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John Judge, Defendant's Proofs, vol. 1, p. 377.
William T. Delany, Defendant's Proofs, vol. 2, p. 10.
William G. Peterson, Defendant's Proofs, vol. 2, p. 51.
Samuel Hemple, Defendant's Proofs, vol. 2, p. 69.
George W. Smith, Defendant's Proofs, vol. 2, p. 85.
Alice Unger, Defendant's Proofs, vol. 2, p. 109.
Emma Ryder, Defendant's Proofs, vol. 2, p. 130.

Samuel I. Ryan, Defendant's Proofs, vol. 2, pp. 146, 149, 154.
Catharine Speight, Defendant's Proofs, vol. 2, p. 262.

This evidence was introduced by the defendant for the purpose of showing a divided repute as to this marriage, and was objected to by the complainants upon the three following grounds:

(1) The testimony of persons who had no knowledge of this cohabitation, to the effect that they had never heard of it, could not by any possibility tend to show whether it was meretricious or matrimonial, and consequently of the character held inadmissible in Badger vs. Badger, 88 N. Y. 554.

(2) That declarations made by Blasius after this cohabitation had ceased were incompetent to show what its true character was. In other words, if it was matrimonial, he could not, after it had ceased, make it meretricious by saying that it was such.

(3) That after a cohabitation had ceased, and issue from it is living, neither party to it will be allowed to bastardize that issue by saying that it was meretricious and not matrimonial, as it appeared to be.

Second. Two deeds claimed to have been executed by Blasius seven years after his separation from his wife, and at a time when each was ignorant of the other's whereabouts, to which deeds Josephene was not a party, which were objected to by the complainants upon the same grounds as last above stated (defendant's proof, vol. 4, pp. 187 and 183, and complainant's proofs, vol. 3, pp. 1253 to 1256, 1387, 1393, and vol. 4, pp. 1718 to 1719, 1725, 1723, 1742, 1743).

Third. The judgment roll in an action brought by Josephene's mother against Blasius after their separation, in which she claimed to recover damages against him for the alleged seduction of her daughter, which was also objected to by the complainants upon the ground that as Josephene was not a party to the suit and did not know of it, said suit did not in any way tend to show what was the character of this cohabitation because the parents of neither party to a marriage can divorce them by bringing such a suit (defendant's proof, vol. 2, p. 303).

Fourth. Also that one year and six months after the mother of your said petitioner had testified with regard to her marriage with Blasius M. Chesebrough in Baltimore, the defendant Chesebrough suborned her to commit perjury and testified that she was not married to Blasius, but lived with him as his wife during this period of time under a promise that he would marry her immediately after his mother's death (pp. 296, 293 and 285; Defendant's Proofs, vol. 2, and Complainant's Proofs, pp. 621 to 627, 676, 677, vol. 2), which testimony these complainants claim, even if true, still showed a marriage valid in law.

The foregoing mentioned evidence constituted all the proofs introduced on behalf of the defendant, Chesebrough, to show, as he claimed, that this cohabitation which had existed for four and a half years between Blasius and Josephene, in the course of which two children were born to them, was not a matrimonial one, as it seemed to be and as they had both declared it to be, but one which had been entered into under a promise that it should be followed by a marriage after the death of Blasius' mother, and therefore not valid in law.

XII. That by reason of the fact that said defendant, Charles A. Chesebrough was able to suborn the mother of said petitioner to commit perjury as aforesaid, 'and testify that she was not married to said Blasius M. Chesebrough, as she had first testified to, but that 'she had lived with him as his wife under a promise to marry her de futuro, said Circuit Court of Appeals, in the written opinion of Judge Wallace, held that her testimony in regard to her marriage having taken place in Baltimore should be disregarded; and also, that her living with him under a promise to marry her de futuro did not establish a legal marriage (p. 14, vol. 10).

Judge Wheeler, in his opinion, held that as she had lived with Blasius as his wife, whether it was under a contract of marriage made per verba de praesenti or per verba de futuro, followed by such cohabitation, still it was in law a valid marriage.

