
    The Governor, for the use of Smith vs. Rector and Ryland.
    The declaration avers that Rector, with Ryland as surety, executed a bond to the Governor, by which he was bound to pay one thousand, two hundred and fifty dollars, in the event there was lawful cause to obstruct the marriage of said Rector and Elizabeth Smith; that she, the daughter of the plaintiff) Smith, under twenty-one years of age, was taken by the defendant Rector, from the possession of plaintiff, without his consent, and the rites of matrimony solemnised between him and the said Elizabeth, and that at the time of the said marriage and before, the said Rector was a married man. And the court held on demurrer to this declaration that the act of 1778, ch. 7, sec. 3, gives the right to sue on this bond to the “party grieved,” that a female person of the age of twelve, has the right to give her consent to a contract of marriage; that the consent of the father is not necessary after that age, that the parent had no right to complain on the ground that his daughter married without his consent, under twenty-one; and that the existence of a previous valid marriage was a lawful obstruction to the second marriage, and a breach of the bond, but the daughter was the party injured and had alone the right to sue on the bond for that cause.
    Debt by Brown, Governor, for the use of Smith against Rector and Ryland. The third count in the declaration is as follows: “ On the 27th day of January, 1848, in the county of Washington, the defendants Rector and Ryland, made executed and delivered to the clerk of the county court, in consideration that the said clerk would issue marriage license authorising the rites of matrimony to be solemnised between the said Lewis Rector and one Elizabeth Smith of said county, their certain bond in writing, signed with their own proper names and sealed with their seals, a certified copy of which bond is now here to the court shown, the original being on file in the office of the clerk of the county court of said county, and not within the possession or control of plaintiff, bearing date the day and year last aforesaid, wherein and whereby, they, the said defendants, acknowledge themselves to be held and firmly bound unto Neill S. Brown, Governor of said State, for the time being and his successors, in the sum of twelve hundred and fifty dollars, lawful money of said State, with condition to he void, in case there was no lawful cause to obstruct the marriage of the said Lewis Rector to Elizabeth Smith, of said county, otherwise to remain in full force and virtue.; and the said plaintiff says that there was, at the said time of the making and delivery of the said bond by the said defendants, to wit, on the 27th day of January, 1848, a lawful cause to obstruct the marriage of the said Lewis Rector to the said Elizabeth Smith, to wit, that the said Lewis Rector was before, and at that time, a married man, and having a wife at that time living, he, the said Lewis Rector, having been before that time, to wit, on the 4th day of April, 1840, at, to wit, in the county of Johnson, in said State, married to one Susan Widby, or Woodby, or Widbie, of said last mentioned county, who was living and the wife of the said Lewis Rector, at the time of the making and delivery of said bond, by the said defendants. And the said plaintiff says that the said Elizabeth Smith mentioned in said bond, is the child of the said Thomas Smith, for whose use the suit is brought, and that the said Elizabeth is a minor, she being within the age of twenty-one years, and that the said Thomas Smith has legally the entire control over, and the right to the labor and custody of the said Elizabeth, his minor child. Yet, the said plaintiff says that in consideration of the making and delivery of the said bond, by the said defendants, license was issued by the said clerk, authorizing the rites of matrimony to be solemnized between the said Lewis Rector and the said Elizabeth Smith, and by reason of said license, the said minor child of the said Thomas Smith, the said Elizabeth, without his consent, and against his will, was withdrawn from his house and custody to his great grief and damage, and by reason of the issuance of said license, the rites of matrimony were solemnized, in said county, between 'the said Lewis Rector and the said Elisabeth Smith, by one William Read, a minister of the gospel of said county, as therein authorized, by means whereof the said Elizabeth Smith was induced to cohabit with the said Lewis Rector, as his wife, whereby, great infamy and damage has come upon the said Elizabeth and upon the said Thomas Smith. Wherefore the said Thomas Smith avers that by means of the premises, he is grieved and,greatly damaged.
    Yet, the said plaintiff in fact says that the said defendants, although often requested so to do, have not, nor has either of them paid to the said plaintiff, nor to any person for him, the said sum of money in the said bond mentioned, or any part thereof, but to pay the same, they, the said defendants, have hitherto wholly neglected and refused, and still do neglect and refuse to the plaintiff’s damage. Wherefore he says he is grieved and damag-ed fifteen hundred dollars, and therefore he brings his suit.
    There was judgment for the defendants on demurrer and the plaintiff appealed.
    
      Barton, for the plaintiff.
    T. A. R. Nelson and Maxwell, for the defendants.
   McKinney, J,

delivered the opinion of the court.

