Appeal from the Third Judicial District for Santa Cruz.

The complaint sets forth, that in September, 1845, defendant proposed to marry the plaintiff, representing himself as a single man; and that, placing confidence in this statement, she consented to become his wife, according to the laws of the land, which were then the laws of Mexico; that defendant drew up what he represented to be a marriage contract, and she, ignorant of the laws, and relying upon defendant’s statements, &c., signed the writing, 'in substance as follows: “ Marriage in the year 1845. Isaac Graham, of Santa Cruz, and Catharine Bennet, of San Francisco, were married at Lyant, by banns, this 26th day of September, in the year 1845, by one who was requested to read the ceremony, Henry Ford. This marriage was solemnized between us, Isaac Graham, Catharine Bennet. In presence of William Wern, Henry Ford.” After which the plaintiff lived and cohabited with defendant, as his wife, up to March, 1850, when she learned that defendant had a lawful wife living in Tennessee, at the time he professed to marry plaintiff; and at the same time she learned that the supposed contract was fraudulent and void, and that two children which she had borne to defendant, were illegitimate; and on discovering the fraud, &c., left defendant, and went to Oregon, with her children. That in July, 1851, defendant came to Oregon, and in the night, with force, &c., defendant seized plaintiff and brutally assaulted her, &c, and tore away and abducted her two infant children, and carried them to California, compelling plaintiff to travel 800 miles in search of them, at great expense, &c., and to her damage §20,000.

The defendant’s answer denied all the allegations of the complaint—charged the plaintiff with profligacy at the time, and before the alleged marriage, and specially denied the assault.

The case was submitted to a jury, who found the defendant not guilty of the assault, but guilty of the abduction of the children, and gave §2500 damages.

The proof on the part of the plaintiff was, that the parties had lived together as man and wife, for several years prior to 1850, and during that time had two children; that in that year a son of defendant came from Texas to California, and on his arrival defendant admitted he had a wife living in Texas, and that this son was a child of that marriage. And also, that defendant had pursued plaintiff to Oregon, and with violence had taken the children from her, and brought them to California.

Defendant proved that he had been married in 1823, in one of the Southern States, and had left that part of the country in 1827 or 8, on a trip to the Rocky Mountains. That his wife had given birth to a child some fifteen months after he had left her, and had removed to Texas; and that in 1838 or 9, she had married again, and that her second husband was dead. He also gave some oral proof that, according to the laws of Texas, seven years of absence operates as a divorce, and that two years abandonment, authorizes the courts to grant it.

There was some further testimony on both sides, but as it had no connexion with the view taken of the case by the Court, it is omitted.

The Court charged the jury, that if the defendant took the children of plaintiff against her consent, and was not married to her, and if the children were minors, they might find him guilty of abduction, and assess damages; and if there was cruelty or wantonness in the abduction, they might give exemplary damages.

After verdict, defendant moved for a new trial, which was refused, and this appeal was taken.