1 Blackstone's Commentaries, 465.

1 Kent's Commentaries, 87.

2 Greenleaf Ev., § 460.

And he further held that the fact that she had been suborned by the defendant to commit perjury did not tend to destroy the effect of her first testimony in regard to the contracting of a marriage, in view of the fact that the taking place of such a marriage was so strongly corroborated by their open, public and continuous cohabitation as husband and wife in the presence of their relatives, friends and acquaintances for a period of four and a half years thereafter, and by the reputed declarations of both herself and of Blasius, during it, that they were husband and wife (pp. 6 and 9, vol. 10).

XIII. That it is not shown by the evidence in this case that there was any cohabitation whatever between the parents of your petitioner prior to said 18th day of August, 1854, except the testimony of said petitioner's mother, who says that it existed only for a very short time, and that, too, upon a promise that it should be consummated by a marriage ceremony which she says took place at Baltimore, Maryland, immediately preceding their beginning to live together at the Everett House on said date (Complainant's Proofs, vol. 3, p. 1387).

XIV. That the uncontradicted evidence shows that after the separation of the parents of said petitioner in the fall or winter of 1858-9 the parents of said petitioner never thereafter intermarried with any other person, and did not know of each other's whereabouts or doings until shortly after the death of said Blasius M. Chesebrough, when the mother of said petitioner, Leonora A. Arnold, came from Nashville, Tenn., where she was then living,

and endeavored to obtain an enforcement of her rights, as his widow, for her dower in and to a small piece of property which he owned in his own right (Defendant's Proofs, vol. 2, pp. 181, 283, 284-303, and Complainant's Proofs, vol. 3, p. 1,254, and vol. 4, pp. 1718, 1719-1725, 1723-1742).

Thereafter she commenced a suit to enforce such dower rights, in the Circuit Court of the United States for the Southern District of New York, which was dismissed by default, without her knowledge, and without the calling of any witnesses, upon the call of the calendar of that Court (Defendant's Proofs, vol. 2, pp. 300 to 302, and Complainant's Proofs, vol. 4, pp. 1689 to 1697).

XV. The questions of law with regard to the proving of a marriage involved in this case are substantially as follows:

1. Whether or not the proof of such a marriage, by the direct testimony of one of the parties to it, when corroborated by the acts and declarations of herself and the other party to it during the time of the cohabitation immediately following it, and by the undisputed evidence of a large number of witnesses that they openly, publicly and continuously cohabited together as husband and wife for a period of four and a half years, and bore issue during that time, can be destroyed by the testimony of such party after the death of the other, to the effect that such marriage did not take place, and that such cohabitation, although continuous, and openly and publicly and apparently matrimonial, was really had under a secret agreement that a marriage should not take place, until the happening of some future event.

2. Whether or not a cohabitation under a promise that a ceremonial marriage should be performed after the happening of some future event, where an open, public and continuous cohabitation has immediately followed such promise and is had after the happening of such future event, upon the faith and strength thereof, and issue born is the result of such cohabitation, does not establish a marriage valid at common law in at least one of the different States in which the parties cohabited as husband and wife (as held by Judge Wheeler, following Blackstone, Kent, Greenleaf and other authorities).

3. Assuming that the intercourse between the parties to the marriage was secretly illicit for a short period of time, whether or not undisputed evidence showing that immediately after this commencement they openly, publicly and continuously cohabited together as husband and wife for a period of four years and a half thereafter, during which time two children were born of it, does not establish a marriage.

4. Whether or not, after the cohabitation between the parties has ceased, and issue has been born, and neither of them ever thereafter intermarries with any other person, the declarations of either party to the effect that they were not married, is competent to disprove a presumption of marriage arising from such cohabitation.

5. Whether or not a judgment roll in a suit for the seduction of the woman by the man, brought against the man by the mother of the woman, after such cohabitation has ceased, is competent evidence to disprove such a marriage or the presumption thereof arising from such cohabitation.

