1. To a petition for dower, the defendant is not obliged to answer on oath, but should plead his defense.
2. Oral evidence of cohabitation is admissable [admissible] in this State as evidence of marriage.
WILLIAMS and HAYWOOD, JJ.
It is true, some of the practices since the act of 1784 have made their defenses by way of answer; it is equally true that others have made defense by pleading; and it is fit the practice should be settled. The act of 1784 did not intend this to be an equity proceeding; it did not mean to require that the defendant should answer on oath; it alters the common law no (4) further than it has directly expressed by substituting the petition in place of the intricate proceedings by writ and declaration. The defense must be made and tried as before. It is absurd to say the Court shall try in a summary way, whether the plaintiff received satisfaction or not, or was lawfully married or not. The rules of the common law are never to be departed from but where the Legislature have expressly directed it, or where it necessarily follows from what they have directed. They have not done this in the present instance; they have not required any answer on oath, and the Court will not. So the jury were sworn on the pleas, and after much argument on both sides the Court permitted oral evidence to be given of cohabitation in proof of the marriage, notwithstanding the English authorities require a certificate of the bishop, because there is no record kept here of marriages, as in England there is; consequently, no certificate of any officer can be had, and unless parol evidence be received we shall invalidate all the marriages in the country.
NOTE. — Upon the first point see 1 Rev. Stat., ch. 121, secs. 1 and 2. As to the second question, see Felts v. Foster, post, 102; S. c., 1 N.C. 121. General reputation and cohabitation are evidence of marriage in all civil cases except actions of crim. con. Weaver v. Cryer, 12 N.C. 337.
Cited: Spencer v. Weston, 18 N.C. 214.