62 Iowa, 463, 17 N. W. Rep. 664; Mudge v. Lanning, 68 Iowa, 641, 27 N. W. Rep. 793. See, also, cases cited in Kaiser v. Seaton, supra, and the following: Evans v. Harvester Works, 63 Iowa, 204, 18 N. W. Rep. 881; Brainard v. Simmons, 67 Iowa, 646, 25 N. W. Rep. 844; Leavitt v. Metcalf, 2 Vt. 342; Mulliken v. Winter, 2 Duv. 256; Tillotson v. Walcott, 48 N. Y. 188. Counsel for plaintiffs cite Wooster v. Page, 54 N. H. 125. It is not in harmony with our conclusions. We think that the reasoning upon which it is based is not sound. Other cases cited by the same counsel are not in conflict with our conclusions. They are to the effect that sales of exempt property, with no purpose to reinvest the avails in other like property, or to exchange the articles of exempted property, or are cases involving the exemption of pension money, and some other cases involving like questions, none of which are in conflict with our conclusion in this case. BIGAMY. I. As "westward the star of empire takes its way," and emigration flows in a continuous stream from east to west, trials for bigamy become more frequent in the States and territories west of the Mississippi, and questions of law applicable to such cases become of increasing importance to the lawyer engaged in the active practice of his profession. What is Bigamy?-It is "where any person, having a former husband or wife living, marries or lives and cohabits with another person as husband or wife." But it is generally provided that this does not apply "to any person whose husband or wife shall have voluntarily withdrawn and remained absent" for a specified number of "years together, the party marrying again not knowing the other to be living within that time, nor to any person legally divorced from the bonds of matrimony." And, in some States where a decree of divorce has been duly entered, the party found to be in fault is not entitled to remarry during the life of the former husband or wife; and, if such party does so marry, then he or she is guilty of the crime of bigamy. However, as in almost all of the States and territories, if not in all of them, this subject is regulated by statutory law, and as each statute, in all probability, differs from the others in some respects, it will not be safe for the practicing lawyer to rely upon any general definition that may be given, but it will be better, in every instance, to consult the particular statute upon which the prosecution is founded. The definition hereinbefore given is a statutory one, yet it appears to be fatally defective in this: it provides that "any person having a former husband or wife living," etc., when, in fact, it means a "present," and not a "former" husband or wife. A former husband or wife is one who had, at one time, been a husband or wife, but is not such now. Therefore the party might well have a former husband or wife living at the time of the second marriage, and yet be perfectly free to marry again. The following appear to be better definitions. "Bigamy consists in contracting marriage during the continuance of a prior marriage." "Every person who, having a wife or husband still living, willfully goes through the form of marriage with any other person, commits the offense called bigamy.' 3 Marriage, Definition of.-Marriage is defined to be the legal conditions under which man and womam may lawfully cohabit and have legitimate children. Those legal conditions which must exist or be performed before man and woman can lawfully cohabit, constitute a marriage. A marriage is valid when all these conditions exist or are performed; invalid when one or more of them is wanting." Former Marriage, Proof of, Necessary.-If the foregoing statements of the law be true, then nothing, that is required to be done by the law of the place where the marriage is solemnized, can be omitted. If anything thus requisite is omitted, the marriage is not valid, and a prosecution for bigamy, founded on such former marriage, followed by a second marriage, or by cohabitation with another as husband or wife, must necessarily fail, for the reason that it must be shown that the first marriage was valid by the law of the place where it was contracted. Thus, in 12 Wharton's Cr. Law (8th ed.), § 1682. 5 Ib., ch. 2. 6 Weinberg v. State, 25 Wis. 370; Bird v. Com., 21 Gratt. 800; Green v. State, 58 Am. Rep. 670, 21 Fla. 403; People v. Wentworth, 4 N. Y. Cr. Rep. 207; Tucker v. People, 7 N. E. Rep. 51, 117 Ill. 88; State v. Johnson, 93 Am. Dec. 241, 12 Minn. 476; People v. Lambert, 72 Am. Dec. 49, 5 Mich. 349; 1 Wharton's Ev. §§ 85, 86; Oneale v. Com., 17 Gratt. 582; King v. State, 40 Ga. 244; Com. v. Norcross, 9 Mass. 492; Com. v. Littlejohn, 15 Ib. 163; Law of Witnesses, 292; Kopke v. People, 43 Mich. 41; People v. Humphrey, 7 Johns. 