the law of nature. But judging from the laws of other states and countries, it would seem that there are other cases which ought to be included."

[S 4. Same as enacted.] Original note. "Some of these marriages are absolutely void, by the existing law. (4 Johns. Ch. Rep. 344; 1 Bl. Com. ch. 15.) But it is believed that the interests of society, and of the parties concerned, will be best promoted by placing them on the ground stated in this section. See post. Article 2."

[S 5. Same as enacted.] Original note. "1 Johns. Ch. Rep. 389.” [S 6, 7. Same as enacted.] Original note to § 6. "A marriage in this case is now absolutely void (see note to last section;) but it is conceived that this rule should, in this case, be mitigated."

[S 8 as reported; not enacted.] "§ 8. Marriages hereafter to be contracted within this state, shall not be established, or held to be proved, unless there be sufficient evidence,

"1. Of the actual solemnization, in the manner prescribed in this article, of the ceremony of marriage between the parties; or,

"2. Of the known cohabitation of the parties as man and wife, avowing themselves as such."

[S 24. Same as § 19 R. S. which was also amended by act of 1830, chap. 320, § 29.] Original note to § as reported. "A similar exception is contained in the English marriage act, 26 Geo. II, ch. 33, and in the laws of Virginia, and several other states." Original note to amendment of 1830, post.

"ARTICLE II.—Of divorces on the ground of the nullity of the marriage contract.”—[ Original note. "The whole of this Article is new."]

[$ 25. Same as § 20 R. S. with the addition of the following subdivision: "6. That the marriage was irregularly solemnized, and has not been consummated."] Original note. "See ante § 4; and 1 Hopk. p. 495."

[S 29 to 42 & seq. same as § 24 to 37 R. S. § 34 R. S. repealed by amendatory act of 1830, chap. 320, § 30.]

Original note to $ 30 of act of 1830. "The amendments to the marriage law, proposed in the preceding sections, seem necessary to remove popular objections to its provisions, as well as to carry into effect the intention of the legislature by which it was passed. By referring to the Revisers' report, it will be seen that the statute as proposed by them, required all marriages to be solemnized in the manner therein prescribed, with a view to prevent abuses; to furnish the means of proving marriages, and to authenticate and preserve such proof. The joint committee to which the subject was referred, and the legislature concurred in the utility of providing means for authenticating the proof; and in reference to cases where the parties desired their marriages registered and authenticated, they concurred in the expediency of prescribing the solemnities to be observed; but they did not concur in the expediency of providing that all marriages should be solemnized in the manner prescribed. Several sections were therefore stricken out, and others were amended, to conform Iwith this intention. For example, § 8 was reported as follows: 'marriages shall be solemnized only by the following persons,' &c.

"Intending to retain the section as a guide to those who wished

their marriages to be solemnized, in such a manner that they might be recorded and regularly authenticated, the following clause was prefixed: For the purpose of being registered and authenticated according to the provisions of this Title, marriages shall be solemnized,' &c., and with this alteration the section was adopted.

"To those who were acquainted with the course of proceeding, the object of this amendment was perfectly understood; but to those who form their opinion from the language, it must be admitted that it is not so precise as to prevent doubts, whether the prescribed solemnities are not obligatory in all cases. This difficulty is increased by the retaining of § 34, which authorizes a bill to avoid a marriage irregularly solemnized and not consummated, which, in consistency with the former alterations, ought to have been stricken out. The amendments now proposed, will carry into effect the intention of the legislature. As reported by the Revisers, the Title authorized the minister as well as the magistrate by whom the marriage was solemnized, to administer an oath when necessary, to identify the parties; and it did not require him to ascertain the trade profession, or occupation of the parties. The alterations made in these particulars, in the course of enactment, have given rise to very general complaint. There seem also to be objections to that part of the law which requires the ages of the parties to be ascertained. The amendments now proposed, will, it is presumed, remove these causes of dissatisfaction."

"ARTICLE III.-Of divorces dissolving the marriage contract."

[S 43. Same as § 38 R. S.] Original note. "Act concerning divorces, and for other purposes, 2 R. L. 197. The third subdivision is new." [S 44, 45, 46, 47. Same as § 39, 40, 41, 42 R. S. except that in § 39 R. S. the words "in all cases," were substituted by the legislature for the word "but."]

