Gilbert v. Wallace G. Bone.
| Decision Date | 30 September 1872 |
| Citation | 64 Ill. 518,1872 WL 8360 |
| Parties | AMON S. GILBERTv.WALLACE G. BONE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.
Mr. J. M. KIRKPATRICK, for the plaintiff in error.
Mr. JOHN J. GLENN, for the defendant in error.
This was an action of debt, in the Warren circuit court, brought by the plaintiff, as the father of Ophelia Gilbert, against the defendant, as clerk of said county, to recover the penalty prescribed by the 10th section of the act concerning marriages (R. S. 1845, p. 354), for the issuing by defendant, as such clerk, of a marriage license authorizing marriage between Emery S. Haradon and said Ophelia Gilbert, without the consent of the plaintiff, he being her father, and she, at the time, a minor under the age of eighteen years.
The declaration contains four counts, each of which sets out a cause of action as above set forth, and much surplusage.
The defendant, besides the usual plea of nil debet, filed a special plea in bar to the whole declaration, to the effect that before issuing the license he, as clerk, etc., for the purpose of ascertaining the age of the said Emery S. Haradon and Ophelia Gilbert, respectively, examined the said Haradon on oath touching the ages of the said Ophelia Gilbert and the said Emery S. Haradon; and it appearing from the testimony and affidavit of the said Haradon that he, the said Haradon, was twenty-one years of age, and that the said Ophelia Gilbert was then of the age of eighteen years, and defendant, believing the said testimony and affidavit to be true, and relying upon the truth of said testimony and affidavit, issued the marriage license mentioned, as he was legally authorized to do as such clerk--concluding with a verification.
To this plea there was a special demurrer. The causes assigned were: 1st, that, as to the first and third counts, the plea amounted to the general issue. 2d, that it is double.
The court overruled the demurrer, and the plaintiff electing to abide by his demurrer, judgment of nil capiat was rendered against him, and he brings the record to this court by writ of error, and assigns for error the judgment of the court overruling his demurrer.
The sufficiency of the plea must be tested by other standards than either of the special causes of demurrer assigned. The surplusage in the counts of the declaration mentioned affords no sufficient ground for the position, that, as to such counts, the plea amounts only to the general issue. The plaintiff can not go beyond the facts necessary to a cause of action in his declaration, and allege other matters by way of anticipating the defendant's defense. This is admissible in a bill in equity, but not in a declaration at law. It is upon the introduction of such matters, some of which are indirectly traversed by the plea, that it is said the plea amounts to the general issue. This position is not tenable, nor is the other, that the averments respecting the examination touching Haradon's age, made the plea bad for duplicity. That was mere surplusage, and does not vitiate.
The plea is one of confession and avoidance. It traverses no material allegation of the declaration, and impliedly admits all such as are well pleaded. It admits, by not traversing, the allegations that, plaintiff was the father of Ophelia; that defendant was clerk, etc., and as such issued the marriage license without plaintiff's consent; and that the daughter was then, in fact, a minor, under the age of eighteen years. These facts were all material to the cause of action, and well pleaded. One count alleges that defendant, at the time, had notice that Ophelia was then a minor. That is not traversed.
Two questions naturally arise for consideration:
(1.) Whether, in any case where the clerk, without the consent of the father, issues a license authorizing the marriage of the danghter, and she be, in fact, a minor, under the age of eighteen years, at the time, such clerk, when sued for the penalty under section 10, can justify and avoid the penalty by setting up an examination of a witness on oath, for the purpose of ascertaining her age, and his finding thereupon as conclusive.
(2.) If he can, whether the matters set up in this plea are sufficient to establish such defense.
The first of these questions will be more easily determined by a consideration of the general purpose of the statute in question. The statute was designed to regulate, as far as practicable, this most important institution of civilized society, by prescribing the modes of marriage and preserving the evidence in each case. But its general policy was the encouragement, not the restraint, of marriage. Hence, we find modes for its celebration, at once simple, free from embarrassment, and adapted to the condition, convenience and preferences of every class of society. No penalties are imposed upon the parties uniting in marriage, for non-compliance with any of its provisions, nor does the statute make the modes therein prescribed indispensable to a valid marriage. Without publication, a license is required; but to secure the obtaining of it, a penalty is imposed upon the minister or officer of the law, authorized to celebrate a marriage, for doing so without the production of a license issued by the county clerk. A certificate of the marriage is required to be made by the minister or officer of the law, and returned to the county clerk who issued the license, with the license, if there be one, within a specified time, and such clerk is required to file such certificate and make a registry of such marriage. This duty is enforced, not by requiring the parties married, or either of them, to attend to its observance, but by the imposition of a penalty upon the minister and officers of the law for its omission.
The general policy of the statute is not only to encourage marriages, but to encourage their celebration in the manner prescribed, so that they may be, in a measure, public, and capable of proof by the registry or the certificate on file in the clerk's office, or a certified copy thereof.
There is also an intention manifested to...
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