Brooks v. Governor , 17 Ala. 806 ( 1850 )

PARSONS, J.

The material facts contained in each count of the declaration are these: Jesse W. Loe, being elected clerk of the County Court of Pike, gave bond, with sureties, payable to the Governor, with condition that he should well and truly perform all such duties as are or might be required of him by law, during the time he was clerk. He afterwards issued a marriage license, authorising the marriage of William H. Red-man and Mary Ann Lawrence, who was then a minor under eighteen years of age, without the consent of the father of Mary Ann personally given, or without the proof of his consent required by the statute. For this act of the clerk, Robert Lawrence, the father, instituted a suit under the statute, and recovered the penalty given thereby — to-wit, five hundred dollars. Execution was issued on the judgment and returned no property. This suit was then brought on the bond against his securities, and the foregoing facts were assigned as a breach of tho condition. The defendants demurred, but the court held that the securities were liable and overruled the demurrer-.

We,do not think it would aid us, in coming to a conclusion-upon the question raised by the demurrer, to examine whether .the act of the clerk in issuing the marriage license, without the consent of the father of the young lady, was a misfeasance or a malfeasance, or whether the securities of the clerk could in any case be charged upon their bond for a malfeasance of the clerk, which did not include within itself either a misfeasance or a non-feasance in the performance of some duty required of him by law; for we take it to be clear, that the securities of the clerk could not be held liable, either for a misfeasance or a non-feasance in the discharge of his duties, unless such misfeasance or non-feasance was productive of some damage or injury to the party putting the bond in suit. The plaintiff must not only show a violation of a duty, which the law enjoins on the clerk, but he must also show some damage or injury resulting directly to him therefrom ; otherwise he cannot recover. Testing this declaration by this rule, we think it clearly bad. The statute requires that if the male intending to marry be under the age of twenty- # one, or the female under the age of eighteen, the consent of the the parent or guardian of such infant shall be personally .given before the register, or due proof made to him by the oath of at least one credible witness, that such parent or guardian did sign a certificate then produced, giving his consent to the celebration of such marriage. — Clay’s Dig. 373. The act then provides, “ That if any register shall issue a marriage license- without the requisites before prescribed, such register shall for each offence forfeit and pay five hundred dollars, recoverable by action of debt in any court having cognizance thereof, one half to' the use of the State, the other half to the use of the party suing for the same.” The five hundred dollars here given is clearly a penalty, for which any one may sue, but it cannot be said that the act of the clerk, which subjects him to this penalty, was in law an injury or a damage to any one, at the time of doing the act; consequently, no one could then have sued on the bond, for in legal contemplation no individual was then injured, but the clerk had merely subjected himself to a penalty, which could be recovered by any one, who would sue for it in the manner prescribed by the act. The condition of the bond not being then broken, it could not be by the recovery of judgment, and the failure to pay. The penalty is given against the clerk alone, and the statute does not subject his securities to its payment.— We, therefore, cannot do it. The argument, that public policy requires that the securities of the clerk or register should be held liable, may be true, but it is for the Legislature, not the courts, to subject them to such liability. We can only enforce those liabilities, to which the Jaw subjects them.

Let the judgment be reversed and the cause remanded.