Coley v. Lewis

• Decision Date: 31 October 1884
• Citation: 91 N.C. 21
• Court: North Carolina Supreme Court
• Parties: ASA COLEY v. R. J. LEWIS.

91 N.C. 21

ASA COLEY

v.R. J. LEWIS.

Supreme Court of North Carolina.

October Term, 1884.

CIVIL ACTION tried on appeal at Spring Term, 1884, of HALIFAX Superior Court, before Avery, J.

Judgment for defendant; appeal by plaintiff.

Mr. R. O. Burton, Jr., for plaintiff .

Messrs. Mullen & Moore, for defendant .

SMITH, C. J.

The plaintiff's action is to enforce the penalty of two hundred dollars, alleged to have been incurred under the act of February 12, 1872, constituting chapter 42 of THE CODE, and entitled “Marriage and Marriage Settlements and the Contracts of Married Women.”

The material facts presented in the “case agreed” and submitted to the judge in the superior court for his determination of the law arising thereon, are these:

On December 14, 1881, one Lewis Edwards applied to the defendant, who was then register of deeds for the county of Halifax, for a license for the marriage of Alick Powell, his brother-in-law, and Bettie Vine, stating at the time that the latter, then residing with her mother, was under the age of seventeen years. The defendant at first declined to give the license without the written permission of the mother. But upon the representations of Edwards as to the condition of the roads and bad weather, the defendant wrote out and signed the license, at the same time preparing the certificate to be signed by the mother and giving her consent to the proposed marriage, both of which were delivered to Edwards with instructions not to deliver the license until the accompanying certificate had been signed.

Upon his return home, Edwards placed the license in his unlocked trunk, whence it was abstracted by Powell and under it the marriage ceremony performed. The certificate was never presented to the mother for her signature, and her written consent was not given.

Section 1814 of THE CODE is in these words: Every register of deeds shall, upon application, issue a license for the marriage of any two persons, provided it shall appear to him probable that there is no legal impediment to such marriage; provided further, that where either party to the proposed marriage shall be under eighteen years of age and shall reside with the father or mother, or uncle or aunt, or brother or elder sister, or shall reside at a school, or be an orphan and reside with a guardian, the register shall not issue a license for such marriage, until the consent in writing of the relation with whom such infant resides, or, if he or she resides at a school, of the person by whom such infant was placed at school, and under whose custody and control he or she is, shall be delivered to him, and such written consent shall be filed and preserved by the register.

The next section prescribes the forms of the license and certificate of marriage, when solemnized by the person performing the service, substantially to be observed.

Section 1816 declares that every register of deeds who shall knowingly or without reasonable inquiry issue a license for the marriage of any two persons, to which there is any lawful impediment, or where either of the persons is under the age of eighteen years, without the consent required by section 1814 (in the original act “section five of this act,” corresponding thereto), shall forfeit and pay two hundred dollars to any person who shall sue for the same.

The inquiry is--has the defendant by his acts in the premises exposed himself...