wholly failed, so that no injustice is done them by setting the deed aside.

As to the third defense, that the wife of defendant Orsamus A. Lockwood should have been made a party, the bill sets up that the defendant is a married man. It was not demurred to. The complainant and her lessee are in possession of the land in controversy. Orsamus A. Lockwood and his wife live upon the 50 acres of land deeded to him by his father. The interest of Mrs. Orsamus A. Lockwood in the land in controversy is but an inchoate dower interest. It is evident that this interest will never be anything more if the deed to her husband is canceled by a decree of this court. In Miller v. Thompson, 34 Mich. 12, Justice COOLEY used the following language:

"It is to be observed, also, that the objection for want of parties was not taken by any pleading, but for the first time at the hearing. At that stage of the case any defect that does not preclude a decree that does justice as between the parties, and fully determines the controversy as between them, should be overlooked. Payne v. Avery, 21 Mich. 524."

See Woodward v. Clark, 15 Mich. 110; 15 Enc. Pl. & Prac. 681.

The decree is affirmed, with costs.

The other Justices concurred.

LORIMER v. LORIMER.

1. COMMON-LAW MARRIAGE EVIDENCE.
Evidence that plaintiff lived with decedent for many years as
his wife, and that he spoke of and introduced her as such,
was sufficient to go to the jury on the issue of a common-law
marriage between them, although it appeared that they had
at one time lived together in a state of concubinage, that no
marriage ceremony was ever performed, that she was known
by, and received and executed conveyances in, her maiden
name, and that he executed conveyances describing himself
as a bachelor. GRANT, J., dissenting.

2. SAME.

An agreement to live together as husband and wife, though intended to be carried out, unless acted on by the parties actually living together and cohabiting as husband and wife, is not sufficient to constitute a common-law marriage.

3. SAME-ESTATE OF ALLEGED HUSBAND - EJECTMENT BY WIFEPLAINTIFF AS WITNESS-COMPETENCY.

An action of ejectment by one claiming as the common-law wife of a decedent, against his heirs and the tenants of his ad ministrator, all of whom deny the marriage, is within 3 Comp Laws 1897, § 10212, forbidding the opposite party, in a suit defended by the heirs of a deceased person, from testifying to matters which, if true, must have been equally within the knowledge of decedent.

4. SAME ATTORNEY AND CLIENT-PRIVILEGED COMMUNICATIONS. Where the marriage of plaintiff with a deceased person is in issue, an attorney cannot testify to statements by the deceased concerning his relations with plaintiff, made in the course of a consultation in regard to making provision for her.

5. TRIAL-EXAMINATION OF WITNESSES-TESTIMONY ON FORMER HEARING--COPIES.

The practice pursued at the trial of permitting counsel for plaintiff to hand to plaintiff's witnesses, without any appar ent necessity or reason, a copy of their testimony as given on a former hearing, and thereafter to direct their attention to the subject-matter covered by the copies, was disapproved.

6. SAME STIPULATION-QUESTIONS FORECLOSED. Defendants in ejectment cannot be heard to object that the lands described in the declaration are in the possession of several different persons, where an attorney for defendants agreed before commencement of suit that the question of possession would not be raised.

Error to Wayne; Donovan, J. Submitted June 5, 1900. Decided September 18, 1900.

Ejectment by Emily Lorimer against David Lorimer and others. From a judgment for plaintiff, defendants bring error. Reversed.

James H. Pound, for appellants.

Flowers & Moloney, for appellee.

MOORE, J. This is an action of ejectment brought by the plaintiff, who claims to be the widow, by virtue of a common-law marriage, of Thomas Lorimer, deceased. From a verdict in her favor, the defendants, who represent the estate of Thomas Lorimer, appeal. It is the claim of defendants that the testimony, construing it most favorably for plaintiff, does not show a marriage between the parties, and that the court should have directed a verdict in favor of defendants for that reason.

