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Johnson v. Browning,

In an action on the case for a malicious prosecution,, where there was not any person present at the time 6 Mod. 216, when the supposed felony was committed, except defendant's wife; Holt, C. J. allowed the evidence of the wife, given at the trial of the indictment, as good evidence, to prove a felony having been committed. Case, for malicious prosecution of an indictment,

Goddard v. Smith, whereof (as was alleged) plaintiff was legally acquitted ; Salk. 21. upon the trial, it appeared, that he was acquitted no otherwise than by an entry of a nolle prosequi. Per Cur. “ This evidence does not support the declaration, for the nolle prosequi is a discharge as to the indictment, but it is not an acquittal of the crime.”

TITLE CV.

MARRIAGE.

MARRIAGE is a legal and obligatory compact between a man and a woman, by which they reciprocally assume the relations of husband and wife.

1. Of the legal capacity of persons to contract marriage.

2. Of the publication of intentions of marriage.
3. Penalty for destroying publishments.

4. Proceedings when the bans of matrimony are forbidden.

5. Of the persons authorized to join parties in marriage ; and herein of the certificate of publishment.

6. Penalty for joining parties in marriage contrary to the statute.

7. Of the record and return of marriages.

1 Bl. Com. 433.

I. Of the legal capacity of persons to contract marriage.

The law regards marriage as it does all other contracts; allowing it to be valid in all cases, where the parties, at the time of making it, were, in the first place, willing to contract; secondly, able to contract; and lastly, actually did contract, in the proper forms and solemnities required by law.

In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities and incapacities.

1. The first of these legal disabilities is a prior marriage. By statute, all marriages, where either of the parties shall have a former wife or husband living at the

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Want of age.

time of such marriage, shall be absolutely void. And no dower shall be assigned any widow in consequence of such marriage ; and the issue thereof shall be adjudged illegitimate, and be subject to all the legal disabilities of such issue.

2. The next legal disability is want of age.

The age of consent is fourteen for boys and twelve for 1 DI. Com. 436. girls. If they marry under those ages, the marriage is waste imperfect; but, if at the age of consent they agree to continue together, they need not be married again. 3. Another incapacity arises from want of consent of

Stat. 1786, C. 3, s. 3. parents and guardians. By statute, where a male, under

Consent of parents, twenty-one years, or a female under eighteen years of ete required.com age, is to be married, the consent of the parent, guardian or other person, whose immediate care and government such party is under, if within the commonwealth, shall be first had to such marriage ; but the statute does not declare such marriage void ; it merely makes the person who joins them in marriage, subject to certain penalties. . 4. A fourth incapacity is want of reason; without a 1 pl. com. +39. competent share of which, as no other, so neither can wants of rose the matrimonial contract be valid.

5. There are also certain degrees of consanguinity and affinity within which the sexes are prohibited from gumity and attiniin intermarrying. These degrees are expressly named by Stat. 1785, c. 69, s. 1, which enacts, that if any man or woman shall intermarry within such degrees, every such marriage shall be adjudged incestuous, and shall be null and void. And the issue of all such incestuous marriages shall be adjudged illegitimai?, and be subjected to all the legal disabilities of such issue.

6. A sixth disability results from a difference of colour in the sexes. By statute, no person thereby authorized to marry, shall join in marriage any white person with . any negro, indian or mulatto, on penalty of the sum of fifty pounds. And all such marriages shall be absolutely null and void.

Degernes of consante

to be regarded.

Difference of colour in the sexes.

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II. Of the publication of intentions of marriage.

By statute it is enacted, that all persons desiring to be joined in marriage, shall have such their intentions published at three public religious meetings, on different days, at three days' distance exclusively at least from each other, in the town or district, wherein they respectively dwell, or shall have their intentions of marriage posted up by the clerk of such town or district, by the space of fourteen days, in some public place, within the same town or district, fairly written. And in case the parties, or either of them, live in a town, district, or place where there shall be no clerk, then publishment shall be made in the town or place next adjoining, in manner aforesaid.

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III. Penalty for destroying publishments.

By statute, if any person shall deface or pull down any publishment posted up, in writing, as aforesaid, before the expiration of the said fourteen days, he shall forfeit and pay the sum of twenty shillings, to the use of the town; and if unable to pay the said fine, may be set in the stocks for the space of one hour.

Ibid, 6. 4.

IV. Proceedings when the bans of matrimony are for. bidden.

If at any time the bans of matrimony betwixt any persons shall be forbidden, and the reasons thereof assigned, in writing, by the person so forbidding the same, left with the town or district clerk, k'I shall forbear issuing a certificate of publication, until the matter shall have been duly inquired into, and determined before two justices of the same county, quorum unus : Provided, the person forbidding the bans shall, within seven days after filing the reasons as aforesaid, apply unto two justices as aforesaid, and procure their determination thereon ; unless the said justices shall certify unto the said clerk, that a further time is necessary for their determination on the reasons filed; in which case the clerk shall forbear issuing a certificate, until the time, then certified to be necessary, shall expire, unless the justices shall sooner determine; according to whose determination, the clerk shall govern himself; and if the said justices shall determine, that the reasons assigned by the person forbidding the said bans, were not supported by the laws of the commonwealth, then the person so forbidding, shall pay all the cost that may have arisen in consequence of such objection; and the said justices shall make up judgment and issue execution accordingly.

Justices and ordained

V. Of the persons authorized to join parties in marriage ; and herein of the certificate of publishment.

Every justice of the peace, within the county where he hide resides, and every stated and ordained minister of the gospel in the town, district, parish or plantation, where ministers authorized. he resides, is authorized and empowered to solemnize marriages between persons that may lawfully enter into that relation, when one or both of the persons to be married, belong to, or are residents in the county where such justice resides, or one or both of them are inhabitants of, or residents in the town, district, parish, or plantation, where such minister resides.

So when any settled and ordained minister of the gospel, is himself to be married, it shall be lawful for any other such minister within the same county, to marry settled minister? the said minister. And also, when any religious society shall be destitute of a settled and ordained minister of the gospel, in case there shall not be such a minister within the town, district, or plantation, in which such religious society is, it shall be lawsul for any such minister, within the same county, to join any person of such town, district, or plantation, in marriage: Provided, such mar. riage be solemnized in the town, district, or plantation, where one of the parties to be married shall reside.

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