At common law, in cases of alleged bigamy, proof of an actual marriage, or at least an admission of former marriage was ordinarily required. The presumption of a marriage (in favor of morality), arising in civil causes, from open and avowed cohabitation as man and wife, was overcome in cases where the person was charged with the crime of bigamy by the counter-presumption of defendant's innocence. If the common-law rule obtain in prosecutions like the present, still evidence that the defendant and Rachael M. lived together for twenty years as man and wife, and that she bore children to him, tended to identify John W. and Rachael M. as the persons mentioned in the certificate by the names of John Stokes and Rebecca Gibson.

It is said that the prosecution, relying on the statutory evidence of the marriage, should have proved that the parties had not been divorced. But the statute does not declare that a recorded certificate of marriage proves marriage only when accompanied by evidence that the parties have not been divorced. It proves that marriage, and also the continuance of the marriage, “there being no decree of divorce." Aside from the inherent difficulty of proving the negative, a decree of divorce could not affect the evidence of the fact that marriage was contracted, since marriage must precede divorce. The status of marriage being proved, it is presumed to continue until death or divorce. This presumption can be overcome only by proof of the dissolution of the marriage. It was incumbent on the prosecution to prove a subsisting marriage at the time of the offense charged, but the subsisting marriage was proved prima facie by proof that the marriage was contracted.

Appellant also claims that there is no proof the defendant's wife was living at the time of his alleged cohabitation with the woman named in the indictment. In the absence of affirmative evidence, the dissolution. of the marriage is not to be presumed to have occurred,

either by divorce or by the death of one of the parties to it. In the latter case the presumption of death is created by evidence that a party to the marriage has not been heard from in seven years. (Code Civ. Proc., sec. 1963.) There is no presumption of law that life will not continue for any period, however long. But juries are justified in presuming as a fact that a person is dead who has not been heard of for seven years. (Roscoe's Crim. Ev. 18.) Under our code, the jury is bound to presume that a person not heard from in seven years is dead. But this presumption is disputable, and may, in its term, like the presumption of continued life, be overcome by other evidence. (Code Civ. Proc., sec. 1963.)

Moreover there was affirmative evidence that the wife was still living at the time of the trial of this action. The witness Elizabeth Balaam testified: "She is in San Luis Obispo County." It would be to distort the ordinary meaning of language to hold that the witness said, or intended to say, her sister was buried in San Luis Obispo.

The jury were justified in holding that the defendant was a married man. There was abundant evidence that while married he "lived in a state of open and notorious cohabitation and adultery."

Judgment and order affirmed.

SHARPSTEIN, J., MCKEE, J., THORNTON, J., and MyRICK, J., concurred.

[No. 9698. Department One. November 15, 1886.]

SANTA CLARA VALLEY MILL AND LUMBER COMPANY, Appellant, v. BOARD OF SUPERVISORS OF SANTA CRUZ COUNTY, RESPONDENT.

PRACTICE

COSTS

CLERK CANNOT ENTER JUDGMENT FOR PENLING MOTION TO RETAX. - The clerk of the court has no authority to enter a judgment for cost, while a motion to retax is pending.

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

In April, 1879, the plaintiff brought an action against the defendant to recover damages on account of the location of a public road. Before the trial of the action, the defendant rescinded its order concerning the location of the road, and the action was on motion dismissed and a judgment for costs entered against the defendant on the 30th of January, 1880. The plaintiff filed and served its memorandum of costs on the 29th of January, 1880. The defendant on the same day served and filed a notice of motion to retax the costs. Pending the motion, the plaintiff presented its claim founded on the judgment to the defendants, and the same was rejected. The plaintiff thereupon brought the present proceedings by mandamus to compel the defendant to allow the claim.

Charles B. Younger, for Appellant.

William T. Jeter, for Respondent.

The COURT. The clerk had no authority to enter the judgment for costs while a motion to retax was pending. (Riddell v. Harrell, No. 11363, ante, p. 254.)

Judgment affirmed.

[No. 20159. In Bank.

November 16, 1886.]

EX PARTE ELLEN CASEY, ON HABEAS CORPUS.

ESTATE

OF DESCENDENT PROPERTY IN POSSESSION OF PERSON CLAIMING TITLE- COURT CANNOT COMPEL DELIVERY - CONTEMPT. - Under sections 1459 et seq., of the Code of Civil Procedure, the Superior Court, in a proceeding for the settlement of the estate of a decedent, has no power to order property in the possession of a person claiming title thereto to be delivered up to the executor or administrator, or deposited subject to the order of the court; and the refusal of the person claiming title to obey such an order is not a contempt.

APPLICATION for a writ of habeas corpus. The facts are stated in the opinion.

G. W. Langan, and H. C. Newhall, for Petitioner.

M. Cooney, for Respondent.

FOOTE, C. Mrs. Ellen Casey, the petitioner, is in possession of a sum of money which the executor of a certain Mrs. Zephyr claimed as belonging to the estate of his decedent. After an examination under the statute (Code Civ. Proc., secs. 1459-1461), Mrs. Casey was cited to show cause why she should not be punished for a contempt of the Probate Court, in not obeying its order commanding her to deposit the money in a bank, subject to that tribunal's order.

She appeared, claimed that the money had been given to her by Mrs. Zephyr before the latter's death, and introduced evidence tending to establish her own title to it. The court heard testimony in favor of and controverting her right to the money, and then made its order, committing her for contempt in refusing to deposit it in a bank. The petitioner has sued out a writ of habeas corpus for the purpose of regaining her liberty.

According to the evidence adduced in this proceeding, the petitioner was either the owner by gift from Mrs. Zephyr of the money in controversy, or she had embezzled

it after the latter had intrusted it to her to be deposited in bank.

The dispute between Mrs. Casey and the executor necessarily involved the title to title to that money. And the question for determination is, whether or not the Probate Court had the right, upon such a summary proceeding as that taken here, to order Mrs. Casey to be committed for contempt in failing to obey its order, which involved the transfer of the property which she claimed and asserted title to, into the custody of a bank of the court's choosing.

If the evidence had shown that Mrs. Casey claimed no title to the money in dispute, but admitted it to be the decedent's property at her death, the question presented would be different. But here the claim is made, and supported by some evidence at least, although there is a sharp and decided conflict about it, that the money which the executor claims as assets of the decedent's estate was given to Mrs. Casey, and was in her possession as her property before the decedent's death. It necessarily follows, then, that in order to convict Mrs. Casey for contempt in not obeying the order of the Probate Court, that tribunal must have decided that the title to this property was not in her. Can such an issue, vital to the exercise of the court's power, be legally determined in such a proceeding?

The question, it seems to us, is very clearly answered by this court as follows:

"The title upon which his adverse claim was founded may be invalid. It may have been obtained by fraudulent and corrupt practices. It is a principle which underlies all institutions and forms of government, that no man can be deprived of his property, except in proceedings according to law, unless it be confiscated for the necessities or good of the public. If his title is claimed to be invalid or fraudulent and void, he is entitled to be heard according to the forms of law. Pro