sense, between a Christian and a Jewess is not legal; but that the Jewish law considers a connection between a Hebrew man and a Christian woman, as concubinage; that it is the duty of a Jew to obey the laws of the country in which he lives; that, if a divorce be obtained according to their law, by mutual consent, it is not considered unlawful to marry again; that the man writes a paper to the effect that the woman is at liberty to marry again, and the act on the part of the woman is her receiving it and assenting to it.

The evidence offered by the plaintiffs in the suit below, to rebut the idea that a marriage had ever taken place between Jewell and Sophie Prevost was, in the first place, the following paper:

"Savannah, 10th March, 1796. "Received of Benjamin Jewell, the sum of five hundred dollars, in full for the cause of action which I brought against him on a promise of marriage; which sum of five hundred dollars, I acknowledge to be in full compensation, and from which I do release and exonerate the said Benjamin Jewell of all actions, demands, or engagements, whatsoever, from the beginning of the world to the present day. [The remaining part of the paper is characterized by the court as gross and indecent, and the Reporter does not think proper to insert it. Its purport was to recognise a continuance of the connection on another basis than marriage.] SOPHIE PRovost.

"Witness,

"CHARLES HARRIS, GEO. J. HULL."

It was also given in evidence by the plaintiffs that the above paper was recorded in the clerk's office of the Superior Court for Chatham county, (the county in which Savannah is situated,) in

Jewell's Lessee et al. v. Jewell et al.

the month of August after its date, on the oath of Mr. Harris, one of the subscribing witnesses. The handwriting of Mr. Harris, who was a distinguished counsellor at law in Savannah, as well as that of Hull, the other subscribing witness, who was a deputy marshal of Georgia, was proved by a judge and by one of the members of the Savannah bar. It was also given in evidence that Charles Harris was of the highest standing and character; was a distinguished man in the state, and understood and spoke French fluently. No other part of the paper was in his handwriting except the words "witness, Charles Harris."

It was also given in evidence by the plaintiffs, that upon an examination of the minutes of the courts, where the record of magistrates still remains, the name of White, who was said to have performed the marriage ceremony, did not appear as a justice of the peace, in Savannah, in the year 1796, or at any time previous.

It was also given in evidence by the plaintiffs, that Jewell and Sophie Prevost were not considered to be married, by one Borbot, the clerk of Jewell, or by the persons with whom he associated.

It was further given in evidence on behalf of the plaintiffs, by the Rev. Mr. Poznanski, the officiating minister of the Hebrew congregation in Charleston, that if a Jew has a child by a person who is not a Jewess, the rite of circumcision may be performed, and that it is not necessary (for circumcision) that the child should be legitimate.

To rebut all this evidence, the defendants gave testimony, by Sophie Prevost or Jewell, that she never signed the paper, purporting to be a release of all damages, &c., or any paper of the kind, and that she never was acquainted with either Harris or Hull; and by R. W. Pooler, the clerk of the court, that aldermen of the Common Council of Savannah were ex officio justices of the peace, for all purposes, within the town and hamlets of Savannah, but that he did not know whether or not White was an alderman in the years 1794, 1795, or 1796.

There were two bills of exceptions taken in the court below; the first of which related to the admissibility of certain evidence which the court rejected; and the second to the instructions prayed to be given to the jury, and refused by the court, as also to the instructions actually given.