Donahue v. Dougherty

• Decision Date: 09 February 1835
• Citation: 5 Rawle 124
• Parties: Donahue v. Dougherty.
• Court: Pennsylvania Supreme Court

5 Rawle 124

Donahue v. Dougherty.

Supreme Court of Pennsylvania.

February 9, 1835

IN ERROR.

In an action against a clergyman to recover the penalty for marrying a minor without consent of his parent, under the act of 1729, the plaintiff filed a statement to which the defendant demurred: and afterwards a declaration in debt which he was allowed by the court to substitute for his statement, and judgment of respondeat ouster was entered on the demurrer.

Held that the statement being unauthorized by the act of assembly was a nullity, and the plaintiff might declare as though no legal specification of the cause of action had been made, and the judgment of respondeat ouster, though unnecessary, did not vitiate the subsequent proceedings. Nor was the verdict bad as being founded in part on the defective statement, which was a mere nonentity and entirely superseded by the declaration.

A judgment after a trial, on the merits, is not to be treated as erroneous because there was no plea.

A writ in debt is within the remedy prescribed by the act of 1729 by " bill, plaint, or information."

The grievance, to entitle the plaintiff to recover, is not necessarily an actual and specific damage; it is sufficient that the marriage is an unjustifiable interference with the relation existing between the parent and his offspring, and in that aspect, a grievance in contemplation of law. Per GIBSON, C. J.

It is no defence that the clergyman misconceived the age of the person married.

The District Court for the city and county of Philadelphia has jurisdiction of this action; it being a civil remedy for a private injury.

ERROR to the District Court for the city and county of Philadelphia.

This was debt brought by Dougherty against the Reverend T. J Donahue to recover the penalty of fifty pounds for marrying his infant son without his consent. On the 28th April, 1831 the plaintiff filed the following statement of his claim.

" The defendant is a clergyman, and on the 13th day of February, 1831, at the city of Philadelphia, united in matrimony and joined in marriage Thomas B. Dougherty, a son of the plaintiff, under the age of twenty-one years, with Ann M'Callister, without the knowledge or consent of the said plaintiff.

For this wrong the plaintiff claims damages in the sum of fifty pounds, according to the provisions of the act of assembly in such case made and provided."

On the 8th of June, 1831, the defendant filed a general and special demurrer to this statement.

The plaintiff afterwards, on the 12th of July, 1831, filed a declaration in debt, and entered a rule on the defendant to plead.

On the 4th March, 1832, the defendant pleaded " not guilty with leave."

On the 10th March, 1832, the court below allowed the plaintiff to amend by substituting his declaration, filed 12th July, 1831, for the statement, and the plaintiff having joined in demurrer, judgment of respondeat ouster was entered, and a rule granted on the defendant to plead in six days.

Afterwards, on the 26th October, 1832, the cause came on to be tried, and a verdict was found for the plaintiff, for one hundred and thirty-three dollars and thirty-three cents.

On the trial, the plaintiff gave in evidence the testimony of three witnesses, Rosanna Pollock, Samuel M'Collin, and Mary Toole: the first of whom testified that she knew that the plaintiff's son Thomas was born on the night on which the news of peace between this country and Great Britain arrived, to wit, on the 15th of February, in the year 1815. That he was about sixteen years of age when joined in marriage by the defendant. M'Collin testified that the plaintiff's son was joined in marriage to a young lady by the defendant in February, 1831, about seven o'clock in the evening, at the apartment or room of defendant; that there were a candle and a fire burning in the room; that the plaintiff's son was wrapped in a large cloak, and was about five feet ten inches in height; that the witness should have judged him to have been then upwards of twenty-one years of age; that he told the witness that the plaintiff's son was twenty-one years of age; that the clergyman (the defendant) did not inquire his age, and that the defendant did not ask nor receive any pay or fee for performing the ceremony, that he saw or knew of. Mary Toole, the third and last witness examined by the plaintiff, testified, that she was present when the defendant joined in marriage the plaintiff's son to Ann M'Callister; that the defendant asked him no questions as to his age; that according to the witness's judgment, the plaintiff's son was twenty-one or twenty-two years old, and that he alleged he was of such age.

The counsel for the defendant requested the judge to charge the jury, that the plaintiff, to sustain this action against the defendant, should prove, first, that the plaintiff was grieved by this act of the defendant in joining his son in marriage; secondly, that if the defendant had good reasons to believe from the appearance of the son, or if the jury believed that the defendant honestly thought that he was twenty-one years of age, then the plaintiff could not recover; thirdly, that there was not sufficient evidence of the birth of the plaintiff's son, or of his minority at the time of the marriage, produced or given by the plaintiff to the jury; fourthly, that an infringement of the act of assembly in such case was an offence, the penalty for which was to be recovered by bill, plaint, or information, by the person or persons who could show that he, she, or they was or were grieved, and that the clergyman had not made such publication as was required by the said act of assembly, and that the penalty could not be recovered in a civil action of debt for fifty pounds.

The judge charged the jury that,

The plaintiff need not make such proof of grievance or of tuition.

That the plaintiff could recover even if the defendant were mistaken, for he married them at his peril.

That the jury must judge for themselves as a matter of fact whether the testimony was sufficient to prove the birth and minority of the plaintiff's son, and--

That the plaintiff could recover in the form of action (of debt for fifty pounds) which he had adopted.

The defendant excepted to this opinion of the court, and assigned for error as follows:

1st. The court below erred in overruling the general and special demurrers to the statement filed by the plaintiff below, and in entering judgment of respondeat ouster against the defendant below.

2d. The court below erred in allowing the plaintiff below to amend by substituting for his statement the declaration filed on the 12th of July, 1831, because,

First. Being a penal action, no amendment was allowable therein. Secondly. Because the declaration sets forth a new and different cause of action from that set forth in the statement.

3d. There is error in this, that the writ and declaration are in debt, whereas the act of assembly prescribes the remedy to be by bill, plaint, or information.

4th. The court below erred in charging the jury:

First. That the plaintiff below need not make proof of grievance by him suffered, by reason of his son's marriage nor of tuition in or by him, of such son. Secondly. That the plaintiff below could recover in this action, although the defendant had been honestly mistaken as to the age of the minor; and that he married the parties at his risk. Thirdly. That the plaintiff below could recover in the form of action pursued by him.

5th. The verdict being general upon both declarations, and the first being defective and bad, the judgment cannot be supported.

6th. The plaintiff's statement being for a " wrong," claiming damages in the sum of fifty pounds, the plea filed on the 4th March, 1832, by the defendant, follows the statement, and is " not guilty." But the court below having allowed the plaintiff, on the 10th of March, 1832, to substitute the narr. in debt, previously filed, and granted a rule to plead in six days, no plea was pleaded to the substituted narr., consequently, there being no issue, the judgment cannot be supported.

Troubat and Haly for the plaintiff in error argued:

1. The objection which first occurs to the judgment and proceedings here, is, that not only the act of assembly on which the action is founded, is antiquated and unadapted to our present condition, (however salutary it might have been a century ago,) but it is utterly incongruous to impose a penalty under it on a clergyman or justice, for going through a ceremonial which this court have declared to be superfluous, and which might be performed as effectively without as with their interference. Marriage, however sacred as a religious rite is, according to the law of Pennsylvania, but a civil contract which may be completed by any words in the present time, without regard to form. Hantz v. Seely, 6 Binn. 405. This decision nullifies the act of assembly in question, and declares the aid of either the ecclesiastic or judicial functionary superfluous. Where minors thus marry, the contract is either void, voidable, or perfect. If perfect, then the clergyman or magistrate...