314; State v. Roswell, 6 Conn. 446; People v. McQuaid, 48 N. W. Rep. 161; State v. Cooper, 15 S. W. Rep. 327; People v. Lambert, it was said: "Cases of prosecution for polygamy are not unfrequent where the first marriage was charged to have been celebrated abroad, and the courts have always required proof not only of marriage in fact, but a valid marriage according to the foreign law."'8 If this be law, it will not be sufficient to prove that the parties had, in the State from which the defendant came, lived and cohabited together as husband and wife, and had held each other out to the world as such; nor to introduce a marriage certificate only;10 nor to prove by witnesses that they saw what purported to be a marriage ceremony performed,"1 nor even to prove that the defendant had admitted that he was married;12 for none of these would prove that the marriage was valid under the laws of the State where the ceremony was performed, or that it was such that the courts of the State would hold to be legal and binding on the parties. There would be nothing to show just what the law of the State was and that each and every requirement of that law had been strictly complied with. Yet some of those courts which hold that there must be proof of a marriage valid by the law of the place where contracted, have decided that the first marriage may be proved by the admissions of the defendant;13 or by evidence of his admissions coupled with evidence that the parties lived and cohabited together as husband and wife,14 and by evidence that the defendant and the woman lived together, held themselves out to the world as husband and wife for years, had a family of children living with them as their children, that she signed and acknowledged deeds as his wife, and that, after the second marriage, she sued for a divorce.15 While such evidence is com Buckman v. State, 55 Ala. 154; State v. Armstrong, 4 Minn. 335; Smith v. Smith, 1 Tex. 621; Rice v. Rice, 31 Tex. 174; People v. Anderson, 26 Cal. 129; 1 Roscoe's Cr. Ev. 465. 7 72 Am. Dec. 49, 5 Mich. 349. 8 Citing 2 Greenl. Ev., § 461; Roscoe's Cr. Ev. 310, 320. 9 People v. Lambert, supra. 10 Ib. 11 Reg. v. Povey, 14 Eng. Law & Eq. 549. 12 People v. Humphrey, 7 Johns, 314. 13 Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225; State v. Nadal, 29 N. W. Rep. 451, 69 Iowa, 478. 14 Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; State v. Hughes, 35 Kan. 626. 15 State v. Gonce, 79 Mo. 600. petent and may be introduced and placed before the jury to corroborate other evidence, yet I do not think it is such as warrants a jury in finding a verdict of guilty; and, if it be all the evidence in the case, the court should instruct the jury to return a verdict of not guilty, for the reason that such evidence does not prove a valid marriage, and no presumption of the legality of the first marriage will be indulged in in cases of this character. The legal presumption of the validity of the first marriage would, to a certain extent at least, overcome not only the presumption of innocence, but also the presumption of the validity of the second marriage. 17 If a man and woman be indicted for living together as husband and wife, without having been lawfully married, the presumption will be that the parties were married and this presumption must be overcome by the prosecution.16 And the law so presuming, the presumption will be in favor of the validity of the second marriage; but such presumption will not arise if it involve the defendant in guilt. It is apparent, therefore, that the prior marriage must be proved by proving, first, the laws of the country where the alleged marriage was celebrated; second, by duly certified copy of the record of marriage if any, required by such laws to be kept, or by eye-witnesses of the ceremony; and this evidence may be supplemented and corroborated by the admissions of the defendant, or by evidence showing that the parties had lived and cohabited with each other as husband and wife, or had acknowledged and held themselves out to be such. First. Laws of country where marriage celebrated. The courts of the State where the action is prosecuted will not presume, as against the presumption of the innocence of the defendant and the presumption of the validity of the second marriage, that the law of the place of marriage is the same as the law of the place of trial, and that a marriage shown to have been solemnized in another jurisdiction, but conforming to, and complying with, all of the requirements of the statutes of the State where the defendant is 16 Wilkie v. Collins, 48 Miss. 496; Green v. State, 59 Ala. 71. 17 Weinberg v. State, 25 Wis. 370; Williams v. State, 44 Ala. 24; Blanchard v. Lambert, 43 Iowa, 228, 22 Am. Rep. 245. tried, was legal and valid under the laws of the foreign jurisdiction, but such laws must be proved as any other facts.18 Thus, in People v. Lambert, the court says: "And inasmuch as the foreign law is a fact which may be proved by one side or the other, and is a fact material to the issue in determining the legality of the alleged first marriage, the rule comes in and applies, that no presumption can be made against the innocence of the party charged with the crime. It is the duty of the commonwealth to prove every fact essential to make out the guilt of the accused, and the facts proved must be inconsistent with the theory of his innocence, or with any theory except that