Miller v. Smith

Supreme Court of Pennsylvania

Miller v. Smith

12 Serg. & Rawle 145, 1824 Pa. LEXIS 127

DecidedNovember 1, 1824

StatusPublished

This text of 12 Serg. & Rawle 145 (Miller v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Smith, 12 Serg. & Rawle 145, 1824 Pa. LEXIS 127 (Pa. 1824).

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Opinion

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

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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

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Bluebook (online)

12 Serg. & Rawle 145, 1824 Pa. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-smith-pa-1824.