
    C.E. LEMMONS v. F. E. SIGMAN.
    (Filed 20 April, 1921.)
    Register of Deeds, Marriage License — Statutes—Penalty—Evidence—Non-suit — Questions for Jury.
    In an action to recover of the register of deeds of a county the penalties allowed by O. S., 2500, 2503, for issuing a license for the marriage of a female under eighteen years of age, and the evidence is conflicting as to the reasonableness of the inquiry made by the register, the question should be submitted to the jury, and a judgment as of nonsuit thereon is erroneously entered.
    Appeal by plaintiff from Ray, J., at November Term, 1920, of DAVIDSON.
    Civil action to recover of defendant, Register of Deeds of Davidson CountyJ the penalty of two hundred dollars allowed by sections 2500 and 2503, Consolidated Statutes, for issuing a marriage license to one John W. Galloway and plaintiff’s daughter, Alma Lemmons, without tbe consent of ber parents and without reasonable inquiry as to ber age, sbe being at tbe time under tbe age of eighteen.
    TJpon tbe question of reasonable inquiry, tbe only point of difference in tbe case, there was evidence on behalf of plaintiff tending to show that bis daughter lived with him in Winston-Salem at tbe home of one R. E. Rryant; that sbe was only fifteen years old, having reached this age on ber last birthday, 31 March, 1920, and that plaintiff, at tbe time, did not know of or consent to bis daughter’s marriage. R. E. Bryant testified: “I know Alma Lemmons. Sbe was living with ber father, C. E. Lemmons, at my bouse. She was only a child. I would call ber about fifteen years old.”
    Tbe defendant, E. E. Sigman, testified that on 23 April, 1920, John Galloway made application to him, as Register of Deeds of Davidson County, for license to marry Alma E. Lemmons. And further: “I did not know John Galloway. At tbe-time of tbe application there were present Ernest Lemmons and Alma Lemmons, and I took tbe statement from all three of them as to tbe age of tbe parties to be married, and they stated that Alma Lemmons was eighteen years old. I did not know Ernest Lemmons. I observed tbe young lady and sbe looked like sbe might be a young girl of 18 or 19 years old from ber general appearance and dress. Sbe looked like sbe weighed 125 pounds, bad on a long-dress and bat turned down over ber face, and ber face gave tbe impression of one 18 or 19 years of age. John Galloway was a man clean shaven, about 25 years old, and weighed 135 or 140 pounds. Had dark hair and dark skin and bad tbe appearance of being about 20 or 21 years old. They said they were from Winston. I bad Ernest Lemmons, Alma Lemmons, and John Galloway each of them to sign statement and swear to it as it appears on tbe license. Before issuing tbe license I made inquiry as to tbe reliability of tbe parties applying for tbe license. I went into tbe sheriff’s office and saw Dr. M. A. Bowers and told him there was a party from Winston-Salem wanting to secure a marriage license; that tbe contracting parties were Alma Lemmons and John Galloway, and I asked Dr. Bowers if be knew them. He said be did not know Alma Lemmons, but did know John. Galloway. I asked him if be was a fellow of reliability, and be said be was a good reliable fellow and a carpenter at Winston and said, £I know hitm, I am bis physician.’ I have known Dr. Bowers ten years. I knew him at Thomasville where I lived and where be was a practicing physician. Knew bis general character was good. Dr. Bowers has lived in Winston more than a year and be witnessed tbe license and tbe affidavit. And tbe parties applying were at tbe time in my office.”
    Cross-Examination: “I made no effort to call up tbe parties at Winston, either C. E. Lemmons or Virginia Lemmons. Tbe girl said there was no phone at their home. I relied upon the statement of Dr. Bowers as to the reliability of John Galloway. Dr. Bowers told me John Galloway was a reliable party. I knew Dr. Bowers was a man of high character and a good physician and whatever he skid to me I could rely upon. I did not ask Dr. Bowers how long he had known Galloway or what chances he had to know his character. All I wanted to know was if he knew him and if he was a reliable man.”
    Dr. M. A. Bowers made an affidavit which, by consent, was used as a deposition. He stated, in part, as follows: “I told him (register of deeds) that I did not know Alma Lemmons but that I did know John Galloway, and told him that he was a carpenter. I also told him that in my opinion any statement that Galloway would make could be relied upon, as I had no reason to think otherwise from my personal knowledge and information I had of him. Then, after the license was written out and sworn to by the contracting parties, I witnessed their signatures and their marriage in the register of deeds’ office by John Moyer, J. P.”
    At the conclusion of all the evidence defendant renewed his motion for judgment as of nonsuit. Motion allowed, .and plaintiff appealed.
    
      T. W. Kallam for plaintiff.
    
    
      J. R. McCrary and Rapar & Rapar for defendant.
    
   •Stacy, J.

The testimony as to the appearance of the girl, with respect to her age, is conflicting; and, upon the question of reasonable inquiry, the facts are not admitted. Hence, considering the evidence in its most favorable light for the plaintiff, the accepted position on a motion to nonsuit, we think the case should have been submitted to the jury under proper instructions. Snipes v. Wood, 179 N. C., 349; Julian v. Daniels, 175 N. C.; 549; Gray v. Lentz, 173 N. C., 346.

As said in Furr v. Johnson, 140 N. C., 157: “Where there is a conflict of evidence, whether there has been reasonable inquiry is to be submitted to the jury upon all the evidence under proper instructions; but if the facts are agreed, it is a matter of law,” citing Joyner v. Roberts, 114 N. C., 389. The jury alone may pass upon the weight of the evidence or the credibility of the witnesses. .

The judgment of nonsuit will be set aside and the case referred to another jury.

Reversed.  