Commentaries On the Law of Marriage And Divorce, With the Evidence, Practice, Pleading, And Forms; Also of Separations Without Divorce, And of the Evidence of Marriage in All Issues

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Tobey, "16 Pick. 177, distinction of void and voidable in mar- 182; Bishop First Book, § 51, 52), riage does not exist in this country, which it is well settled belong to the But the difficulty is, that for such a common law of our several States.
scepticism there is no foundation in ' Smith v. Smith, 5 Ohio State, 32.
any judicial opinion, or even intiraa- See also Harrison v. Harrison, 1 Philad.
tion ; and that it is opposed to some 389 ; ante, § 96.
direct decisions, and to the entire cur- ^
... Bonham v. Badgley, 2 Gilman, rent of the judicial atmosphere in this 622.
103 § 123 MARRIAGE IMPERFECTLY CONSTITUTED. [BOOK III.
door of contract.! "When, therefore, we search for those im- perfections which may render void or voidable a supposed marriage, we are called upon only to examine a question of contract between the parties, or mutual consent, as defiiied by the law, with respect to tiiis particular subject. There must be-, in the first place, the consenting mind ; in the second place, the mind must give its consent in fact ; there must be, in the third place, suitable parties whom the law permits to marry, not only in general, but with each other ; and, in the fourth place, there must concur all the other facts which have been made legally essential, — it is not necessary here to explain what they are.


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