Original note to § 47. "The circumstances mentioned in this section are, in most countries, a bar to a divorce, and some of them have been adopted as such in this state. See the opinion of Chancellor Kent, 1 Johns. Ch. Rep. 488. It seems proper that these exceptions should be incorporated in the statute.

[$ 49. Same as § 44 R. S.] necessary."

Original note. "New, but obviously

"ARTICLE IV. Of separations or limited divorces."

[§ 54. Same as § 50 R. S.] Original note. “Subdivision 3, necessary to supply an omission."

[$ 55 to 60. Same as enacted § 51 to 56 R. S.] Original note to $60. “ New, but conformable to the practice of the court of chancery; 4 Johns. Ch. Rep. 187."

"ARTICLE V.-General provisions, applicable to the two last Articles."

[$ 61, 62. Same as § 57, 58 R. S.] Original note. "The words in § 62, 'may in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit, during its pendency,' new, but conformable to the course of the court. See 1 Johns. Ch. Rep. 110; do. 364; 3 do. 519."

[S 63, 64. Same as § 59, 60 R. S.]

Original note subjoined to the Title. "Section 8 of the act, 2 R. L. 197, has been omitted, as unnecessary.

"S12, also omitted, as repugnant in principle to the established practice of the court, recognized in § 60.

66

By the 12th section of the act of the 12th April, 1824, entitled 'An act concerning the courts of common pleas in the counties of Essex,' &c. (Laws of 1824, p. 249,) the same rights are extended to husbands, as are given to wives by the 11th and 12th sections of the act of 1813, (the sections authorizing separations for desertion and ill treatment ;) but it has not been noticed in this Title. It is supposed that the legislature could scarcely have understood the effect of that provision."

"TITLE III.-Of guardians and wards."

66

[§ 1, 2, 3, 4, 5. Same as enacted.] Original note. “§ 5 partly new." [S 6. Same as enacted.] Original note. "30 § 1 R. L., 454, extended."

[S7, 8. Same as enacted. §7 repealed by act of 1830, chap. 320, § 31.] Original note. "New. It is now often a litigated question of great importance to the parties, as to who is entitled to guardianship. It has been thought useful to declare the priority, as well for information as to prevent litigation. The rule is derived from the practice of the court of chancery; vide 1st Hopkins, 226.”

Original note to repealing § of 1830. "This section prescribes the order of preference, in allowing guardians for minors under 14. It is suggested by experienced surrogates, that difficulties may arise in pursuing the order prescribed in this section, and as the preceding section gives the surrogate the same power as is possessed by the chancellor, it is deemed best to repeal the section in question."

[S 9, 10. Same as enacted.] Original note to § 9, "New;" to § 10. "First clause conformable to existing law. There is much doubt at present as to the extent of the responsibility of the guardian ad interim, which it is the object of the last clause of this section to remove." [S 11. Same as enacted.] Original note. "See note to § 13." S 13. Same as enacted.] Original note. "The observations made respecting the propriety and necessity of some mode of speedily and cheaply settling an administrator's accounts, apply to these provisions. In truth, they do but substitute the surrogate for a master in chancery, in the discharge of duties peculiarly appertaining to his office."

[$ 14, 15, 16. Same as enacted.] Original note. "The three last sections are new. By the existing law the chancellor has the powers here conferred on surrogates, which are exercised upon the report of a master, to whom a reference is usually directed. As an appeal from the surrogate is given to the chancellor, it is not perceived why that officer is not equally competent as a master, to institute inquiries in the first instance; much delay and expense, it is believed, will be saved by the remedy here proposed."

[ 17, 18. Same as enacted.] Original note to § 18. "Residue of 30th section of act concerning probates, &c. 1 R. L., 454, somewhat varied."

[S 20. Same as enacted.] Original note. "1st § of act for preventing waste, 1 R. L., 62. The words or with such other moneys belonging to his ward, as shall be in his hands,' and inevitable decay and injury only excepted,' new."

66

[S 21, 22. Same as enacted.] Original note. "§ 22 new in form, but conformable to existing laws."

"TITLE IV." Of masters, apprentices and servants."

"ARTICLE I.- Of apprentices and servants bound by indentures."

