the said clerk, require him to enter the name of the said child, with the time and place of his or her birth. on the clerk 33. Sec. III. The said clerk shall forfeit and pay the sum of five $5 penalty dollars for each and every refusal to enter the said births as aforesaid, for refusal. upon such application as aforesaid being made. evidence in any court in 34. Sec. IV. The said entry so as aforesaid made, shall be received Such registry and held as evidence of the birth and age of such person or persons as it purports to represent, in any court of law or equity in this State, by this State., the production either of the original book of entry, or of the certificate of the same, under the hand and seal of the said clerk; and for which certificate the said clerk shall receive twenty-five cents. An Act to carry into effect the sixth section of the fourth article of the public mon. ed to any in default. 35. No collector, sheriff, coroner, clerk of the superior court, clerk No holder of of the inferior court, or any other person who is or may be a holder of eys to be public moneys, and elected to any office, shall be commissioned by the commissiongovernor, or be qualified by any judge, justice of the inferior court, or office while justice of the peace, until he shall produce to his excellency the governor, and also the judge or justice of the inferior court, or justice of the peace before whom he appears to be qualified, a certificate from the treasurer of the State, countersigned by the comptroller general, certifying that he has accounted for and paid into the treasury all sums for which he is accountable and liable; which certificate shall in each and every case accompany the dedimus potestatem. And whereas, various persons are holders of public moneys, where no evidence exists in the treasurer's or comptroller's office of such fact; 36. Sec. II. In addition to the oath of office, the person elect shall Oath on this swear that he is not the holder of any public moneys unaccounted for. point. 'fice-and in the vacancy. 37. Sec. III. All collectors and other officers hereafter elected Persons not shall apply for and obtain their commissions and certificates, and qual- commissions, applying for ify, within the time and in the manner heretofore pointed out by law, lose the of or their offices shall be considered as vacant, and shall be filled in eligible to such manner as is now prescribed by law; and the person who has failed to obtain his commission and certificate aforesaid, within the time prescribed by law, shall not be considered as entitled to be a candidate for the office; Provided, that this act shall not be construed to affect the election of any collector who may be in arrears for the amount of his insolvent list only, and who have not had an opportunity of having such list allowed from the failure of any court. An Act to amend and explain an act, entitled an Act to vest the appointment of commissioners of academies, vendue masters, notaries public, and lumber measurers, in certain persons therein mentioned, passed the 18th December, 1816-Approved Dec. 22d, 1823. Vol. IV. 14. ities to make and fill va cancies. 38. From and after the passing of this act, the inferior courts, cor- County and porations, and commissioners, respectively, as mentioned in the above town author recited act, shall have the exclusive power of appointing any number appointments of the officers therein mentioned, that they may deem expedient in their respective counties and towns where the number is not defined or limited by law. And also the exclusive power of filling all vacancies which may occur among such of said officers whose numbers are limited by law. Clerks of the infer'r courts required annually to make an ex hibit to the G. Jury of the county funds. Failure is malpractice. Compensation. Acts of minor deputies Sec. II. [Repeals all repugnant acts, and confirms appointments subsequently made by the legislature.] An Act to compel the clerks of the inferior courts, in the several counties in this State, annually, at the first term of the superior court, in their respective counties, to make and exhibit to the grand jury a statement of the county funds, showing the receipts and expenditures of their said counties for the preceding year.-Approved Dec. 22d, 1823. Vol. IV. 112. 39. It shall be the duty of the clerks of the inferior courts, in the several counties in this State, annually, at the first term of the superior court, in their respective counties, to make and exhibit to the grand jury a full and complete statement of the county funds, showing the receipts and expenditures of their said counties for the preceding year; in which statement they shall not only specify all the moneys by them received and paid out, but the names of the persons from whom the same has been received, and for and on what account the same has been paid out. 40. Sec. II. Every clerk failing and neglecting to comply with the requisitions of this act may, for the said offence, be presented by the grand jury for malepractice in office, upon which said presentment it shall be the duty of the attorney or solicitor general to prosecute, as in other cases of presentments by grand juries, for offences punishable by law; and on conviction, the said clerk may be fined, or fined and removed from office, at the discretion of the court. 41. Sec. III. The justices of the inferior court shall allow their said clerks such compensation as is reasonable and just for their services required by this act. Sec. IV. All laws and parts of laws militating against this act are hereby repealed. An Act to legalize the acts of deputy clerks of the superior and inferior courts and courts of ordinary, under the age of twenty-one years.— Approved 20th Dec. 1824. Vol. IV. 113. 42. From and immediately after the passage of this act, all the acts made valid. heretofore done by the deputy clerks of the superior, inferior, and courts of ordinary in this State, under the age of twenty-one years, be, and the same are hereby made as legal and valid as if such deputy clerks, at the date of such acts, had been twenty-one years of age; Provided, that nothing herein contained shall be construed to exempt not exempt. the principal clerks from any liability their deputies may have in Principals Infer'r courts power of ap curred. An Act to vest in the inferior courts of the several counties of this State the exclusive right to appoint notaries public for their respective counties.