the respondent herein, Sarah Althea Hill, her heirs, assigns, executors, administrators, and all persons claiming any interest thereunder by or through said respondent, and her and their agents and attorneys, be, and they and each and all of them are, hereby perpetually enjoined from alleging the genuineness or the validity of said instrument, and from making any use of the same in evidence or otherwise to support any right claimed under it, or making any claim, or setting up any right, interest, or claim of any kind, under or by virtue of said instrument or declaration of marriage, either as wife of complainant, or for any interest in property or right of any kind or nature against said complainant, his heirs, executors, administrators, or successors in interest, and that complainant recover his costs of suit." (See Sharon v. Hill, 11 Saw. 290; Sharon v. Terry, 36 Fed. Rep. 337.)

This decree was rendered subsequent to the decree o' the court below, and has since been revived in the name of the personal representatives of the said William Sharon, now deceased. (Sharon v. Terry supra.) In conformity to said decree above mentioned, a writ of injunction has issued out of the circuit court enjoining the respondent, in the language of said decree, from in any way using or asserting any rights under said pretended marriage contract.

The appellant has filed in this court these proceedings in the United States court as a bar to the respondent's rights under the judgment in the court below, and by virtue thereof asks this court to declare the marriage contract a forgery, and give effect to the decree of said. United States court.

The kind of judgment to be entered by this court to give effect to said last-named decree is not pointed out in the brief of the learned counsel for the appellant. They assert with confidence that they are entitled to some relief, but what it shall be is left to the court to find out

The point made and relied upon by the appellant as to this branch of his case is, that the court below and the federal court had equal and concurrent jurisdiction of the subject-matter and of the parties; that the contract declared to be invalid by the federal court is the basis and foundation of the respondent's action now be fore us, and that the federal court having first taken cognizance of the case, its judgment must prevail over that of the state court, in which the action was commenced at a later day, no matter in which court final decree was first rendered.

This presents for our consideration the somewhat novel and important question, whether this. court can, upon undisputed evidence of the facts relied upon by the appellant, step aside from the strict line of its appellate jurisdiction to adjudicate upon the effect of these conflicting decrees.

The general rule undoubtedly is that this cannot be done. This is conceded by counsel for appellant, but they contend that there are exceptions to the rule, and that in extraordinary cases, where, but for the right of an appellate court to look beyond the record on appeal, great wrong and injustice must result, the court will exercise such right.

There are cases which give countenance to this contention, and in which appellate courts have, in furtherance of justice, considered matters dehors the record, and acted upon them. (Poole v. Seney, 70 Iowa, 275; Waldron v. Ely, 2 N. J. L. 79; Steelman v. Ackley, 2 N. J. L. 165; Anderson v. Radley, 3 N. J. L. 1034; Dakota County v. Glidden, 113 U. S. 222, 226; United States v. Schooner Peggy, 1 Cranch, 103, 109; United States v. Preston, 3 Pet. 57; Yeaton v. United States, 5 Cranch, 281; Smith's Com. secs. 772, 774; Commonwealth v. Duane, 1 Binn. 601, 608; 2 Am. Dec. 497.) But a careful examination of these cases discloses the fact that the matters brought to the attention of the appellate courts showed

beyond controversy either that the judgments appealed from were invalid or erroneous, and that in case such matters were disregarded by the courts, the parties contending against the judgments appealed from must be left without any remedy if the same should be affirmed. These cases differ materially from the case at bar in both these respects.

If this court should consider the offered evidence, and give it all the weight that is claimed for it by the appellant, it would not prove either that the order appealed from is erroneous or that the judgment rendered by the court below is invalid. The case, as presented by the record on appeal and the offered evidence, is simply this: Conceding that the subject-matter of the two actions was the same, and that the federal court had jurisdiction in the premises, both of which the respondent denies, here are two courts of concurrent jurisdiction, both of which have assumed and are exercising jurisdiction over the same subject-matter and the same parties. The federal court has first taken jurisdiction, but this fact is not called to the attention of the state court in any legal way, and it proceeds to final judgment. Subsequently, the federal court renders a judgment contrary to and in direct conflict with that of the state court. Does this prove that the judgment of the state court is either void or erroneous? Not so. But as a matter of public policy, one or the other of these conflicting judgments must be held to prevail over the other, whether right or wrong; which one is not for us to say. Both of the judgments may be valid, and as they may have been rendered upon different evidence, it may be that neither of them is erroneous. It is purely and solely a question, therefore, as to which one of them shall prevail over the other, and this is a question that cannot be determined on this appeal.

The appellant is not without his remedy. If the or der appealed from should be affirmed, and an attempt

be made to enforce it, upon the remittitur of this court being sent down, the question as to the force and effect of the two judgments could then be determined by a direct proceeding for that purpose.

We do not regard it as at all necessary to extend this necessarily long opinion by attempting to review and distinguish the above cases cited by counsel, except in the general way above stated. We are quite clear that they do not cover this case.

Counsel have argued at great length the question whether the federal court had jurisdiction in the action before it, and as to the effect of the conflict in the jurisdiction and final judgments of the two courts; but the conclusion we have reached renders it unnecessary for us to consider these questions.

Before passing to an examination of the questions directly presented by the record, it may be well to consider and determine what effect the decision of this court on the appeal from the judgment has upon the present appeal. It is contended by the respondent, that so far as the question as to what is necessary to constitute a valid marriage is concerned, the decision on the former appeal has become the law of the case, and conclusively binding upon this court, as well as upon the parties to the action. In view of this contention, it may be important to ascertain definitely what was actually decided on the former appeal.

As to the acts and conduct of the parties tending to show a valid marriage, the court below found:

"2. That on the twenty-fifth day of August, A. D. 1880, the plaintiff and defendant each signed a certain declaration of marriage in the words and figures following, to wit:

"In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, Sarah Althea Hill, of the city and county of San Fran

cisco, state of California, aged twenty-seven years, do

1

here, in the presence of Almighty God, take Senator William Sharon, of the state of Nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon of the state of Nevada. SARAH ALTHEA HILL.'

"AUGUST 25, 1880, SAN FRANCISCO, CAL. "I agree not to make known the contents of this paper or its existence for two years, unless Mr. Sharon himself see fit to make it known. S. A. HILL.'

"In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, Senator William Sharon, of the state of Nevada, aged sixty years, do here, in the presence of Almighty God, take Sarah Althea Hill, of the city of San Francisco, California, to by my lawful and wedded wife, do here acknowledge myself to be the husband of Sarah Althea Hill. WILLIAM SHARON, Nevada.

"Which was the only written declaration, contract, or agreement of marriage ever entered into between said parties, and at the time of signing said declaration plaintiff and defendant mutually agreed to take each other as and henceforth to be to each other husband and wife. "3. That afterwards, and about the day of September, 1880, the plaintiff and defendant commenced living and cohabiting together in the way usual with married people, although their cohabitation was kept secret, and so continued for the space of more than one year and down to the twenty-fifth day of November, 1881, and during all of said time the plaintiff and defendant mutually assumed towards each other marital rights, duties, and obligations.

"4. That during the time plaintiff and defendant so lived together, defendant visited her relations with her, escorted her to places of amusement, and introduced her to respectable families and to members of his own fam