The plaintiff was sworn as a witness. Her testimony shows that prior to 1882 she was a woman of the town, and that Lorimer had illicit relations with her. She says, in substance, that in 1882 Mr. Lorimer said that he was tired of the way in which they were living, and proposed that they should live together as husband and wife, to which she assented. She says that no marriage ceremony was performed, but that they lived together as husband and wife, she keeping the house, and he furnishing it, until the time of his death, in 1895; that they regarded each other as husband and wife; and that Mr. Lorimer from that time introduced her as his wife, and they treated each other as husband and wife. Many witnesses were

sworn whose testimony tended to corroborate her in relation to the manner in which they lived, and the representations made by Mr. Lorimer as to their relations. Testimony was introduced on the part of the defense tending to show that plaintiff, up to the time of the death of Mr. Lorimer, went by the name of Bellmore, and was so known in the city directory; that she took a deed of land in that name, and signed a conveyance, not long before the death of Mr. Lorimer, by the name of Bellmore; that Mr. Lorimer, who dealt largely in real estate, described himself in the various conveyances he made as a bachelor.

It is insisted on the part of the defendants that the relationship was simply one of concubinage; citing Clancy v. Clancy, 66 Mich. 202 (33 N. W. 889). It was long ago decided in this State that a marriage ceremony was not necessary to constitute a valid marriage. In Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), Justice COOLEY, speaking for the court, said:

"But, had the supposed marriage taken place in this State, evidence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and cooperation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts, the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it. Fenton v. Reed, 4 Johns. 52 (4 Am. Dec. 244); Jackson v. Winne, 7 Wend. 47 (22 Am. Dec. 563); Starr v. Peck, 1 Hill, 270; Rose v. Clark, 8 Paige, 574; In re Taylor, 9 Paige, 611; Clayton v. Wardell, 4 N. Y. 230; Cheney v. Arnold, 15 N. Y. 345 (69 Am. Dec. 609); O'Gara v. Eisenlohr, 38 N. Y. 296; Pearson

v. Howey, 11 N. J. Law, 12; Hantz v. Sealy, 6 Bin. 405; Com. v. Stump, 53 Pa. St. 132 (91 Am. Dec. 198); Overseers of Poor of Newbury v. Overseers of Poor of Brunswick, 2 Vt. 151 (19 Am. Dec. 703); State v. Robd, 12 Vt. 396; Town of Northfield v. Town of Vershire, 33 Vt. 110; Duncan v. Duncan, 10 Ohio St. 181; Carmichael v. State, 12 Ohio St. 553; State v. Patterson, 2 Ired: 346 (38 Am. Dec. 699); Town of Londonderry v. Town of Chester, 2 N. H. 268 (9 Am. Dec. 61); Keyes v. Keyes, 2 Fost. (N. H.) 553; Bashaw v. State, 1 Yerg. 177; Grisham v. State, 2 Yerg. 589; Cheseldine's Lessee v. Brewer, 1 Har. & McH. 152; State v. Murphy, 6 Ala. 765 (41 Am. Dec. 79); Potier v. Barclay, 15 Ala. 439; Dumaresly v. Fishly, 3 A. K. Marsh. 368; Graham v. Bennet, 2 Cal. 503; Case v. Case, 17 Cal. 598; Patton v. Philadelphia, 1 La. Ann. 98; Holmes v. Holmes, 6 La. 463 (26 Am. Dec. 482); Hallett v. Collins, 10 How. 174."

In Peet v. Peet, 52 Mich. 464 (18 N. W. 220), it was said:

"But an actual ceremony of marriage is not essential to the establishment of the relation of husband and wife. It is sufficient that a man and woman of due competency, and in respect to whom no impediment exists, consent to take each other as husband and wife, and actually cohabit as such. The case of Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), determines this for this State, and refers to many decisions in other States to the same effect."

See People v. Girdler, 65 Mich. 68 (31 N. W. 624).

In Williams v. Kilburn, 88 Mich. 279 (50 N. W. 293), the wife, pending a suit for divorce, but before decree, married again. After the decree was obtained, the parties agreed that they should live and cohabit together as man and wife, and did so, though no marriage ceremony was again performed. The court said:

The facts set forth show that, after plaintiff obtained her divorce, it was agreed that they should live and cohabit together as man and wife, which they continued to do for three years thereafter. The formal marriage ceremony may be treated as evidence, with what subsequently occurred, of the nature of the relation which they assumed