Emerson v. Shaw , 56 N.H. 418 ( 1876 )

FROM MERRIMACK CIRCUIT COURT. The construction of Gen. Stats., ch. 161, secs. 16, 17, contended for by the plaintiff, would assuredly be, as the defendant says to legalize bigamy. This extraordinary consequence is avoided, if we understand that the acts have reference only to such persons as are competent to contract matrimony together; and that this must be so is quite too plain for argument. A contrary view would be no less absurd than to hold that when the legislature point out the mode in which any other contract may be entered into, and the evidence by which it must be sustained (as, for example, in case of the statutes of frauds), they thereby remove all disqualifications, such as infancy, coverture, and the like, and empower all persons to bind themselves by such contracts as they may enter into with the formalities prescribed. These acts were beyond questions intended for those who might legally become husband and wife, and not to encourage and protect adultery by pointing out a mode in which an existing matrimonial tie might be dissolved at the option of the parties, and another equally yielding and temporary be substituted in its place.

The evidence entirely fails to support the declaration. The fault was not matter of abatement, and there should be judgment on the report for the defendant.