was, first, that of the plaintiff herself, who, after testifying to her age and place of residence; was interrogated as follows: 'Q. Whereabouts were you married? A. Kokomo, Indiana. Q. To whom were you married? A. Orris O. Budd.'. The defendant hereupon interposed an objection to this evidence as incompetent, irrelevant, and immaterial, as calling for the conclusion of the witness, and not the best evidence. The objection was overruled, whereupon the witness proceeded to testify that she had the certificate of marriage with her. . . . The plaintiff was then asked by whom she was married-a minister or an official, and an objection to this question having been offered and overruled, she answered that she was married by the Rev. Mr. Floyd, a minister of the Christian church in Kokomo. She was then asked whether a license had been issued to herself and husband prior to said marriage, which question she answered in the affirmative. She then proceeded to testify that from the time of this marriage in 1901, herself and husband had lived together as husband and wife in various places, and that a strong and mutual affection had existed between them up to about the year 1913, when the affections of her husband began to cool until a few months later when they reached a point of estrangement without any fault on her part, but in spite of her efforts to retain her husband's affections. He finally left her, suggesting that she had better get a divorce. The plaintiff then proceeded to testify to the relations which she began to discover as existing between her husband and the defendant, and finally to the episode of surprising her husband at the mine, where he was employed, in a compromising position with the defendant. We are of the opinion that the evidence thus presented by the plaintiff in relation to her marriage to Orris O. Budd, and to the fact that for several years prior to the misconduct of the defendant resulting in the alienation of his affections the plaintiff and Orris O. Budd had been deporting themselves as husband and wife, was properly admitted by the trial court, and was sufficient to establish prima facie the fact that the plaintiff and Orris O. Budd were husband and wife. Conceding that the laws of Indiana with relation to the solemnization of marriages will be presumed to be the same as those of California upon that subject, it does not follow therefrom that in making proof of the existence of

the marriage relation it would be necessary to establish the successive statutory steps to be taken prior to and including the solemnization of such marriage specified in sections 68 to 74, inclusive, of our Civil Code. Section 57 of the Civil Code provides as follows: "Sec. 57. Consent to marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases.'

[2] "We are of the opinion that the intent of this section of the Civil Code was to enable parties to or persons present at the solemnization of a marriage to testify to the fact within their knowledge that such marriage actually took place; and when to such testimony the additional evidence is educed showing that since said marriage the parties thereto have deported themselves as husband and wife, a prima facie case has been sufficiently shown. Subdivision 30 of section 1963 of the Code of Civil Procedure, dealing with disputable presumptions, specifies as one of these the presumption 'that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.' That it was the intent of our lawmakers to render such proof sufficient to make out prima facie the status of husband and wife would seem to be also deducible from the fact that even in criminal cases no higher form of proof is required in this state. Section 1106 of the Penal Code provides that 'upon a trial for bigamy it is not necessary to prove either of the marriages by the register, certificate or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases.' That the rules of evidence above stated are applicable to proof of the existence of the marriage relation in other states, see Barber v. People, 203 Ill. 543, [68 N. E. 93]; Franklin v. Lee, 30 Ind. App. 31, [62 N. E. 78]; Mathews v. Sil vander, 14 S. D. 505, [85 N. W. 998]; Jacobsen v. Siddal, 12 Or. 280, [53 Am. Rep. 360, 7 Pac. 108]; Commonwealth v. Bill, 156 Mass. 226, [30 N. E. 1016]; Murchison v. Green, 128 Ga. 339, [11 L. R. A. (N. S.) 702, 57 S. E. 709]; Commonwealth v. Hayden, 163 Mass. 453, [47 Am. St. Rep. 468, 28 L. R. A. 318, 40 N. E. 846].

"We are, therefore, of the opinion that the plaintiff, by the form of evidence which she presented to the trial court, sufficiently made out a prima facie case of the existence of the relation between herself and Orris O. Budd of husband

and wife, that the objections of the defendant to such evidence were properly overruled, and that her present contention that the same was insufficient to prove the fact in issue cannot be sustained."