-Approved 20th Dec. 1824. Vol. IV. 214. 43. From and immediately after the passing of this act, the justices have the sole of the inferior courts of this State shall have the sole and exclusive right pointing no- to appoint notaries public for their respective counties, and to qualify taries public. the person or persons so appointed by administering to him or them the oath prescribed by law, as heretofore administered to notaries public. Their names to be regis tered. 44. Sec. II. It shall be the duty of the clerks of the inferior courts of the several counties of this State, to keep a register of the names of collect the previous, not tions to be held in the several counties of this State, on the 1st Monday Collectors to in January, 1831, for county officers, &c. to omit to hold an election be elected to for tax collector of said year, nor shall any such election be had until tax of the the 1st Monday in January, 1832, when at that time, and on the first the current Monday in each and every year thereafter, there shall be elections held year. in the several counties throughout this State, under the same rules and regulations as heretofore with this exception, viz:-They shall be elected for the purpose of collecting the taxes due for the year preceding their appointments. 57. Sec. II. His excellency the governor be, and he is hereby authorized and required to commission the persons so elected, and to require their qualification to be in accordance with this act; any law to the contrary notwithstanding. DIVORCES. An Act to carry into effect the ninth section of the third article of the constitution.-Approved December 1, 1802. Vol. II. 98. Whereas marriage being among the most solemn and important contracts in society, has been regulated in all civilized nations by positive systems: and whereas, circumstances may require a dissolution of contracts, founded on the most binding and sacred obligations which the human mind has been capable of devising, and such circumstances may combine to render necessary the dissolution of the contract of marriage, which dissolution ought not to be dependent on private will, but should require legislative interposition, inasmuch as the republic is deeply interested in the private happiness of its citizens: and whereas, the constitution of this State declares,-[reciting the ninth section of the third article.*] And doubts being entertained by the judges of the superior courts of this State, with respect to their powers of deciding upon applications for divorce, before the general assembly have legislated upon the said section of the third article of the constitution: For the purpose of obviating said doubts, and of carrying into effect the said section of the constitution, therefore, Sec. I. Be it enacted, &c. [Directs that all divorces shall be a vinculo matrimonii.-Repealed, see Sec. 6.] a suit for 1. Sec. II. The proceedings on divorce shall be by petition to the Manner of court, which petition shall plainly and fully state the cause or causes of commencing the application for such divorce, to which petition the clerk shall annex divorce. a citation signed by such clerk, and bearing test in the name of the judge having cognizance of the case, directed to the sheriff, citing or The section here originally recited, required an act of the legislature to the completion of a divorce. But the amendment proposed in 1832, and passed the next year, makes two concurring special jury verdicts final and conclusive, (see Art. III. Sec. 9, as inserted in this edition). These words, "final and conclusive," in the amendment, were obviously intended, not to abolish the divorce a mensa et thoro, as authorized by the act of 1806, (see Sec. 6, &c. of this title,) but to render the two verdicts, whether for the one or the other kind of divorce, final and complete without any legislative act. The statute of 1806 is therefore retained. The number of persons divorced by the legislature since the date of the present constitution up to the close of the annual session of 1835, is 291,-averaging from 1800 to 1810, about 4; from 1810 to 1820, 8; from 1820 to 1830, 18; and since that time, 23 per annum. Manner of defending it. Judgment by default. Form of the verdict. What to be done where requiring the defendant to appear at the court to which the same is made returnable, thirty days before the sitting of the court, by serving a copy of such petition and citation on the defendant, or by leaving a copy at his or her most notorious place of abode. 2. Sec. III. The following proceeding shall be observed by the defendant, to wit: The defendant shall appear at the court to which the petition and citation are made returnable, and on or before the last day of the court, shall make his or her answer or defensive allegation in writing, signed by the party making the same, or his or her attorney, which may extenuate, deny, or contain as much matter, or as many circumstances, in his or her defence, as the said defendant may think necessary and proper therein. 3. Sec. IV. Where the said defendant shall fail to appear as aforesaid, the court shall proceed to give judgment by default, which shall be inquired of as the law directs, and has heretofore been the custom and practice of courts as in cases of default. 4. Sec. V. The verdict of the jury, which by the aforesaid section of the constitution must in its nature be interlocutory, not definitive, shall be in the form and words following, to wit: "We find that sufficient proofs have been referred to our consideration to authorize a total divorce, that is to say, a divorce a vincula matrimonii upon legal principles between the parties in this case;' a certified copy of which verdict, signed by the clerk of the court at which the said verdict shall have been obtained, together with the records appertaining to the same, shall be and is hereby considered as a full compliance with the aforesaid section of the third article of the constitution. 