Definition of marriage. Consent, how proved. Persons capable of marriage. Consent must be given to a present marriage. Certain marriages S 34. Marriage is a personal relation, arising out of a civil contract, to which the consent of parties capable of making it is alone necessary. By 2 R. S., 138, § 1, marriage is declared to be a civil contract to which consent is necessary; but whether anything more than consent is necessary has been mooted; some authorities deeming that either consummation or solemnization is also requisite (Jaques v. Public Administrator, 1 Bradf., 499; and see 2 Parsons on Contracts, 5th ed., 74). This provision makes consent alone sufficient, and is in accordance with the views declared in Starr v. Peck, 1 Hill, 270; Jackson v. Winne, 7 Wend., 47; Caujolle v. Ferrie, 23 N. Y., 106; Hayes v. People, 25 N. Y., 390. $35. Consent to a marriage may be manifested in any form, and may be proved like any other fact. Starr v. Peck, 1 Hill, 270; Clayton v. Wardell, 4 N. Y., 230. S36. Any unmarried male of the age of fourteen years or upwards, and any unmarried female of the age of twelve years or upwards, and not otherwise disqualified, is capable of consenting to marriage; subject, however, to the provisions of section 54 of this Code. Bennett v. Smith, 21 Barb., 439. The reference is to the provision below, allowing a divorce where a female is married under fourteen against consent of parent or guardian. $37. The consent to a marriage must be to one commencing instantly, and not to an agreement to marry afterwards. Cheney v. Arnold, 15 N. Y., 345. $ 38. Marriages between parents and children, incestuous. ancestors and descendants of every degree, and between brothers and sisters of the half as well as of the whole blood, are incestuous, and void from the beginning; whether the relationship is legitimate or illegitimate. Certain marriages 2 R. S., 139, § 3. $39. If either party to a marriage is incapable of when to be consent for want of age or understanding, or is incapable, from physical causes, of entering into the deemed void. marriage state, or if the consent of either is obtained by fraud or force, the marriage is void from the time its nullity is adjudged by a competent tribunal. forbidden. $ 40. A subsequent marriage contracted by any Polygamy person during the life of a former husband or wife of such person, with any person other than such former husband or wife,' is illegal and void from the beginning, unless: 1. The former marriage had been annulled or dissolved for some cause other than the adultery of such person; or, 2. Unless such former husband or wife had been finally sentenced to imprisonment for life; or, 3. Unless such former husband or wife was absent, and not known to such person to be living, for the space of five successive years immediately preceding such subsequent marriage; in which case the subsequent marriage is void only from the time its nullity is adjudged by a competent tribunal.2 'This exception is new. 2 R. S., 139, §§ 5, 6. The language of subdivision 3 has S41. No pardon granted after the twelfth day of April, one thousand eight hundred and twenty-two, to any person sentenced to imprisonment for life in this state, restores such person to the rights of any previous marriage, or to the guardianship of any issue of such marriage. 2 R. S., 139, § 7. Conjugal rights, &c., not restored of Indians, $42. Indians contracting marriage according to the Marriages Indian custom, and cohabiting as husband and wife, are lawfully married. Laws 1849, ch. 420, § 4. Certain parts of Code not applicable. Promise of marriage. S43. The provisions of other portions of this Code in relation to contracts and the capacity of persons to enter into them, have no application to the contract of marriage. S44. A promise of marriage is subject to the same rules as contracts in general, except that neither party is bound by a promise made in ignorance of the other's want of personal chastity,' and that either is released therefrom by unchaste conduct on the part of the other." 1 See Beachey v. Brown, El. Bl. & E., 976; Baker v. Cartwright, 10 C. B. [N. S.], 124. "Palmer v. Andrews, 7 Wend., 142. ARTICLE II. Mode of authenticating marriages. AUTHENTICATION. SECTION 45. Mode of authenticating marriages. 46. Form of marriage. 47, 48. Duties of the officer before whom a marriage is solem. nized. 49. Certificate to be given to either contracting party, if desired. 50. The certificate. 51. The entry thereof. 52. Authentication of the certificate. 53. Certificate, entry, &c., evidence. $45. For the purpose of authentication, according to the provisions of this article, a marriage must be solemnized in this state, in the manner herein prescribed, by one or more of the following persons, namely: Ministers of the gospel or priests of any denomination; mayors, recorders or aldermen of cities; judges of the county courts or justices of the peace; and, in case of Indians, also the peacemakers acting within their respective jurisdictions. 2 R. S., 139, § 8; applied to Indians by Laws of 1849, ch. 420, § 4. In 2 Kent's Com., 89, note, it is said that these provisions of the Revised Statutes are not law, because by the act of 1830, which declared that marriages contracted without this form of solemnization should be valid, marriage. S46. No particular form is required upon a mar- Form of riage, but the parties must solemnly declare, in the presence of the person solemnizing the marriage, and of at least one witness, that they take each other as husband and wife. 2 R. S., 139, § 9. $47. The person solemnizing a marriage must Duties of ascertain, to his satisfaction : 1. The identity of the parties; 2. Their real and full names, and places of residence; 3. That they are of sufficient age to be capable of contracting marriage; and, 4. The name and place of residence of the witness, or of two witnesses, if more than one is present. 2 R. S., 140, 10. the officer before whom a marriage is Bolemnized. $48. The person solemnizing a marriage must enter Ia. the facts ascertained by him pursuant to the last section, and the date of the solemnization, in a book to be kept by him for that purpose. 2 R. S., 140, § 11. to be given S49. The person solemnizing a marriage must Certificate furnish to either party, on request, a certificate there- to either of, signed by him, specifying: 1. The names and places of residence of the parties married: 2. That they were known to him, or were satisfactorily proved, by the oath of a person known to him, to be the persons described in such certificate: 3. That he had ascertained that they were of sufficient age to contract marriage; party, if desired The certifi cate. The entry thereof. Authentica tion of the certificate. Certificate, entry, &c. evidence. 4. The name and place of residence of the attesting witness or of two witnesses; 5. The time and place of such marriage; and, 6. That, after due inquiry made, there appeared to be no lawful impediment to such marriage. 2 R. S., 140, § 13. S50. The certificate mentioned in the last section may, within six months after the marriage, be filed with the clerk of the city or town where the marriage was solemnized, or where either of the parties reside, and when thus filed, must 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. S51. The entry required by the last section 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 sign ing the certificate; and, 4. The time when the certificate was filed. $ 52. If a certificate of marriage is signed by a minister or priest, there must be indorsed or annexed, before filing, a certificate of a magistrate residing in the same county with the clerk, that the person by whom it is signed is personally known to such magistrate, and has acknowledged the execution of the certificate in his presence; or, that the execution of the certificate, by a minister or priest of some religious denomination, has been proved to the magistrate, by the oath of a person known to him, and who saw the certificate executed. 2 R. S., 141, SS 14-16. $53. A certificate of marriage, or the entry thereof, made as above directed, or a copy of the certificate or entry, duly certified, is presumptive evidence of the fact of the marriage. 2 R. S., 141, § 17. |