"Sec. 1035. The clerk must include in the judgment entered up by him any interest on the verdict or decision of the court from the time it was rendered or made, and the costs, if the same have been taxed or ascertained'; and he must, within two days after the same are taxed or ascertained, if not included in the judgment, insert the same in a blank left in the judgment for that purpose."

If the insertion of costs in the judgment is merely the ministerial act of the clerk,- an act which can be performed only in the cases in which the statute allows it, -the judgment for costs is void, as well when the memorandum has not been served on the opposite party as when no memorandum has been filed.

The omission from section 1033 of the Code of Civil Procedure of the clause in section 510 of the Practice Act, which provided that a failure by the prevailing party to file his memorandum of costs within the time limited should be deemed a waiver of his costs, is not a material circumstance. The code contemplates that such shall be the result, since the only costs which the clerk is authorized to insert are those claimed and "taxed or ascertained," in the manner provided.

4. It is said plaintiff, as successor in interest of Speer Riddell, is estopped from seeking relief in equity, because the latter ratified the sheriff's sale by receiving from the officer the excess of the proceeds of the sale beyond the amount of the judgment and the accruing costs. It does not appear from the complaint that Speer Riddell received, or that there was tendered to him, any part of the proceeds of the sale. And even if it should be conceded that there would be any presumption that the sheriff paid or tendered such excess to Speer Riddell, the defendant in execution,- in other words, a presumption. that the officer discharged his duty,- this would be met by the averment in the complaint that neither Speer Riddell nor plaintiff had any knowledge, notice, information,

or belief that any amount as for costs had been inserted in the judgment, or that any cost bill had ever been filed, or that any execution had ever been issued, or of any sale thereunder, or of any certificate or deed by the sheriff, until the 17th of November, 1875. Moreover, if defendant here could rely on a presumption that the sheriff did his duty, that officer fully discharged his duty by tendering the excess of the proceeds of the sale, if any excess there was, to Speer Riddell. There is no presumption that Speer Riddell received the money.

5. The mere fact that several separate tracts were sold together by the sheriff would not constitute a cause of action.

6. Respondent relies upon the omission to allege that the amount of costs inserted by the clerk was not justly due as costs; but if the service of the memorandum is a jurisdictional fact, and the claim of the plaintiff to any costs existed, as an enforceable claim, only after the statute was complied with, no sum was legally due for costs. when the clerk inserted a sum in the judgment.

Judgment reversed and cause remanded, with instructions to the court below to overrule the demurrer, with leave to the defendant to answer.

SHARPSTEIN, J., MYRICK, J., MCKEE, J., MORRISON, C. J., and THORNTON, J., concurred.

Rehearing denied.

[No. 20221. In Bank. - November 4, 1886.]

THE PEOPLE, Respondent, v. JOHN W. STOKES,

ADULTERY

ID.

ID.

ID.

TIFICATE.

APPELLANT.

PROSECUTION FOR

EVIDENCE OF MARRIAGE

CER

- The act of 1871-72, providing that in a prosecution for adultery the marriage of the defendant may be proved by the record of the marriage certificate, does not exclude other evidence in proof of the marriage.

EVIDENCE TO IDENTIFY PERSONS NAMED IN CERTIFICATE. On the trial of one John W. Stokes for adultery, the prosecution offered in evidence the record of a marriage certificate, showing that at a designated time and place one John Stokes and Rebecca Gibson were united in marriage by the minister making the certificate. A witness subsequently testified that at the time and place mentioned in the certificate he was present when a marriage was celebrated by the minister named therein between the defendant and one Rachael Gibson. Evidence was also given that the defendant and Rachael Gibson had lived together avowedly as man and wife for many years. Held, that the evidence was admissible as tending to identify the defendant and Rachael Gibson as the persons mentioned in the certificate.

In such a

REAL NAMES OF PARTIES MAY BE SHOWN. case, evidence that the real names of the parties married differ from the names given in the certificate is admissible, as the minister or other person authorized to perform the marriage ceremony is not required to guarantee that the parties were married by their true

names.

PRESUMPTION OF SUBSISTING MARRIAGE. In such a prosecution, after the marriage has been proved, its continuance is presumed until a dissolution by death or divorce is affirmatively shown.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Atwell & Bradley, for Appellant.

Attorney-General Marshall, for Respondent.

MCKINSTRY, J.- The defendant was found guilty of the misdemeanor defined in the first section of "An act to punish adultery," which reads: "Every person who lives in a state of open and notorious cohabitation and adultery is guilty of a misdemeanor, and is punishable," etc. (Stats. 1871-72, p. 380.)

The third section of the act provides: "A recorded certificate of marriage, or a certified copy thereof, there being no decree of divorce, proves the marriage of a person for the purposes of this act."

At the trial the prosecution called the county recorder of Tulare, the custodian of the records, who read from his records as follows:

"John Stokes to Rebecca Gibson. This certifies that on the twenty-second day of May, in the year of our Lord 1859, John Stokes of Tulare County, California, and Rebecca Gibson of the same county and state, were by me united in marriage at the school-house in the Persian district, in the said county, according to the laws of California and the customs of the church to which I belong. E. B. Lockley, Methodist Preacher. Filed for record June 18, 1859, at 10, A. M., and recorded same day at 2 o'clock, E. E. CALHOUN, Recorder."

P. M.

To the record the defendant objected that it was i̇rrelevant, immaterial, and incompetent, because it did not appear that the John Stokes married was the defendant. When the objection was made, the district attorney said: "We propose to follow this up with proof that the John Stokes mentioned in this record is the person mentioned in the indictment as John W. Stokes," and thereupon the objection was overruled.

The prosecution subsequently called a witness, who testified that in the year 1859 he was present in the "Persian school-house" when a marriage was celebrated by a Methodist preacher named Lockley, between the defendant and Rachael Gibson. This of itself was evidence of the defendant's marriage; the statute does not exclude all evidence of marriage other than the record of the certificate. If it be suggested that the jury may have disbelieved the witness, and relied on the record of the certificate as proof of the marriage, still the testimony of the witness was admissible as tending to identify the parties named in the certificate.

There was also evidence that the defendant and Rachael lived together, avowedly as man and wife, for many years. Under our law that would be evidence of a marriage in prosecution for bigamy. (Pen. Code, sec. 1106.) Even if it should be conceded that in this action it would not be evidence of marriage, it was evidence tending to identify the defendant and Rachael Gibson as the persons mentioned in the certificate.

It is said the record of a marriage between John Stokes and Rebecca Gibson was contradicted by evidence tending to prove that John W. Stokes was married to Rachael or Rachael M. Gibson. Counsel argue that in a criminal case, the jury "could not infer" against the defendant that Rachael M. Gibson was the person referred to in the certificate. But the jury were not left to infer the identity of the persons from the bald fact of identity in their surnames. There was evidence tending to prove that John W. Stokes and Rachael M. Gibson were the very persons married by the Methodist preacher, Mr. Lockley, in the Persian school district, in the year 1859, and other evidence tending to prove that John W. and Rachael M. were the persons mentioned in the certificate of record by the names John and Rebecca. The marriage was a valid marriage, even if the parties gave the wrong names to the preacher, or the latter mistook the names. Men and women are conjoined in matrimony, and a defendant charged with bigamy or adultery cannot in this country base a defense on the ground that he or his wife was married under an assumed name, not his or her real name. In such case evidence of the real names does not contradict the certificate, since the minister or other person authorized to perform the marriage ceremony is not required to guarantee the fact that the persons married were married in their true names. Certainly the omission of a middle name or initial does not invalidate the marriage nor detract from the effect of the recorded certificate.