4 Binn. 20 | Pa. | 1811
This is an action of debt for the penalty of 50?. brought by the plaintiff against the defendant a justice of the peace, for marrying his daughter under the age of twenty-one years without his consent, coutrary to the act of 14th February 1729. The Court of Common Pleas ordered a non pros to be entered, because the plaintiff had not given notice to the defendant previous to the commencement of the action, agreeably to the act of 21st March 1772. Two questions arise. 1. Whether notice was necessary? 2. Whether the notice given by the plaintiff was sufficient?
1. The act directs that “ no writ shall be sued out against, nor any copy of any process served on, any justice of the peace, for anything by him done in the execution of his office, until notice in writing of such intended writ or process, shall have been delivered to him, or left at the usual place of his abode by the party, his attorney or agent, who intends to sue or cause the same to be sued out, or served, at least thirty days before the suing out or serving the same, in which notice shall be clearly and explicitly contained, the cause of action, which the said party hath, &c.” This act should be liberally construed for the protection of justices of the peace, who are not often lawyers, and are frequently called on to act in the discharge of their duty, without an opportunity of taking advice. It is but reasonable, that they should have time to reflect, and to make amends to the person injured, in case they should inadvertently do wrong. This is an encouragement to the magistrate, and no injury to the party complaining. The defendant is sued for marrying the plaintiff’s daughter. Was this an act in the execution of his office ? It certainly was, for justices are authorized to sign certificates of marriage by the act of 1700. Then why should not notice be necessary? Because, say the plaintiff’s counsel, the act of assembly directing notice to be given, authorizes the justice, at any time within thirty days after notice, to tender amends to the party complaining. They infer, that an action for a penalty is not within the act, because in such case there can be no amends, the plaintiff being entitled to *the whole penalty. Besides, they consider the justice in the light of an offender against a penal
2. As to the second point, it is necessary to consider the nature of the notice which was given. It contained a recital of the acts of assembly on which it was founded, and of the injury complained of, and concluded with saying, that “I, as attorney for the said William Mitchell, shall commence a suit against you for the sum of 50i., in the name, and for the use of the said William Mitchell, for that you contrary to the said act of assembly did marry his daughter under the age of twenty-one years, &c.” It is not denied that here was clear and explicit notice of the cause of action in express terms, and I think there was by direct implication notice of an intended writ, because we have no way of commencing a suit but by writ. The objection to the notice is, that it makes no mention of the kind of writ or the kind of action. The act of assembly does not require notice of the kind of action but of the cause of action; nor does it in express terms require notice of the kind of writ, but of such intended writ or process. We have but two kinds of writs, a capias and a summons. It could not be material to the defendant to know which of these was intended. But it was very material to be informed that a writ was to be issued against him, and of the cause for which it was to be issued. This was all that was necessary, to enable him to consider whether he had done wrong, and whether he had not better prevent the suit by offering satisfaction. It was the intention of the legislature to furnish the justice, with such substantial information as should enable him to his conduct *with prudence, and not to impose such difficulties on the party complaining as might defeat his action on nice and captious objections. This is the light in which the act of assembly strikes me, and if the subject was entirely new, I think it would not be doubted that the notice was sufficient. But it appears that our act is drawn in
Two exceptions have been taken to the opinion of the Court of Common Pleas delivered on the trial.
The first is, that in a suit brought against a justice of the for taking him to join in marriage a minor under *the tuition or ^er parent, without the consent of such parent living within the state, and who can be consulted with, no written notice is necessary under the provisions of the first section of the act of 21st March 1772. 1 Eal. St. Laws, 604. The words are, “no writ shall be sued out against, nor any copy of any process at the suit of a subject shall be served on, any justice of the peace, for any thing by him done in the execution of his office, until notice in writing, of such intended writ or process shall have been delivered to him, or left at the usual place of his abode, by the party his attorney or agent, who intends to sue, or cause the same to
But it has been further contended, that the opinion of the court below was incorrect, when they decided that the notice given to the defendant was insufficient and defective.
