trate or were satisfactorily proved, by the oath of a person known to him, to be the persons described in such certificate, and that he had ascertained that they were of sufficient age to contract marriage; 2. The name and place of residence of the attesting witness or witnesses; and, 3. The time and place of such marriage; 4. The certificate must also state that, after due inquiry made, there appeared no lawful impediment to such marriage. 2 R. S., 140, § 13. cate. § 39. Such certificate may, within six months after the The certif marriage, be filed with the clerk of the city or town where the marriage was solemnized or where either of the parties reside, and is to be entered in a book to be provided by the clerk, in the alphabetical order of the name of each party, and in the order of time in which it is filed. § 40. The entry must specify: 1. The name and place of residence of each party; 2. The time and place of marriage; 3. The name and official station of the person signing the certificate; and, 4. The time when the certificate was filed. 841. If the certificate was signed by a minister or priest, there must be indorsed or annexed, before filing, a certificate of any magistrate residing in the same county with such clerk, that the minister, by whom it is signed, is per sonally known to such magistrate, and has acknowledged the execution of the certificate in his presence; or, that the execution of such certificate, by a minister or priest of some religious denomination, was proved to such magistrate, by the oath of a person known to him, and who saw the certificate executed. 2 R. S., 141, §§ 14-16. entry, &c., § 42. Such certificate, or the entry thereof made as above Certificate, directed, or a copy of such certificate or of such entry, evidence." duly certified, is presumptive evidence of the fact of such marriage. 2 R. 8., 141, § 17. Marriages of Indians. § 43. Indians contracting marriage according to the Indian custom, and cohabit as husband and wife, are lawfully married, and their children are legitimate. Laws of 1849, ch. 420, § 4. CHAPTER II. DIVORCE. NOTE. The provisions of this chapter have been modified from those of the Revised Statutes, with a view to produce conformity with the present Procedure, and to establish the rule that in one action between husband and wife, in which a judgment of nullity or a dissolution of marriage or separation is sought, the whole controversy may be passed on and settled, and for this purpose to allow a defendant to interpose a demand for affirmative relief, asking a divorce or separation against the plaintiff, instead of requiring cross actions. ARTICLE I. Nullity. II. Dissolution. III. Separation. IV. General Provisions. Cases ARTICLE I. NULLITY. SECTION 44. Cases where marriages may be annulled. 45. Marriages during life of former husband or wife, how annulled. 46. Applications for a decision of nullity. 47. Cohabitation, when a bar. 48. Children of annulled marriages. 49. Actions to annul marriage. 50. Effect of judgment of nullity. § 44. A marriage contract may be adjudged void for riages may either of the following causes existing at the time of the where mar be annulled. marriage: 1. If the party seeking to have the marriage adjudged void, was under the age of legal consent; but a marriage is not to be adjudged void on this account if it appears that after attaining the age of consent, the party for any time freely cohabited with the other as married; 2 R. S., 142, §§ 20, 21. 2. If the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force; 3. If the wife was under the age of fourteen years, and the Laws of 1841, ch. 257; same stat. 3 R. S., otn ed., 233, 4. If either party was of unsound mind; 5. If the consent of either party was obtained by force or fraud; 6. If either party was physically incapable of entering into the married state; but a marriage is not to be adjudged void on this account unless it appears to the satisfaction of the court that the incapacity continues and is probably incurable. 2 R. S., 142, § 20; the last clause is new but in accordance 45. A marriage which is void or voidable on the ground that a former husband or wife of one of the parties was living, may be adjudged void on the application of such former husband or wife, or upon the application of either of the parties during the life of the other, and within the time limited by law. 2 R. S., 142, § 22. The words "within the time limited by law" have been inserted in accordance with the construction put upon a similar provision (§ 30), in Montgomery v. Montgomery, 3 Barb. Ch., 132, where it was held that the intent of the reference, to the lifetime of the parties, was to prohibit the annulling of the marriage after the death of the partics, but not to extend the limitation to any period within the lifetime of the other. Applica tions for a decision of nullity. Cohabita tion, when a bar. § 46. Within the time limited by law for the commencement of actions, application to annul a marriage may be made: 1. If on the ground that a former husband or wife was living,- by either party during the life of the other, or by such former husband or wife; 2. If on the ground of idiocy,-by any relative of the idiot, interested to avoid the marriage, during the life of either party; 3. If on the ground of any insanity, other than idiocy,— by any relative interested to avoid the marriage, and at any time during such insanity, or after the death of the insane person in that state, and during the life of the other party; or by the insane person after the restoration of reason; 4. If on the ground of force or fraud,- by the injured party, or the parent or guardian of such party, or a relative interested to avoid the marriage, during the life of either party; 5. In either of the foregoing cases, if no application has been made by the party or a relative, application may be made at any time during the life of both parties, by a guardian of the insane or injured party appointed by the court for the purpose; 6. If on the ground of physical incapacity,-application can only be made by the injured party against the incapaci tated party, and in all cases must be made within two years from the time of contracting the marriage. 2 R. S., 142, §§ 22, 24, 27, 30, 33. § 47. After an insane person has been restored to reason the marriage cannot be annulled upon his or her applica tion upon the ground of such insanity, if it appears that the parties freely cohabited as husband and wife, after such restoration; nor can any marriage be annulled on the ground of force or fraud, if it appears that at any time before the commencement of the action, the parties freely cohabited as husband and wife. 2 R. S., 143, §§ 27, 31. Children of § 48. Where a marriage is adjudged void on the ground annulled marriages. that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead; or where a marriage is adjudged void on the ground of insanity; issue, begotten before the judgment must be specified in the judgment, and are enti tled to succeed in the same manner as legitimate children, to the estate of the parent, who, at the time of the marriage, was competent to contract. The court must award custody of the issue of a marriage annulled on the ground of force or fraud, to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. 2 R. S, 142, §§ 23, 28, 32. § 49. Applications to adjudge marriages void, shall be made in civil actions according to the Code of Civil Procedure. No marriage can be adjudged void solely on the declarations or confessions of the parties; but the court must in all cases require other satisfactory evidence of the existence of the material facts. 2 R. S., 144, § 36. 50. A judgment of nullity of marriage, recovered during the life of the parties, is conclusive evidence of its nullity, in all courts and proceedings; but if recovered after the death of either party to the marriage, it is only conclusive as against the parties to the action, and those claiming under them, 2 R. S., 144, § 37. Actions to annul mar riage. Effect of nullity. judgment of ARTICLE II. DISSOLUTION. SECTION 51. Divorce for adultery. 52. Cases in which divorce for adultery is denied. 53. Legitimacy of issue. 54. When re-marriage is forbidden. adultery. § 51. Divorces may be decreed, and marriages may be Divorce for dissolved by any court of competent jurisdiction, wherever adultery has been committed by any husband or wife, in either of the following cases: |