of guilt. To prove the legality of the alleged first marriage the law of New Jersey must be shown; and the defendant cannot be called upon to give any proof on the subject."'19 cate In Tucker v. People,20 to prove the marriage in Minnesota, there was introduced in evidence a certificate under the hand and seal of the clerk of the district court of the second judicial district of the State of Minnesota, that there was in such office a certain record of marriage license and certifi(showing a marriage license and certificate of a clergyman that on the 19th day of September, 1883, at St. Paul in the State of Minnesota, he joined in marriage the defendant and Mary E. Markham). There was the accompanying certificate of the judge that the attestation of the clerk was in due form. The court said: "There was no evidence whatever of any law or usage of Minnesota upon the subject. We have a statute making the register of marriages in this State evidence of a marriage. It not only does not appear that there is any such statute in Minnesota, but it does not appear that by the law Minnesota there is any provision for the keeping of a register of marriages. It is laid down in 1 Greenl. Ev. § 484, that registers of births and marriages made pursuant to the statutes of any of the United States are competent. It is because of their being made by public authority, and under the 18 72 Am. Dec. 49. 19 Contra, State v. Nadal, 29 N. W. Rep. 451, 69 Iowa, 478; where it is held that in a trial on a charge of bigamy, a marriage sufficient in form to be valid under the laws of Iowa, celebrated in another State, will to be sufficient under the laws of that State when there is no evidence to the contrary. 20 7 N. E. Rep. 51, 117 Ill. 88. sanction of official duty, that they, and exemplified copies of them, are received in evidence. It does not here appear that the registry in question was made by any such authority or sanction; it appearing merely that there were in the clerk's office such marriage license, and certificate of marriage, copies of which were given;" and the judgment of conviction was reversed, although there was evidence of admissions by defendant that he had married Mary E. Markham.21 A record of this character proves only such things as are required to be recorded, and is not conclusive. 22 This would certainly be so, even when the law of the foreign jurisdiction has been proved, and a duly certified copy of the marriage register had been admitted in evidence, for there would be nothing to identify the defendant as the party referred to in the certificate, and, if the woman was still in the foreign country, how could she be identified? The identity of the parties must always be shown.23 And, to overcome the presumption of innocence, it would certainly be necessary to prove that the party officiating had the necessary authority to perform the ceremony of marriage;24 otherwise there would be no proof of a valid marriage; yet in the case of State v. Abbey,25 it was held that the official character of a justice of the peace, or of a minister of the gospel," is established prima facie by proof that, for several years previous, as well as at the time in question he had been and was in discharge of the duties of such positions respectively, and generally reputed to be such in the vicinity where they lived."26 of Proof of Statute, how made.-The law the place where the marriage was celebrated must be proved by printed copies under the seal of the State, or by producing copies otherwise authenticated in accordance with the law of the forum.27 It 21 See, also, Stanglein v. State, 17 Ohio St. 453. 22 14 Am. & Eng. Ency. of Law, 524 and notes, 3, 4. 23 14 Id., note 1, page 525; 1 Roscoe's Cr. Ev. 466, 48 Am. Dec. 116, 8 Greenl. 75; Com. v. Norcross, 9 Mass. 492. 24 State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 142; Weinberg v. State, 25 Wis. 377. 25 67 Am. Dec. 754, 29 Vt. 60. 26 See, also, State v. Kean, 34 Am. Dec. 162, 10 N. H. 347; State v. Robbins, 44 Am. Dec. 64, 6 Iredell's Law, 23. 27 Latteret v. Cook, 63 Am. Dec. 428, 433, 1 Iowa, 1; Emery v. Berry, 61 Am. Dec. 622, 28 N. H. 473; State v. Abbey, 66 Am. Dec. 754, 29 Vt. 60; Church v. Hub cannot be proved by parol;28 but a volume published by authority proves itself. 29 It is safer to produce the statute itself,30 but if a witness is permitted to testify he must be an expert.31 Second. If the law of the place where the marriage ceremony was performed required a certificate of marriage and that such certificate be recorded by a particular officer in a record required by law to be kept in his office, the marriage may be proved: (a) By a copy of such record certified as required by the act of congress "in such cases made and provided," or as required by the law of the place of trial; (b) By eye-witnesses of the ceremony. A. By the Record. That a marriage may be proved a copy of the record will not be disputed; but the determination of the question, "How must this copy of the record be certified?" depends to so great an extent upon the statutes of the State where the trial is had, that I shall content myself, in this respect, by a simple reference to some of the authorities already cited.32 33 B. By Eye-witnesses.