5. Sec. VI. When any person shall be out of the limits of this the defendant State, that have complaint alleged against them by virtue of this act, resides out of the judge presiding may make a rule of court to compel their attendance, or proceed to trial in case of default. the State. Divorces to conditional. An Act to amend the foregoing.-Approved Dec. 5, 1806. Vol. II. 312. 6. Sec. I. The divorces recognized by this act shall be absolute, be absolute or and totally dissolve the marriage contract, or conditional, and only separate the parties from bed and board, and provide for separate maintenance and support of the parties, and their issue. jury to in the parties before marriage in con The special 7. Sec. II. All cases of divorce which shall come before the superior quire into the court, shall be tried by a special jury, who shall inquire into the situasituation of tion of the parties before their intermarriage, and also at the time of trial, and in all cases where they shall determine in favor of a condiditional di- tional divorce, they shall by their verdict or decree, make provision out of the property of which the husband may be possessed, for the separate maintenance and support of the wife and the issue of such marriage, Their further which verdict or decree, the said court shall cause to be carried into duty in such effect according to the rules of law, or according to the practice of chancery, as the nature of the case may require. vorces. cases. absolute di party not In cases of 8. Sec. III. In all cases where the verdict shall be for an absolute vorce, the divorce, the party whose improper or criminal conduct shall authorize offending such divorce, shall not be permitted to marry again during the life of permitted to the other party, and in case of such second marriage, the party so marry again, offending shall be subject to the pains and penalties enacted against life of the bigamy. Provided always, that where the marriage is declared void Proviso. for such causes existing before such intermarriage as are recognized during the other. * But see Sec. 6 and 7. by the ecclesiastical courts, the said parties may marry again, any thing herein contained to the contrary notwithstanding. * not sanction law, in what be relieved so a separation. commission the terms of commission 9. Sec. IV. In all cases where the special jury shall have brought When the lein a verdict for an absolute divorce, and the general assembly shall gesture wi refuse to pass a law to carry the same into complete effect, it shall be a divorce by lawful for either party to apply to the superior court of said county, manner the after giving thirty days' notice in writing, of such application to the parties may adverse party, if within the State, and if out of the State, three months' far as respects notice, in one of the public gazettes-and it shall be the duty of such court to appoint three commissioners, who shall inquire into the situa- Court shall tion of the parties before their intermarriage, and also at the time of appoint three such inquiry; and shall determine upon the support or provision which ers to adjust may be necessary for the separate maintenance of the wife, having due separation. regard to her situation before marriage, and also the situation of the husband at the time of such inquiry-and the said three commissioners before they proceed to make the inquiry, shall take and subscribe before one of the justices of the inferior court, or justices of the peace of the county, the following oath or affirmation, viz.-I, A. B. do solemnly Oath of the swear, or affirm, that I will, without prejudice or partiality, faithfully inquire, and justly decide upon the case now submitted to me, and that I will make my report or decree thereon according to the principles of justice and equity, to the best of my skill and understanding, so help me God. And it shall be the duty of such commissioners to report Their report their decision or decree in the premises to the next superior court of the judgment the county aforesaid; which shall cause the same to be entered as the of the court, judgment of said court, subject nevertheless to be altered or modi- modification fied by the said court. Provided, application be made to the next of the court. superior court of said county for that purpose, stating the grounds upon which such application is founded, and in such case it shall be the duty of the said superior court to refer the said decree, or report to the same commissioners, with two additional commissioners, who shall take the oath herein before prescribed, and shall proceed to re-examine the said Another decree, and report their decision or decree in the premises, to the next hearing. superior court of said county; which shall be entered as the judgment or decree of said court. ers. the under the Proviso. the duties of 10. Sec. V. All commissioners appointed under and by virtue of Further of this act, shall have power to compel the attendance of such witnesses, the commisas may be deemed necessary by the parties before them, at such time sioners. and place as they may appoint for their meeting; and shall also have competent power and authority to administer an oath to such witnesses, and shall take down the testimony of such witnesses in writing, which shall be annexed to their decree, and deposited in the clerk's office. separation, the debts of 11. Sec. VI. In all cases where provision is made for the separate After such maintenance of the wife according to the provisions of this act, the the husband husband shall not be subject to any contract made thereafter by such not subject to wife, but in all and every such case, the wife shall be subject to the the wife. payment of her own debts, out of her separate maintenance, during the time that such separation, and separate maintenance shall continue. 12. Sec. VII. In all cases of divorce, the issue of such marriage The issue not shall not be bastardized, but shall be capable of taking by descent or ized. distribution from either of their said parents. to be bastard shall furnish 13. Sec. VIII. In all cases of application for a divorce, the party Applicant applying shall render a schedule on oath, of the property owned or a schedule of possessed by said parties at the time of such application, or, if the property. *The concurring verdicts of two special juries made conclusive by the constitution, Art. III. Sec. 9, as amended in 1833. |