The law professes the intention to render justices of the peace more safe in the execution of their offices, and directs that a written notice of the intended writ or process shall be delivered to the justice, clearly and explicitly containing the *cause of action, thirty days previous to the commencement of the suit. The notice here served on the defendant by the plaintiff’s attorney copies verbatim the whole of the first section and the greater part of the second section of the marriage act of 24th February 1729, including “the forfeiture of 50i. to be recovered in any court of record within this province, &c.” It then states minutely the act of joining Elizabeth Mitchell, the minor daughter of the plaintiff and under his tuition, in marriage with Amos Williams, without publication of banns, or a certificate of the consent of her father, who then lived in Mifflin county; and gives the defendant notice, that as attorney for the plaintiff, he would commence a suit against him for the sum of 50i. in the name of and for the use of the plaintiff, for his violation of the recited act, &c.
The cause of action could not be more clearly and ex
For my own part I feel no repugnance in declaring that I find myself bound by decisions in the books antecedently to 4th July 1776, which are applicable to our local situation and system of jurisprudence, and which do not contravene my ideas of right and wrong. But I think the present case fairly distinguishable from that relied on. The first section of our act of 21st March 1772, is evidently copied from the British statute of 24 Geo. 2, c. 44, merely substituting thirty days for one calendar month. In England, suits commence in the courts of King’s Bench, Common Pleas and Exchequer, by different species of process, and it is well known, that there are some writs that the party may, and some that he may not sue out in such a case. It is truly said that if a plaintiff were to give notice, that he intended to sue out a quo minus iti the court of King’s Bench, the justice knowing that to be a decisive objection, need not tender amends, but may take advantage of the objection at the trial. In this state, all demands of a personal nature are sued for by writ.
The question in this case, depends upon the construction of the act- of assembly of the 21st March *1772. The preamble embraces two considerations, as introductory to the enacting part: The first providing for the justices of the peace against “ vexatious actions, brought for, or by reason of small and involuntary errors in their proceedings.” The second consideration is, the protecting “ the subject from all wilful and oppressive abuse of the several laws committed to the care and execution of the justices of the peace.” I conceive the last consideration fully to embrace the wilful and oppressive abuse of their power, in the execution of the law empowering them to solemnize the marriage ceremony. This being the case, on my construction of the act, the right to a notice, in case of alleged abuse, follows. I am disposed to extend the privilege to justices, in this case, because I think it possible, that, in the solemnization of marriage, the error may not be wilful; and on notice given, they may have it in their power so to explain the error, that a suit may not be brought.
But while I construe the act giving them the privilege of notice, liberally in their favor, I am not disposed to sustain a captious objection to the form; and therefore, I hold the notice given in this case to be sufficient. It conveys such information of the trespass complained of, that it is impossible for the justice not to know precisely the alleged injury ; and to meet, if so inclined, the party aggrieved with explanatory
But, if notice is necessary, as I conceive for these reasons it is, it ought not to lie in the mouth of an officer to catch at a defect of form; nor ought the court to sanction it. In the case of an action merely vindictive, an astutia, to defeat it might be allowable; but in settling a general principle, it cannot be considered. At' the same time, I am far from thinking an actiou of the nature before us, a hard action. The principle is salutary, and for the peace and happiness of families; and I feel a strong sense of the indiscretion of the officer, and much more of his misconduct, if voluntary and malicious. In such a case, if there appeared evidence, I would not *hesitate to certify, and to subject him to double costs to the act.
As to the notice not being in the words of the act, I do not construe it as respecting the distinction of actions according to the form of writs, but as to the nature of the injury complained of. It is in this ease substantial, stating the grievance for which a suit is intended to be brought.
It is true that our act is verbatim from the British statute “ until notice in writing of such intended writ or process, in which shall be clearly and explicitly contained the cause of action.” The English judges have given a construction of their act, which began at Nisi Prius, and which may be called strict, or rather narrow. But there was a distinction in that case, from this; though even in that case, I am not about to approve the decision. We have a right here to consider the ease anew; and under such a notice, as that of Ward and Strickland, I should be inclined to hold it good, more especially in this country, where the substance of things is more regarded than the forms.
Judgment reversed, and Venire de novo.
[Approved in 6 Binn. 85, 87; cited in 12 S. & R. 148; 2 R. 212; 3 W. 147, 319.]