-In State v. Kean, the evidence offered to prove the first marriage of the defendant was that of a person who was present at the time of the marriage, and who testified that it was solemnized at Cornish, in the State of Maine, and that the settled minister of Cornish officiated in the services on that occasion. The witness testified that the same clergyman officiated in the marriage services of the witness, and that he had also been present at several other marriages in Cornish, when the marriage ceremony was performed by him. There was bard, 2 Cranch, 187, where it is held that nothing but the impossibility of the obtaining a copy can excuse the non-production of such copy; Kopke v. People, 43 Mich. 43. 28 See note 25. Contra, Taylor v. Swett, 22 Am. Dec. 156, 3 La. 33. 29 People v. Calder, 30 Mich. 88. 30 People v. Lambert, 72 Am. Dec. 49, 5 Mich. 349. 31 See, note 27. In the Lambert case the following cases are cited: Vander Donckt v. Thelluson, 8 M. G. & S. 812; Reg. v. Povey, 14 Eng. Law and Eq. 549. This last case was a bigamy case in which a woman had been allowed to testify to a marriage in fact by a minister in Scotland, and to the legality of it, but the conviction was quashed by the court of criminal appeal, such evidence being held to be insufficient to prove a valid marriage. 32 See notes 18, 20, 21, 23, 24. 33 34 Am. Dec. 162, 10 N. H. 347, 20 Iowa, 98, 35 N. H. 22. further evidence showing a cohabitation of some years subsequent to this marriage. The court held that a "marriage may be proved by any person who was present at the ceremony, provided that such circumstances are also proved from which the jury may presume that it was a valid marriage according to the laws of the country in which it was celebrated," and held the evidence of marriage to be sufficient; yet there was no proof of the formalities necessary by the laws of Maine to constitute a valid marriage, no proof that a license had been issued, and none that the person purporting to be the minister had signed any certificate of marriage, or had made any return of his (presumed) official act to any officer. If the law of Maine on this subject had been given in evidence, and it had appeared that the common law respecting marriage had not been abrogated, then this evidence might have been sufficient; but even this is rendered doubtful by the decision in Reg. v. Povey.84 The following is the law as laid down by a recent and valuable work. "Any person present at the marriage may testify thereto, whether a third party or the celebrant, and, in the general, even the parties themselves.' D. R. N. BLACKBURN. 35 34 See note 29. In Brewer v. State, 59 Ind. 101, 103, it is said "no case can be found which holds that oral proof is not admissible on the question of marriage." See, also, U. S. v. De Amador, 27 Pac. Rep. 488, where it is also held that "where a marriage celebration is proven, the contract, capacity of the parties, and the validity of the marriage will be presumed." 35 14 Am. & Eng. Ency. of Law, 525. See, also, State v. Marvin, 35 N. H. 22; State v. Williams, 20 Iowa. 98. INSURANCE-CONDITIONS OF POLICY-SALE OR TRANSFER OF PROPERTY - CHANGE IN THE TITLE OR POSSESSION-LEASE WITH OPTION OF PURCHASE. SMITH V. PHOENIX INS. CO. Supreme Court of California, Sept. 21, 1891. Putting a lessee in possession of insured property under a contract that he shall buy the property on the expiration of his lease, or, at his option, at any time during its continuance, does not violate a condition of the policy that shall become void if any change takes place in the title or possession, when, on application for the insurance, the building was in process of erection, untenanted, and the company had notice of the contemplated lease and change of possession, though not of the agreement to convey contained in the lease. BEATTY, C. J.: In March, 1890, we made a decision in this case reversing the judgment of the superior court, with directions to enter judgment on the findings in favor of the appellant. 23 Pac. Rep. 383. After a rehearing of the case, and upon fuller consideration of the questions involved, we are satisfied that our former decision was erroneous, and that the judgment of the superior court should be affirmed. The action is upon a fire insurance policy. Plaintiffs had judgment in the lower court, and defendant appealed from the judgment alone, claiming that upon the facts found the judgment should have been in its favor. The policy in suit was issued in August, 1887, and the property insured consisted of a frame building designed for an hotel or boardinghouse. The defendant was advised by the papers accompanying the application for insurancewhich, by the terms of the policy, are made a part of the contract-that the building was occupied or to be occupied by a tenant (no particular tenant being named) for hotel purposes; and it is found by the court, as alleged in the complaint, "that before said insurance was effected defendant had