Cole v. . Laws

Smith, C. J. — after stating the case: We find no just cause of complaint in the substitution of the two issues in place of the one proposed by the plaintiff. The first was unnecessary, because the facts involved in the inquiry were not contested, and so the jury were directed upon the evidence to find the affirmative. The second and third instructions asked by' the plaintiff have been rendered unimportant by the ruling of the Court, which, notwithstanding the change in the response of the jury, permitted after the rendition of the verdict, awards the plaintiff a recovery upon another and different ground, to-wit, the invalidity of the attempted transfer of the defendant’s official functions to be exercised elsewhere in the county. *656 The plaintiff’s appeal would have been unnecessary if the judgment was such as ought to have been given in the case, whether upon the ground assumed by the Court to warrant it, or upon some other. But if the jury were rightfully permitted to amend their verdict, and the plaintiff had acquiesced in the charge given to the jury, the judgment upon the finding would necessarily have resulted in a judgment for the defendant, and the plaintiff not have the benefit of a new trial in which to test the correctness of his instructions that were refused. We are therefore required upon his appeal to determine whether those instructions ought to have been given, which, if given and followed, would have led to a different result. Upon the evidence, about which there was no dispute, were “probable” reasons furnished to authorize the defendant to believe, and to act upon the belief, that no legal impediment existed to the marriage? Did he make “reasonable inquiry” about the age of the young girl before acting favorably upon the application ? The application — verbal, we suppose — comes from an old man of sixty years, not residing in the same county with that of the plaintiff, and misrepresents that of his daughter. He was personally known — but not his character or reliableness — to the deputy. His sources of information seem not to have been inquired into, nor his reasons for making the application, nor his relations to the parties. He represents a girl of fourteen years to be of twenty-two years. Nor is it shown that anything was said about her parentage and their assent to the projected marriage. In a matter involving such grave consequences and fixing her future life, did the deputy make any reasonable effort to inform himself of the fact, and act with a prudent regard to a parent’s rights in granting, and so soon following the license by consummating the marriage itself? The case cited for the defendant (Bowles v. Cochran, 93 N. C., 398) is not at variance with the view taken of the *657 facts of the present case. There a paper, without signature, however, was produced before the Register, giving the age, by one known to him to be of good character and trustworthy, and the applicant stated that he knew her age to be that stated in the writing — eighteen years. There was nothing calculated to awaken suspicion in the Register’s mind of the truthfulness of the representations, and it was held that the penalty had not been incurred. No such favoring circumstances attend the action of the deputy to excuse his precipitate action. He manifests an inexcusable indifference to the results of his action, and risks the well-being of others upon representations, not themselves suspicious, which have no outside support. The case is not like that of Williams v. Hodges, decided a year since and reported in the 101st volume, page 300, of the Reports, in which more diligence was shown in finding out the facts and the true age of the infant fane, and yet it was held that the Register had been remiss and culpably careless in issuing the license. In the opinion, Merreimon, J., says: “To issue a license to marry, without reasonable inquiry, without care and scrutiny, and where it does not appear probable to the Register that it may and ought to issue, as the law contemplates, is a perversion of the statute, disappoints its just purpose, and oftentimes brings distress and ruin upon individuals and families. To prevent such evils, the statute provides heavy penalties.” The action of the Court in permitting the jury to correct their finding after returning the verdict, and make it what they had agreed and intended it should be, was clearly competent and proper. Such a power is essential to securing a fair trial and a correct verdict, and was, in this instance, properly exercised. The cases cited in defendant’s brief are direct and positive authorities in this Court. Willoughby v. Threadgill, 72 N. C., 438; Wright v. Hemphill, 81 N. C., 33. *658 Without passing upon the question of thé right of the defendant to delegate his authority to another, to be exercised in a different part of the county, we declare there is error in refusing the plaintiff’s instructions, and a venire de novo must be awarded. This disposes of both appeals. Error.