
    MARRIAGE.
    HOLGATE against CHENEY.
    
      Chittenden,
    
    1819.
    WHENEVER it is necessary that a minister be certified of consent, according to the Statute, before he proceed to marry a minor, such consent must be of the parent, if either be living.
    A master, within the meaning of the Act, chnnot be constituted by verbal contract.
    THIS was an action of debt, on the Statute, for marrying Charity Bevins, a minor, to John Battis Bazin, without the consent of plaintiff, who claims the penalty of the Statute, as master of said Charity.
    
      Plea — General issue.
    On the trial, at June term, 1819, it appeared in evidence, that the defendant, who was an ordained minister of the gospel, settled in Milton, in the county of Chittenden, did, on the 17th day of December, 1816, join the said John and the said Char-
      dy in marriage ; that said Charity was a minor, and resided at the time of said marriage, with the plaintiff. It also appeared,' in evidence, that the mother of said Charity (the father being dead) agreed with the plaintiff that the said Charity should live with the plaintiff until she arrived at the age of eighteen years, but the agreement was never reduced to writing.
    There was no evidence that said plantiff ever gave his consent to the said marriage ; but, there was evidence introduced, that the mother of said Charity is still living, and that the defendant, at the time of said marriage, was informed that the-mother had given her consent to said marriage, and that said Charity was not bound to the plaintiff; and, there was evidence introduced, tending to shew that the mother actually gave her consent to said marriage.
    From this statement, the defendant insisted that the plaintiff could not maintain this action ; that the right of action, if any5 belonged to the mother,' and, at any rate, this plaintiff had no right to the penalty of the Statute.
    The defendant also insisted, that, as he was certified of the consent of the mother, as aforesaid, it was immaterial whether the certificate was true or false, provided he supposed it was true.
    The Judge charged the Jury, that if they found the mother-had agreed with the plaintiff, that the said Charity should live with the plaintiff until she arrived at the age of eighteen years, and that the said agreement was still in force, (the said Charity at the time of the said marriage, living with the plaintiff, and the mother not interfering,) that the plaintiff could maintain this action, and prosecute the same to effect, and that whether she had or had not given her consent.
    Verdict for plaintiff) and
    Motion for new tria), founded on exceptions to the opinions and charge of the Judge.
    In support of the motion, Van Ness and Swift:
    
    1. That when this action is-sustainable, by a master, it must be one who is in loco parentis ; that the contract between the mother and the plaintiff, gave the plaintiff no right to the service of the daughter ; the mother could not bind the daugnter,' she having a right to choose her own guardian ; and, that a binding, by parol, was void. Reeves’ Dom. Rel. 341-2-3-4, 8 Term'Rep. 379. 1 Salk. 68. 1 Burns' Jus. 60. 8 John. 328.
    2. That if the contract was valid, and there has been a forfeiture of the penalty ; yet the plaintiff cannot maintain this action. The object of the Statute was not to give a compensation for loss of service, but to secure to the natural relations, that so important a contract, as the marriage of a child, should not be completed without the consent of those most interested .pi the future welfare of the parties, or if there are no parents, then to those who are in loco parentis. While the father is living, the forfeiture is incurred by marrying without his consent ; if he be dead, the mother succeeds to the same rights j all the relations of parent, master, and guardian, may exist at the same time, and the consent of the master cannot be sufficient, when there is a parent.
    3. The certificate of the consent of the mother, proved,- in this case, is sufficient to save the defendant from the penalty.
    4. If this certificate is not sufficient, yet proof of actual consent, is all the Statute requires.
    
      Contra. Farrand and Allen ;
    
    
      This action may be sustained by any person, standing in the relation of master; the mother was the natural guardian of the infant, (the father being dead,) and had all the rights over her that her father could have, until the Court of Probate should interfere, and appoint a guardian , her verbal contract, binding the child to the plaintiff, was valid.' The corpmon law does not require such a contract, to be in writing, and we have no Statute on the subject.
    2. The action must be brought by the person having the control of the infant, and if there be no such person, then by a prochin ami; the Statute intends to give the penalty to- the person injured ; after the infant is bound to a master, the parent ha» no. control of the time or service, arid is not holden for any misfeasance of trie infant.'
    By the Act to enforce a due observance of. the Sabbath,’ Stat. 1 vol. p. 276, parents; guardians, and masters are liable for the fines, &c. yet it would not be contended; that, after the child was bound out, the parent would be liable for the finé incurred by the minor. As the parent is not erititled to the services, or subjected to the misfeasances of the child, he or she cannot maintain this action for the penalty ; the consent of the mother, in this case, cannot protect the defendant; the com sent of the master was necessary, and he only could bring the present action.
    3. If the certificate of the mother’s consent, was sufficient to justify the defendant, yet such certificate ought to have been in writing; the Statute intends some higher evidence should be required by the minister, than mere verbal information.
    4,. It does not appear, from the case, that any actual consent of the mother was given.
   By the Court;

The object of the 4th sectiori of the Act (1 vol. 265) regulating inarriage and divorce, cannot be, to give a compensation for loss of service ; it is very inadequate to that object; the penalty is not proportioned to such an in, jury ; the loss of service may be, in some, cases, for a single day; in others; many years, and the penalty is given; in a certain case, to those wrio are ndl entitled to the service of the minor, i. e. to the next friends. The object rilust be, to prevent clandestine marriages; the consent therefore, is required pf those whose relative situation, to the minor, is such, that they are presumed to .have the greatest interest in preventing an imprudent connexion. Whatever may bé the situation of the minor, whether resident in the family of thé parent or parents, or bound out as an apprentice; or servant, still the interest of the parent, in the marriage of the minor, far, exceeds that of the master, or any other person. Independent of the anxiety of the parent, for the future welfare of the child; the pecuniary interest is great and permanent; for, by the 9th section of the Act, concerning “Legal settlement, and providing for the poor,” Sta't. 1 vol. p. 387, either parent is bound to support the grand-children, in a certain event.

Whenever it is necessary that the Minister of Justice of the Peace, be certified of consent, before he proceed to join in marriage, any person, such consent must be of the parent, if either be living ; if the marriage be celebrated, without such consent, the forfeiture is incurred. In this case, the consent of the mother would have justified the defendant, and the Judgtí ought so to have directed the Jury.

2. The Court consider that the master, within the meaning of the Act, is not any one who stands in that relation to the minor ; a single day’s service, or a mere service, at the will of the minor or his guardian, will create this relation $ but, such a master is not within the meaning of this Act; he must be in loco parentis, one who has the control of the minor for a certain period; this control, or power, over the minor, cannot bé transferred from a parent, by a mere verbal agreement; this was an exception to the effect of verbal agreements, at common law, and this principle is perfectly understood by every individual in community ; no parent ever considers his child bound for a certain period, to a master, unless the contract be at least in writing ; a mere verbal contract is always considered to be at the will of either party.

If common law principles are established by the universal consent and practice of a community, the principle which requires a binding to service, to be by something more than a mere verbal agreement, is so established.

New trial granted.  