This is an action of debt to recover the penalty of & marriage license bond. The bond is in pursuance of the act of 1778, ch. 7, sec. 3, with condition “that there is no lawful cause to obstruct the marrige of Lewis Rector and Elizabeth Smith.” The suit is against the principal and one of the sureties in said bond, and is brought for the use of the father of said Elizabeth Smith. The breach assigned in the declaration is, the prior marriage of the defendant Rector, on the fourth day of April, 1840, in Johnson county, in this State, to one-Susan Widby, or Woodby, who was living and the wife of said Rector, at the time of the execution of the bond sued on, and of the pretended marriage of the defendant to said Elizabeth Smith.

The declaration in one of the counts, avers, that said Elizabeth was the child of the plaintiff; that she was a minor within the age of twenty-one years; and that, without the consent of the plaintff, and against his will, she was withdrawn from his house and custody, and the rites of matrimony solemnized between her and said defendant.

The declaration was demurred to, and the demurrer sustained, principally upon the ground that, upon the foregoing allegations, the daughter, and not the father, was the party grieved," within the meaning of the third section of the act above referred to. From the judgment of the circuit court, sustaining the demurrer, an appeal in error has been prosecuted to this court.

For the plaintiff it is argued, that he is entitled to maintain this action, because the marriage of a minor, under the age of twenty-one years, without the consent of the father, is illegal and a breach of the condition of the bond; and also, because the plaintiff was thereby deprived of the services of his daughter, to which, during her minority, he was entitled; and that he is, therefore, “ the party grieved ” in contemplation of law, and consequently entitled to sue for and recover the penalty of said bond.

1. The phrase “lawful cause to obstruct a marriage,” we understand to mean, such cause as would make the marriage void ab initio, by reason of the parties, or either of them, at the time of the marriage, laboring under some one of the civil disabilities created by law. And to maintain a suit upen the bond, it must appear, not only that such disability existed, but likewise, inasmuch as there can only be one recovery upon the bond, that the person suing is, in judgment of law, “the party grieved.”

Is the want of consent of the father to the marriage of a child under the age of twenty-one years, lawful cause to obstruct or invalidate the marriage? We think not. The principle of the common law upon this subject, remains unchanged in this State. By the common law, males at the age of fourteen, and females at twelve, were competent to enter into the marriage relation, or, in the language of the books, were of the age of consent. And if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid; and this was agreeable to the canon law. 1 Bl. Com. 436, 437.

If a boy under fourteen, or a girl under twelve years -of age, marries, such marriage is only inchoate, and imperfect; and when either of them reaches the age of consent, he or she may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. But, if at the age of consent the parties agree to continue together, it is so far a marriage, that they need not be married again, lb. The common law so remained until the 26 George 2 ch. 32, which enacted that all marriages celebrated by license, without the consent of the father, or, if he be dead,, of the mother or guardian, shall be absolutely void.

This statute, which never was in force in this State, was repealed by the 4 George 4 ch. 76. And although the 16th section of the statute re-enacts the like provisions in respect to the consent of parents and guardians, except that it does not declare the marriage void, yet it is held to be only directory, and the want of such consent does not affect the validity of the marriage. See 1 Stephens N. P. 16. 8 B. and C. 29.

The only provision we find, in the Legislature of North Carolina or of this State, upon this subject, is contained in the 6th section of the Colonial act of 1741, ch. 1, which directs that the clerk shall take bond with security in the penalty of fifty pounds, that there is no lawful cause to obstruct the marriage; and in case of minors, if not heretofore married, the consent of the parent or guardian shall be personally given before the clerk, or signified under the hand and seal of the parent or guardian, attested by two witnesses. And by a subsequent clause, the clerk was subject to forfeit fifty pounds, if a license were issued contrary to said act. This requirement of the act of 1741, in respect to the consent of parents, is wholly omitted in the act of 1778, ch. 7, and is repealed thereby. But were it otherwise, the 6th section of the act of 1741, is merely directory to the clerk, and could not in the slightest degree affect the validity of the marriage for want of such consent.

It follows, therefore, that, in this State, a marriage entered into by parties of the age of consent, though under the age of twenty-one, is valid, without the consent of parent or guardian.

2. Whether upon the facts alledged in the third count of the declaration, the plaintiff might not maintain the common law action for the loss of services of his daughter, is a question that does not arise upon this record.

If his right to do so were conceded, it is very clear that he could not, for that cause maintain an action upon the license bond; because, upon the facts set forth in the declaration, the law regards the female as “the party grieved,” and she alone is entitled to recover the penalty.

Whether a case might not occur in which the father would have a right to sue upon the bond, need not now be determined; it is enough to say that such is not the present case. Judgment affirmed.  