[S 8, 9, 10. Same as enacted.] Original note. "In § 10, and if a male, will cause him to be instructed in the general rules of arithmetic,' new."

[S 11, 12. Same as enacted.] Original note to § 12. "8th section of act of 1813; 1 R. L., 137, varied as to the term of service. Quere. Ought not the master and assignee to be restrained from taking the person so bound out of the state?"

[S 13, 14. Same as enacted.] Original note. "Residue of same § last clause of § 14 new."

PART III

Extract from preliminary report to this Part. "The general plan of the revision heretofore adopted, has been pursued in the Third Part. The Analysis will exhibit the order and arrangement of the various and complicated subjects embraced in it. It will be perceived that the excellent plan of Mr. Tidd in his treatise on practice, has been generally followed, with such deviations, as the subjects and our peculiar circumstances, required. A higher authority and a safer guide,, could not be found in the whole range of English and American writers. And when it is considered, that we have the contributions of our own countrymen on the same subjects, and forty volumes of reports of decisions in our own state courts, it will be admitted, that more copious and valuable materials, and more sound and enlightened instruction, could not be desired. These reports enable the legislature to know, accurately, what defects have been discovered, and what remedies are needed.

"The courts have long been struggling to mould the forms of proceeding, in a government very dissimilar, in many important respects, to our own, so as to adapt them to our peculiar institutions and necessities. In many cases they have succeeded; in others they have not possessed the necessary power. It remains for the legislative authority, to second and sustain their efforts.

"To a considerable extent, this has been attempted in the Third Part of the revision; and exertions have been made to prevent multiplicity of suits; to avoid fictitious, useless and protracted forms, and to save unnecessary expense."

"CHAPTER I."

"OF THE COURTS OF GENERAL OR LIMITED JURISDICTION."

"TITLE I-Of the court for the trial of impeachments and the correction of errors."

"ARTICLE I.—Of the constitution of the court and its officers."

[S 1. Same as enacted.]

$2 as reported, included, with additions, in § 2 R. S. "§ 2. The major part of the members, then in office, and competent to vote on the question pending, shall be a sufficient number to constitute the court.”

Original note. "Ib. The words in italic are inserted to remove some apparent ambiguities in the present act. Members who have resigned, or are interested in the cause, ought not to be counted in ascertaining a quorum. Nor should the judges be estimated in the number necessary to decide writs of error. It has been supposed that a legislative declaration, establishing a fixed rule, would be preferable to leaving it open and fluctuating with each cause."

"ARTICLE II.-Of impeachments and the mode of conducting them.”

[S 14 to 25, being all the sections of this article, enacted as reported, § 12 to 23 R. S.] Original note to § 25. [§ 23 R. S.] "The words 'or acquitted,' are in the statute, but not in the constitution; and have been omitted, as repugnant to the spirit of the constitution."

"ARTICLE III.-Of its powers as a court for the correction of errors." [S 26, 27, 28. Same as enacted § 24, 25, 26 R. S.]

$28. "1 R. L. 133, § 7 varied."

Original note to

[$ 29. Same as enacted § 27 R. S.] Original note. "Conformed to the language of the section concerning the supreme court."

"TITLE II.-Of the court of chancery."

"ARTICLE I.-Of the constitution of the court, and of its officers and their duties." [S 1. Same as enacted.] Original note. "New and declaratory." "ARTICLE II. Of the general powers, duties and jurisdiction of the court."

[S 32. Same as enacted § 36 R. S.]

Original note. "The existence of the court of chancery is recognized in the former constitution of this state, and also in the amended constitution; but in neither of those instruments are the powers of the court defined. A brief and comprehensive definition of those powers is attempted in the above section, which will be found to be supported by the acts and ordinances of the colonial government instituting the court, and the various statutes relating to it, passed since the revolution. The note of the Revisers, subjoined to the act 'concerning the court of chancery,' (1 R. L. 494,) contains several valuable references applicable to this subject. The act of the 6th of November, 1683, 'to settle courts of justice,' referred to therein, may be found in the appendix to the 2d volume of the Revision of 1813, p. 8. The ordinance of the 28th August, 1701, (cited in the note as dated September 2d, 1701,) 'erecting and establishing a court of chancery,' may be found in the Secretary's office, in the 10th volume of the manuscript council