
    [Chambersburg,
    November 1, 1824.]
    MILLER against SMITH.
    IN ERROR.
    It is not necessary, that the notice required to be given to a justice of the peace, prior to commencing an action against him for the penalty of fifty pounds, imposed by the act of the 14th of February, 1729, for marrying a minor, without the consent of parent or" guardian, should state that there was no publication of banns. A substantial notice of the cause of action is alone required.
    On the return of a writ of error, to the Court of Common Pleas of Bedford county, it appeared that Mathias Smith, the plaintiff below, brought this action against John Miller, esq., a justice of the peace, to recover a penalty of fifty pounds, for marrying the plaintiff’s daughter Mary, an infant under the age of twenty-one years, to Jacob Wolf, without her father’s consent.
    Thirty days prior to the commencement of the suit, the plaintiff served upon the defendant the following notice:
    “ To John Miller, Esq.
    “ Sir — Take notice, that by an act of assembly of this commonwealth, passed in the year of our Lokd one thousand seven hundred, entitled, ‘An act for the preventing of clandestine marriages,’ it is, amongst other things, provided, that all marriages, not forbidden by the law of God, shall be encouraged; but the parents or guardians shall, if conveniently they can, be first consulted, and the parties’ intentions of marriage shall be made public, by affixing the same on the court house or meeting house door in each respective county, where the parties reside, one month before the solemnization thereof, which publication shall be signed by a justice of the peace of the county; as, by reference to the said act, will more fully appear. And that by an act, entitled, ‘ A supplement to the act, entitled, an act for preventing clandestine marriages,’ it is further provided, that no justice of the peace shall subscribe his name to the publication of any marriage, intended to be had between any persons whatsoever, unless one of the persons at least lives in the county where sueh justice dwells, and unless such justice shall likewise have first produced to him a certificate of the consent of the parent or parents, guardian or guardians, master or mistress of the persons whose names 'or banns are to be so published, if either of the parties be under the age of twenty-one years, or under the tuition of their parents, or be indented servants, if such parent, guardian, master or mistress, live within this province, or can be consulted with. And that, if any justice of the peace, clergyman, minister, or other person, shall take upon him or them to join in marriage any person or persons, or if any justice of the peace shall be present at and subscribe his name, as a witness to any marriage within this province, without such publication being first made, as aforesaid, such justice of the peace, clergyman, minister, or other person, taking upon him to sign, make, or cause to be made, any publication contrary to the directions of this act, or shall marry or join in marriage, any person or persons not published, as in the aforesaid act of assembly and by this act is directed, every justice of the peace, clergyman, minister, or other person, so offending, shall, for every such of-fence, forfeit the sum of fifty pounds, to be recovered in any court of record within this province, by bill, plaint, or information by the person or persons grieved, &c.
    “You will further take notice, that you did, contrary to the provisions of the said acts of assembly, on or about the 22d day of ¡August, now last past, marry 'and join in marriage Mary Smith, daughter of Mathias Smith, of the township of Bedford, in the county of Bedford, the said Mary being then and there under the age of twenty-one years, and under the tuition of her said father, to one Jacob Wolf, without the consent of the said Mathias Smith being thereto first had and obtained. And that, unless within the space of thirty days after the delivery of this notice, you tender sufficient amends to the said Mathias Smith, I, as the attorney of the said Mathias, will commence a suit against you for the aforesaid penalty of fifty pounds, equal in value to one hundred and thirty-three dollars, and thirty-three cents and one-third of a cent, by a writ of summons in debt, out of the Court of Common Pleas of the said county of Bedford, in the name and for the use of the said Mathias Smith, for that you, in the execution of your office of a justice of the peace in and for the said county of Bedford, did, contrary to the said acts of assembly, marry and join in marriage, as. aforesaid, the said Mary Smith, daughter of the said Mathias, to the said Jacob Wolf ; she, the said Mary, being then under the age of twenty-one years, and under the tuition of her said father, Without the consent of the said Mathias Smith being first had and obtained.
    
      James M. Bussel,
    
    Attorney for Mathias Smith»
    f. 12th, 1820.
    
      After this notice had been read, the plaintiff offered to prove, that about three years before, the defendant had united in marriage Jacob Wolf and Mary Smith, the daughter of the plaintiff; that the said Mary was about sixteen or seventeen years old at the time; that the plaintiff did not consent to the marriage, and that there was no publication of banns.
    The counsel for the defendant objected to the testimony, on the ground that the notice did not state that there was no publication of banns; but the court permitted the evidence to be given, and sealed a bill of exceptions.
    
      M(Culloch, for the plaintiff in error.
    Thompson, for the defendant in error.
   The opinion of the court was delivered by

TilghmaN, C. J.

This is an action brought by Mathias Smith against John Miller, a justice of the peace, for the penalty of fifty pounds, for marrying Mary, the daughter of the said Mathias, an infant, under the age of twenty-one years, to Jacob Wolf, without the consent of her father, contrary to the act of assembly in such case made and provided. The plaintiff gave notice of the intended action to;the defendant, thirty days before it was commenced. On the trial of the cause, the plaintiff offered to give evidence, that the defendant had married his daughter Mary to Jacob Wolf; that at the time of the marriage, the said Mary was under the age of twenty-one years; that the plaintiff did not consent to the marriage, and that there was no publication of banns. To this evidence, the defendant objected; but the court admitted it, and the counsel of the defendant excepted to their opinion. The objection is founded on the insufficiency of the notice given by the plaintiff to the defendant, previous to the commencement of the action — it is said to be insufficient in this, that there is no mention of the banns not being published, which the defendant conceives to be essential, because, as he supposes, no penalty is incurred, where there has been a publication of banns, even though the consent of the parent was not given. Whether this be the true construction of the law, it is unnecessary to decide. The question is, Whether, under the pleadings in the cause, and the notice given, the evidence offered by the plaintiff was admissible? It was alleged in the declaration, that there was no publication of banns. The act of the 21st, of March, 1772, directs that thirty days’ notice shall be given of the intended writ or process; a in which notice shall be clearly and explicitly contained the cause of action which the said party hath, or claimeth to have, against Such justice of the peace.” The notice in the present case, in the first place, recited at large- the act for the preventing of clandestine marriages, passed in the year 1700, and the supplement thereto, passed the 4th of February, 1729-30. It then informs the defendant, that unless he tenders sufficient amends, a suit will be commenced against him to recover  