Bell v. Wallace

SOMERVILLE, J. — The action is brought against the defendant, who was probate judge of Fayette county, for a penalty of two hundred dollars for the alleged issuing of a marriage license to the daughter of the plaintiff, who was a minor, under eighteen years of age, contrary to the provisions of the statute. — Code, 1876, § 2681, as amended by the act of Feburary 5, 1883. — Acts, 1882-83, pp. 38-39. 1. The complaint was sufficiently full in its allegations to bring the case within the statute, and the demurrer to it [424] was properly overruled. The objection taken was matter of defense to be set up by plea on the defendant’s part, if the facts of the case brought it within the proviso of the act. This proviso declares that, where the penalty is claimed by reason of the minority of either of the parties to whom the license has been issued, the defendant may prove, in excuse or justification of the issue of the license — (1), that the party, whose minority is alleged, presented at the time of the application for license such a personal appearance as would reasonably lead to the conclusion that such party was of the age required by law; and (2), that, in addition thereto, that either the party or some other person has made and subscribed an affidavit that the applicant, if a male, was over 21 years of age, and if a female, over 18 years of age. The complaint was good without negativing this defense by way of anticipation. It was purely defensive, and, as we have said, should have been so pleaded. — Britton v. State, 77 Ala. 202 ; Grattan’s Case, 71 Ala. 344 ; Carson’s Case, 69 Ala. 235 ; Clark v. The State, 19 Ala. 552. 2. It is obvious that to constitute a good defense to the action the plea must not only aver the making and subscribing of the requisite affidavit, but must also aver the further fact required to exist in reference to the personal appearance of the applicant. The two must co-exist, and the one without the other is no excuse or justification for issuing the license where the applicant may have been under the statutory age designated. The first plea was for this reason defective, and the demurrer to it was properly sustained. 3. There could be no prejudice to appellant in the action of the court ignoring the plea in abatement, because the plaintiff "admitted its sufficiency by amending the defect pointed out by it. If the plea had been formally sustained, precisely the same result would have followed. The question, moreover, should have been raised by exception to the ruling of the court, taken in due form by a bill of exceptions, which was not done. 4. For a like reason, as last stated, we decline to pass on the assignment of error based on the action of the court in giving the general charge in favor of the plaintiff. The record contains no bill of exceptions, and, therefore, we can not know that any exception was taken to this charge. The judgment is affirmed.