me over to Windsor and having this ceremony performed. I would not have had intercourse with him if I had not supposed I was married. I was induced to stay with him, sleep with him, because I supposed I was married to him. I did not know until November. I am 23 years old. At the time the ceremony was performed I was not a married woman."

Afterwards she went over to Windsor to see if there was any record of the marriage. She testified, on redi rect examination, as follows:

"I went over to search the records in Windsor to see if we were married. The justice sent me over, and I saw I guess it was a magistrate, and he had the records searched, and he sent around to the different ministers to find out. There was no record of marriage there."

On recross-examination she testified:

"I don't know whether there was any record kept or not of that marriage. I suppose there could not have been; we could not find any. We mutually agreed to become husband and wife in the presence of this other party, and I was very ignorant of the laws of Canada. The laws of Canada require a marriage record."

On redirect examination she was asked by the prosecuting attorney:

"Do they have to get a license in Canada? "A. Yes."

This was objected to, on the ground that the witness was not shown to be competent to testify as to what the laws of Canada are. The objection was overruled.

The theory of the prosecution was that the respondent induced the prosecutrix to have sexual intercourse with him by means of fraud. The prosecutrix testified that a marriage ceremony was performed, and that the parties thereto agreed to take each other as husband and wife. The parties were competent to enter into the contract, and apparently did contract with each other to be husband and wife. Had such a contract taken place in this

State, followed by cohabitation as husband and wife, the marriage would have been valid. Hutchins v. Kimmell, 31 Mich. 126; Peet v. Peet, 52 Mich. 464. The marriage was presumptively valid in Canada. A marriage ceremony was performed, and the parties consented and agreed to the contract; and it has been held in this State that the common law as it exists among us will be presumed to prevail in a foreign country, in the absence of proof to the contrary. In re High, 2 Doug. (Mich.) 515; Crane v. Hardy, 1 Mich. 56.

The only remaining question is whether there was any proof in this case of local law or custom in Canada restrictive of this mode of contracting a valid marriage. It may be true that the prosecutrix made a search for a record of the marriage, and was unable to find such record. The testimony falls far short of showing that such a record does not exist. The testimony upon that question was mostly hearsay. All that the prosecutrix claimed to know of it was what some one told her, whom she supposed to be a magistrate there. But it is said that her testimony showed that the laws of Canada required a marriage license. It does not appear that no license was in fact obtained by the respondent, and, moreover, the prosecutrix was not shown to have any knowledge or means of knowledge as to what the laws of Canada on the subject are. There was nothing in the case that would warrant the court or jury in saying that the marriage in Canada was invalid. While the conduct of the respondent towards the prosecutrix was most wanton and cruel, yet his statement to her that there never was a valid marriage would not of itself prove the fact that no marriage contract was entered into, and would not rebut the presumption of a valid marriage. The presumption of a valid marriage existing, the respondent could not be held guilty of seducing and debauching the prosecutrix.

The judgment of conviction must be reversed, and a new trial ordered.

MCGRATH, C. J., GRANT and MONTGOMERY, JJ., con curred with LONG, J. HOOKER, J., concurred in the result.

106 254 122 246

HOGAN v. WAYNE CIRCUIT JUDGE,

INTERPLEADER-INJUNCTION-COURTS OF CO-ORDINATE JURISDICTION. Where an insurance company has been garnished in the circuit court of one county for moneys admitted to be due under a policy, and has subsequently been sued by an assignee of the insured in the circuit court of another county, an injunction restraining the parties from prosecuting their several suits may properly issue upon a bill of interpleader filed by the company upon the equity side of the court in which suit was first brought, and which thereby obtained jurisdiction of the question in controversy in both cases, namely, the ownership of the fund.

Mandamus by James Hogan to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order granting an injunction. Submitted April 2, 1895. Denied July 13, 1895.

Robert Parker and J. B. Houck, for relator.

James Swan, for respondent.

MCGRATH, C. J. On June 25, 1894, a loss occurred under a fire policy issued by the New Hampshire Fire Insurance Company to one James H. Coonan, a resident of the city of Detroit, upon property situate in said city. Proofs of loss were furnished July 3, 1894. On July 28,

1894, the B. Stroh Brewing Company brought, suit against Coonan in the Wayne circuit court, and garnished the insurance company. On July 31, 1894, Elliott & Co. brought suit in the Wayne circuit court against Coonan, and garnished the insurance company. On the 6th day of August, 1894, Robert Parker, as attorney for James Hogan, verbally notified the agent of the insurance company that Coonan had, on July 24, 1894, assigned his claim under said policy to James Hogan. On August 21, 1894, the insurance company disclosed, denying any indebtedness to Coonan. Afterwards, on October 11, 1894, the garnishee defendant filed amended disclosures, setting up the facts, admitting liability under the policy, but setting up the aforesaid notice of assignment. Pending these proceedings, on September 20, 1894, relator, as assignee of the claim under said policy, commenced suit against the insurance company in the circuit court for the county of Ionia. Afterwards, on February 27, 1895, the insurance company filed its bill in the circuit court for the county of Wayne, in chancery, making the plaintiffs in the garnishment proceedings aforesaid and the said James Hogan parties, praying that the defendants may be decreed to interplead, and that they may be enjoined from the prosecution of their several suits against the company. An injunction was granted. Relator asks for a mandamus to compel the vacation of the order granting the injunction.

The injunction runs against the person of James Hogan, rather than the circuit court for the county of Ionia, and it may be carried into effect by proceedings in contempt instituted in the circuit court for the county of Wayne, in chancery. The insurance company seeks to restrain, not only relator from proceeding in the circuit court for the county of Ionia, but the plaintiffs in garnishment from proceeding in the circuit court for the county of Wayne. If the company had filed its bill in the Ionia circuit, the plaintiffs in garnishment might make the same contention that is here made on behalf of rela

tor. Any plea that might be interposed in the suit at law in the Ionia circuit would involve the determination of the same question that is involved in the proceedings in garnishment in the Wayne circuit, and that court first obtained jurisdiction of that question. The bill sets up that relator was pressing the suit in Ionia county to trial, and the petition here insists upon the right to an immediate trial of such suit.

In Maclean v. Wayne Circuit Judge, 52 Mich. 257, a bill was filed in the Wayne circuit to set aside a judgment obtained in the superior court of the city of Detroit. Dodge v. Northrop, 85 Mich. 243, was a similar proceeding. In Barnum Wire & Iron Works v. Wayne Circuit Judge, 59 Mich. 272, a suit was pending in the superior court of Detroit when the assignment was made, and it was sought to enjoin the prosecution of that suit. In Mabley v. Judge of Superior Court, 41 Mich. 31, judgment had been obtained in the superior court, a new trial had been granted conditionally, and the cause was assigned for trial for a day certain. Three days before the day set, defendant filed a bill in the United States circuit court, and obtained an ex parte order restraining plaintiff from proceeding. The order was served on the day before the day set for the trial, and a notice of the proceeding was filed in the superior court. The judge of the superior court thereupon vacated his conditional order, and reinstated the judgment. A mandamus was prayed for to compel the judge of the superior court to vacate said order, which was refused.

Each of these cases was decided upon the merits. Here, two parties are claiming the fund, and each has planted its suit,-one in the Wayne circuit, and the other in the Ionia circuit. A bill of this character, filed after suit brought, necessarily involves a restraint upon existing suits. The company acknowledges its liability upon the policy for the amount of the loss, but insists that it cannot safely pay to either claimant until the disputed question is adjudicated in some proceeding which shall