Gilbert v. Bone

Citations

• 64 Ill. 518

Syllabus

<p>1. Marbiaee—declaration in suit against clerk for issuing license. In a suit by a father against a county clerk to recover the statutory penalty for issuing a license for the marriage of plaintiff’s minor daughter, the material facts to be alleged in the declaration are, that the plaintiff was the father of such minor, that the defendant was clerk of the county court of the county, and as such issued the license without plaintiff’s consent, and that the daughter was then in fact a minor.</p> <p>2. Mabbiaqe license—justification of clerk in issuing. As the statute has conferred power upon the clerk to ascertain the age of the parties sought to be married, by examining the parties or other witness under oath, which power is quasi judicial, it follows that when the exercise of this power is properly invoked by an application for a license, and the same honestly exercised by the examination of either of the parties or other witness on oath, and the evidence produced tends to prove that the person whose age is the subject of inquiry has attained his or her majority, and the clerk so decides, he will not be liable to the statutory penalty, although he may have decided erroneously.</p> <p>3. Same—jurisdiction must he shown—plea. The jurisdiction of the clerk to determine the majority of the parties to be married is known as voluntary in contradistinction to contentious jurisdiction. It is the application for a license, either by or on behalf of the parties to be married, which calls the power into exercise, no action or legal process being necessary. Therefore, a plea of justification showing an examination, is bad in substance unless it shows that jurisdiction was conferred by an application.</p> <p>4. Same—age of parties, how to be ascertained. The statute authorizing the clerk to ascertain the age of those seeking a marriage license, contemplates a p&rsonal examination on oath of the parties proposed to he married, or other witnesses. -A plea attempting to justify hy