XVI. And your petitioners further aver that the present case is one in which it is proper for this Court to issue a writ of certiorari, for the following reasons:

1. The Judges of the Circuit Court of Appeals are divided in their opinions (hereto attached) upon the questions of law involved herein as to the construction and application of the rules of evidence in regard to establishing not only a ceremonial marriage, but also one at common law; that is, as to whether or not a promise to marry de futuro immediately followed by an apparently matrimonial cohabitation during which issue was born, is not valid as a marriage at common law, which is the same question that this Court was equally divided on in Jewell vs. Jewell, 1 Howard 219.

2. Because the legitimacy of children is involved in the application and construction of these principles of law in regard to the proving and establishing of a marriage.

3. Because the pecuniary rights of the parties hereto involved are large, being upward of several millions of dollars.

4. Because this decision of a majority of the Judges of the Circuit Court of Appeals, as it now stands, is opposed to the decisions of this Court, and of the highest Courts of the State of New York, upon the law of marriage.

Wherefore your petitioners pray that this Honorable Court will be pleased to grant a writ of certiorari in this case to the Circuit Court .of Appeals for the Second Circuit to bring up this case to this Honorable Court for such proceedings therein as to this Honorable Court may seem just.

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Leonora A. Arnold and Thomas E. Arnold, her husband, being duly sworn say, and each for herself and himself say: That deponent has read the foregoing petition, that the same is true to petitioner's knowledge, information and belief; and that deponent's knowledge is derived from the record in this case and from what has taken place in his presence and hearing in the Court in which this action has been heard.

LEONORA A. ARNOLD.
THOS. E. ARNOLD.

Sworn to before me this 26th day of

February, 1894.

[SEAL.]

Jos. F. ARNOLD,

Notary Public,
N. Y. City and Co.

We hereby certify that we have examined the foregoing petition, and in our opinion the petition is well founded, and that the case is one in which the prayer of the petitioners should be granted by this Court.

JOSEPH H. CHOATE.

JOHN H. V. ARNOLD.
ROGER FOSTER.

CERTIORARI FORM XIV.-PETITION TO SUPREME COURT TO REVIEW DECISION OF CIRCUIT COURT OF APPEALS

IN CASE OF PROMISE TO LEAVE LEGACY.

[The author was counsel in opposition.]

IN THE SUPREME COURT OF THE UNITED STATES.

[Application denied.]

OCTOBER TERM, 1921.

[Title.]

To the Honorable the Chief Justice and Associate Justices of the Supreme Court of the United States:

Your petitioners, William Nelson Cromwell and Louis H. Cramer, as executors of the last will and testament of Frank Leslie, deceased, respectfully show to this honorable Court as follows:

I. This is a petition for a writ of certiorari to review a final determination of the Circuit Court of Appeals for the Second Circuit, made and entered in said Court on the 25th day of January, 1922.

II. The case presents the following unusual situation:

The case has been twice in the Circuit Court of Appeals on Writ of Error. On the second appeal the Court, after most carefully reconsidering a question which it had passed upon on the first appeal, came to the conclusion that its decision on the first appeal was erroneous, which conclusion it has expressed in an able and convincing opinion. The question involved is one which is determinative of the case. Had it been correctly decided upon the first appeal the directed verdict for the defendants (Petitioners here) on the first trial in the District Court would have been affirmed. Could the error be corrected now the judgment for the plaintiff (Respondent here) on the second trial would be reversed with directions to enter judgment for the defendants.

The Circuit Court of Appeals, however, despite the fact that it has been willing on the second appeal to reconsider its first decision and to confess its error, has felt itself bound by the law of the case" to follow its decision on the first appeal.

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The result is that the Court affirms a judgment for the plaintiff for upwards of $53,000, which it now holds that there was no evidence to support.

Your Petitioners represent that such an application of "the law of the case'' would tend seriously to discredit the administration of justice, and that the refusal of the learned Circuit Court of Appeals to correct its admitted error is in conflict with its own recent and prior decision as to "the law of the case" in Johnson vs. Cadillac Motor Car Co., 261 Fed.

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