19 F. Cas. 983 | U.S. Circuit Court for the District of Southern New York | 1847
This case has been carefully considered by the court, and we are prepared to pronounce judgment in it. The urgency of other engagements since the argument has not allowed us time to draw up at length the reasons in support of the decision. The court is abouj to adjourn, and the judges cannot have opportunity for further conference previous to November; and, If we defer the decision to that period, a year’s delay to the parties may be caused, should an appeal be taken. We shall therefore order judgment to be entered for the plaintiff on the demurrer, only indicating the general grounds upon which the decision is placed.
1.We consider that, as a general principle, the capacity or incapacity to marry depends on the law of the place where the marriage-is contracted, and not on that of the domicil of the parties. This principle need not be-asserted as absolute in all cases. Incest, polygamy, and practices outraging the moral sense and the usages of civilized nations, may be excepted from the rule, without impairing its justness and efficacy.
2. We regard the decree of divorce pronounced by the court of chancery of the stater of New York to be, in its purport and by force of the statute of the state, an absolute-dissolution of the marriage contract as to both parties, and that the disqualification or-disability to marry declared by the statute, attached to Ponsford, by way of penalty, only within the state of New York, and did not incapacitate him from contracting a sound, and valid marriage in the state of New Jersey, where the same disability did not exist. '
3. We think that the validity of the marriage in New Jersey would not have been affected if both parties had resorted there to-evade the prohibitory law of New York. And' clearly, where one party was innocent and ignorant of such purpose, the mala fides of the other could not impeach the marriage, if it was lawful in all other respects. Judgment for the plaintiff.
