52 S.E. 664 | N.C. | 1905
This is an action against the register of deeds to recover the statutory penalty for issuing, without plaintiff's consent, a license for the marriage of his daughter who was under eighteen years of age and resided with him. The judge correctly charged that it was the duty of the register of deeds in issuing a marriage license "to make such inquiry for legal impediments to the marriage and as to the age of the parties as a prudent business man, acting in the most important affairs of life, would make, and to exercise his duties in this respect carefully and conscientiously, and not as a mere matter of form, and if the defendant failed to do so in the issuing of the license for the marriage of plaintiff's daughter, then he did not make reasonable inquiry, and the jury will answer the third issue `No.'"
Where there is a conflict of evidence, whether there has been "reasonable inquiry" is to be submitted to the jury upon all the evidence under proper instructions, but if the facts are agreed, it is a matter of law. Joyner v. Roberts,
We can not concur with the plaintiff's contention that there was not reasonable inquiry because the witnesses were not examined by the register under oath. The Act of 1887, now Revisal, Sec. 2088, does not require that the register shall make inquiry by examination of the witnesses in such cases under oath, but merely declares that he shall have "the power to do so." His using, or failing to use, such discretionary power is merely a circumstance to be considered by the jury. In Agent v. Willis,
In Trolinger v. Boroughs,
In regard to the plaintiff's exception to His Honor's instruction that the burden of proof was upon the plaintiff upon the third issue it may be said the statute gives to any one who will sue for the same a penalty to be recovered of "Every register of deeds who shall knowingly, or without reasonable (160) inquiry, issue a marriage license for the marriage of any two persons" within the inhibition. The cause of action, therefore, consists in the violation of Section 1814 "knowingly *121
and without reasonable inquiry." We can not perceive why the burden of proof upon this issue is not upon the plaintiff. If the two first issues had been found for the plaintiff and no verdict upon the third issue had been rendered certainly no judgment could have been signed against defendant. The plaintiff would not have made out his case. It will hardly be contended that the court could, as matter of law, have instructed the jury to answer the third issue for the plaintiff because the defendant had introduced no evidence tending to show that he did not have knowledge or that he made reasonable inquiry; yet such is the duty of the court when the burden is upon the defendant, and no evidence is introduced tending to persuade the jury to sustain his contention. Such is the basis and result of the application of the rule — the test. Wallace v. Robeson,
The rule laid down by Judge Elliott in his work on Evidence, quoted inMeredith v. R. R.,
The Judgment must be
Affirmed.
Cited: Morrison v. Teague,
(163)