50 Ala. 546 | Ala. | 1874
The action is against a probate judge, for illegally issuing a marriage license to a minor. Rev. Code, §§ 2339, 2342. The complaint represents the appellee (plaintiff below) as claiming for himself, and for the use of the State of Alabama, of the appellant (defendant below) five hundred dollars, for issuing, as probate judge of Pike county, a license to solemnize a marriage between J. A. Farnell, the plaintiff’s son, who was then under twenty-one years of age, and had not had a former wife, and Martha A. Dukes, “ without having the consent of the parents of the said J. A. Farnell, either personally or in writing.” The defendant pleaded not guilty, without objecting to the complaint. Upon the issue thus made, judgment was rendered against the defendant for five hundred dollars. It is now objected on appeal, that the complaint does not contain a substantial cause of action, because it negatives the consent of the “ parents,” whereas the consent of one might be sufficient; and because it fails to deny the consent of the parents, or guardian, to the marriage.
The statute uses the word “parents,” which, whether in the singular or plural, is equally applicable to the father and the mother. As, if in the singular-, we could not distinguish which was meant; so, in the plural, proof of the consent of either would be sufficient; unless, perhaps, the known dissent of the father, on account of his greater responsibility for the family, should be held to overrule the consent of the mother. But this, probably, would be determined by circumstances. We cannot suppose separable a consent to the issue of a license, and consent to the marriage. In Blann v. Beal (5 Ala. 357), the plaintiff was held not bound to prove the negative averment of the
The authority given to the probate judge by the statute (R. C. § 796, cl. 5), to employ a clerk to do all acts not judicial in their character, makes him responsible for such acts. The oath of office, and the bond, are qualifications which the judge should exact. The public, knowing the powers of a clerk iii that office, and seeing some one exercising them with the evident knowledge of the judge, may reasonably deal with him as such, and hold the judge responsible for what he does amiss. This would not be the case with a mere copyist, or amanuensis, who was not allowed otherwise to act as clerk, and who by stealth assumed to do so in a particular case. In Cotton v. Rutledge (33 Ala. 110), the issue of a marriage license was held to be a ministerial, and not a judicial act.