full knowledge that said building was built by plaintiffs for the purpose of renting the the same for a boarding and lodging house, and was to be occupied by the tenant of the plaintiffs, the said building not being at that time fully completed and furnished." After the insurance was effected and the building completed, the plaintiffs, on December 24, 1887, by a written lease, demised the insured premises to one J. D. Stewart for a term of five years, at a fixed rent, payable monthly. The lease also contained stipulations binding the plaintiffs to put in certain furniture, consisting of carpets, cooking range, gas-fixtures, etc., and binding Stewart to put in other necessary furniture. It was agreed that the building and furniture should be properly insured for the benefit of the parties as their interest might appear, and that Stewart, the lessee, should pay one-half of the expense of insuring the building and the entire expense of insuring the furniture. It was further agreed as follows: "Said party of the second part [Stewart] may at any time during said term of five years purchase said hotel, lots, and premises for the sum of twenty-five thousand dollars cash, and likewise purchase said carpets, gas-fixtures, and range at cost price. It is further agreed that said party of the second part will purchase said hotel, lots, and premises on or before five years from this date for the sum of $25, 000, together with said carpets, gas-fixtures, and range at their cost price." The defendant had no notice of these stipulations for purchase and sale of the property. Under this lease and agreement Stewart entered into possession of the insured premises, and so continued until the destruction of the hotel by fire in April, 1888. The plaintiffs thereafter, upon due notice and proofs of loss, demanded payment of the policy, which was refused by the defendant. Hence this action, which is defended on the ground of an alleged violation by plaintiffs of the following conditions of the policy: "If the property be sold or transferred (in whole or in part), or upon the commencement of foreclosure proceedings against, or a sale under a deed of trust, or the existence of a judgment lien, or the issue or levy of an execution against any kind of property herein described; or if the properly be assigned under any bankrupt or insolvent law, or any change takes place in the title or possession (except in case of succession by reason of the death of the assured), whether, by legal process or judicial decree, or voluntary transfer, assignment, or conveyance; or if the title or possession shall be changed from any cause whatsoever; or if this policy shall be assigned before a loss, without the consent of the company indorsed hereon-this policy shall, in each and every instance, be void." The passages which we have italicized are those to which attention is particularly directed; the claim of appellant being that the lease and agreement of sale, and Stewart's possession thereunder, wrought a change both in the title and possession of the property insured, involving a forfeiture by plaintiffs of all rights under the policy. In their argument at the rehearing counsel for appellant took the position, for the first time, that possession by Stewart, under the lease and as a tenant merely, without regard to the contract of sale, was a violation of the provision of the policy against a change of possession. But clearly this position cannot be maintained, in view of the statement made in the application upon which the policy was issued, to the effect that the building was to be occupied by a tenant for hotel purposes; and the fact found by the court that defendant had full knowledge, before issuing the policy, of the purpose for which the building was being constructed, and that it was to be occupied by a tenant. Occupancy of the identical character contemplated by the policy was not a change of possession. The issuance of the policy was an express consent to possession by a tenant, and, since no particular tenant was named, it was a consent to occupancy by any tenant selected by the assured, subject, of course, to revocation by canceling the policy and returning the premium if an objectionable tenant was selected. The real and only question in the case is whether the contract of sale embraced in the lease, or superadded to it, wrought a change in the title to the insured premises within the meaning of the policy, or imparted to the possession of Stewart a character materially different from the possession of a tenant. Upon the question we held in our former decision, in accordance with the contention of appellant, that Stewart, by taking possession of the insured premises under the lease and agreement of December 24, 1887, not only acquired the right but became absolutely bound to complete the purchase; that henceforth the buildings were at his risk; that if they were destroyed the loss would be his alone, because he was obliged at the expiration of his term as tenant, upon tender of a deed for the land without the buildings, to pay the full contract price of |