{
  "id": 8652501,
  "name": "G. W. WARD, Administrator of DANIEL BAILEY v. JULIA A. BAILEY",
  "name_abbreviation": "Ward v. Bailey",
  "decision_date": "1896-02",
  "docket_number": "",
  "first_page": "55",
  "last_page": "58",
  "citations": [
    {
      "type": "official",
      "cite": "118 N.C. 55"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "ocr_confidence": 0.444,
    "pagerank": {
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    "sha256": "2fb09fe2abc467d0f8929112e887ef2869845c39229c1aa83a097265e1e97488",
    "simhash": "1:edb7e7159adaa3af",
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  "last_updated": "2023-07-14T17:26:06.557243+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "G. W. WARD, Administrator of DANIEL BAILEY v. JULIA A. BAILEY."
    ],
    "opinions": [
      {
        "text": "Avery, J.:\nThe marriage of the plaintiff\u2019s intestate with the defendant, she having a husband \u201cliving at the time,\u201d was, under the plain provision of The Code, Section 1810, not merely voidable but void, when the rites were performed and the parties undertook to contract in 1870, notwithstanding the fact that the presumption had arisen that the former husband was dead. But plaintiff\u2019s intestate being now dead, it was contended that the courts are now prohibited, under the proviso, from formally declaring the contract null. In order, however, to bring the case within the prohibition, it is not sufficient to show simply that one of the parties has died, but it must appear further that issue was born during the cohabitation. The latter requirement is not met by the proof; indeed, it is admitted that there was no issue of the bigamous marriage.\nWe are not at liberty, therefore, to enter upon the discussion of the doctrine upon which counsel for defendant rested his argument. Whatever might otherwise have been the effect of the presumption of the husband\u2019s death, the facts bring this case within the language of the law referred to, but fail to bring it within the exception. Technically, the marriage -was none the less a bigamous one because the statute shielded the defendant from prosecution. After the presumption of the husband\u2019s death had been rebutted by proof that he was in fact alive, while the law protected her from the prosecution and punishment to which she might otherwise have been liable, it could not be construed consistently with the provisions of the other statute, rendering the marriage void, to give her any of the rights incident to widowhood.\nThere was error in the ruling of the court below. The iudgment of non-suit is vacated and a new trial granted.\nNew Trial.",
        "type": "majority",
        "author": "Avery, J.:"
      }
    ],
    "attorneys": [
      "Mr. E. F. Aydlett, fo.t plaintiff (appellant).",
      "Mr. J. Haywood Sawyer, for defendant."
    ],
    "corrections": "",
    "head_matter": "G. W. WARD, Administrator of DANIEL BAILEY v. JULIA A. BAILEY.\nMarriage, When Void \u2014 Death of One of the Parties to Unlawful Marriage \u2014 Dower, Right of.\n1. To bring a case of unlawful marriage within the proviso to section 1810 of The Code which, prevents the courts from declaring a marriage void (except for bigamy, &c.,) it must be shown not only that one of the parties is dead but that cohabitation and the birth of issue followed the unlawful\n2. The fact that a presumption which had arisen of the death of a woman\u2019s husband shields her from prosecution for bigamy upon marrying another, does not render the last marriage any the less bigamous or void if the first husband be, in fact, alive, nor is she entitled to any of the rights of widowhood under the second and unlawful marriage.\nCivil actioN, for the recovery of personal property in possession of the defendant and alleged to belong to the plaintiff\u2019s intestate, Htried -before Green, J., and a jury, at Fall Term, 1895, of Pasquotank Superior Court. The issues submitted to the jury were, 1st, whether the plaintiff was the owner and entitled to the possession of the property described in the complaint; and, 2nd, as to the' value of the property.\nIt was admitted, 1st. That David Allen and the defendant intermanied on March 12,1859; 2d. Daniel Dailey, plaintiff\u2019s intestate, and the defendant were married April 3d, 1870. Dr. W. J. Lumsden, a witness for the plaintiff, testified that he knew David Allen and that he had seen him in the town of Elizabeth City, N. C., since the year 1874.\nCol. A. L. Jones, also a witness for the plaintiff, testified that he had seen David Allen in the town of Elizabeth City, N. 0., since the marriage of the defendant with plaintiff\u2019s intestate.\nThe defendant, on her own behalf, was then introduced and testified that she knew plaintiff\u2019s intestate long before her marriage to him on April 3, 1870, and that his former wife had died before that date, and that he had no other wife living at the time of her marriage to him.\nThat her former husband, David Allen, left her in August or September, 1860, and that she heard nothing from him directly or indirectly until after .her marriage with Dailey. That she had never seen him nor received any assistance or support from him since the day he left her.\nDefendant then introduced the plaintiff as a witness on her behalf and asked him the following question :\n\u201c Have you sufficient money in hand belonging to the estate of your intestate to pay debts \u25a0 against this estate, and the expenses of administration and the costs of this suit in the event it should be determined against you, outside of the property in controversy in this action ? \u201d\nQuestion objected to by plaintiff. -Objection overruled and plaintiff excepted.\nPlaintiff answered : \u201c Yes.\u201d\nDefendant next introduced records of superior court, showing that the property in controversy had been assigned t\u2018o her as a part of her year\u2019s provision.\nAt this juncture the court stated to counsel that he should charge the jury, if they should find from the evidence that Allen was living at the time of defendant\u2019s intermarriage with plaintiff\u2019s intestate, and that he had been continuously absent from her the space of seven years then last past, and that she did not know him to have been living within that time, they should answer the first issue, \u201c No.\u201d\n\"Whereupon plaintiff submitted to a non-suit and appealed.\nMr. E. F. Aydlett, fo.t plaintiff (appellant).\nMr. J. Haywood Sawyer, for defendant."
  },
  "file_name": "0055-01",
  "first_page_order": 91,
  "last_page_order": 94
}