[3] Appellant's second contention is that the trial court erred in excluding certain statements and declarations made by one R. E. Fisher, claimed by appellant to have been a member of the conspiracy which she affirmed had been formed for the purpose, through a trick, of getting her in a false and apparently improper position with Budd. An understanding of this point requires a somewhat extended reference to the proceedings which occurred in reference thereto at the trial. John F. McClure, a witness on behalf of appellant, was asked this question: "Did you at any time during that year [1913] have a conversation with R. E. Fisher and Mr. Macy in the city of Los Angeles relative to any controversy or proceedings had or taken by Mr. Fisher in any case?" An objection to the question was overruled and the witness answered: "I heard a conversation." He was then asked: "State when and where and the parties present at the time of the conversation," which question was objected to as incompetent, irrelevant, and immaterial, calling for hearsay testimony. The court thereupon asked: "This is the same conversation taken up before as to acts of various conspirators and matters relating thereto, that is the purpose of the offer?" To which appellant's attorney replied in the affirmative. A colloquy then followed between court and respective counsel, in which the court inquired if it was claimed that Fisher was a conspirator, and respondent's counsel replied that it was not so claimed in the answer, the averments of which did not in terms name Fisher as a conspirator as it did the plaintiff, Budd, and several others, but averred that respondent's attorney had employed Fisher "special deputy constable of the city of Long Beach" to serve a copy of the complaint and summons in this action upon defendant, and instructed and directed him to go to the Perris mine, where the defendant was living and Budd was working, and serve said copy of summons and complaint in the manner set forth in the answer; thereupon the court said: "The court. . . is going to hold that any act or declaration of Mr. Fisher relative to matters arising out of, and within the scope of his employment, are

admissible in evidence. . . . I am only holding that they can prove what they aver in the answer, . . . that they can prove, the employment of Fisher being admitted, that they can prove the allegations of the answer concerning that employment." Thereupon counsel for defendant made a comprehensive statement of what he offered to prove by the witness, which included that the declarations of Fisher, which he desired to put in evidence, were made on March 10, 1913 (the day following the discovery of defendant and Budd in a compromising position in defendant's room at the Perris mine); that the return of the summons had not then been made; that Fisher had not then been paid his compensation; that in pursuance of his employment Fisher had telegraphed plaintiff's attorney, who employed him, to meet him either at Long Beach or at Los Angeles on the morning of March 10th; that on that morning, and before Fisher had reached the office of plaintiff's attorney, Fisher, in the presence of one Macy and the witness, stated he had been to the Perris mine and had gone there under the instructions and directions of plaintiff's attorney "for the purpose of executing a frame-up, and that it had been agreed between Mrs. Budd, Whealton (plaintiff's attorney), Burroughs (plaintiff's brother), and other parties at the mine, that Budd should enter the room of Mrs. Morgan at a time and place to be agreed upon, and that the whole deal was carried out as planned; that it took him to frame up and pull off a deal like that; that the house of Mrs. Morgan was entered on the night of March 9th and that he held a gun on Mrs. Morgan and compelled her to submit to the taking of a flashlight picture; that a demand was made for a settlement or a payment of money, and that Mrs. Morgan did then and there agree to pay, and that he, Fisher, would get his, to wit, three thousand dollars." Plaintiff objected to the introduction of this testimony on the "ground that it was incompetent, irrelevant, and immaterial; calling for hearsay testimony, especially that portion . . . as to what the conspiracy was, and that it is prejudicial," calling for the recital of transactions by an officer, made after he had made the service for which he was employed, and that any statement or remarks made by him after he had performed his services as an officer could in no way bind any of the parties to the action. The court, in ruling upon this objec

tion, said: "The court will hold no declarations, except those made during the pendency of the conspiracy and in furtherance of its objects, are admissible as against the co-conspirators,' " which would mean that the statements made by Fisher, after returning to Los Angeles, relative to the things he went to the mine to do, were not admissible, "in so far as all proof is concerned at the present time the court does not see there is sufficient before it to justify it in holding that the employment was in effect after March 9th or 10th, whatever it may be." The result was that the proffered evidence was rejected, which ruling we think was error, and that defendant should have been permitted to introduce the declarations. At the time they were made the objects of the conspiracy had not been fully accomplished, nor was Fisher's active participation in it at an end; he had not at that time made his final report to plaintiff's attorney, neither had he received the three thousand dollars which he stated was to be paid him out of the money which might be forced from the defendant by threats to send a copy of the flashlight picture showing defendant in bed with Budd, taken by those acting with and for plaintiff at the mine, on the night of March 9, 1913, to each of the heirs of defendant's deceased husband, all of which was fully known to Fisher, he being one of the party that took the photograph and having taken an active part not only in what transpired that night, but in planning and carrying out the invasion of defendant's room. It is apparent that the trial court correctly regarded Fisher as a member of the alleged conspiracy. Conceding that he may have been employed to serve the summons and complaint upon the defendant, the record shows that his connection with the matter went beyond that of a officer engaged for the sole purpose of serving legal papers. The evidence established prima facie that in reality he was a member of the alleged conspiracy, rather than an employee thereof. It was not necessary for Fisher, in order to make the aforementioned service, to spend two days and nights in the vicinity of defendant's mine before making such service, and to make it at night-time, under the circumstances which he did, when it clearly appears that it could have been made at a much earlier date in the daytime and in the usual way. It was not necessary that he should become a member of a party organized for the express pur