Stansbury v. Bertron , 7 Watts & Serg. 362 ( 1844 )

The opinion of the Court was delivered by

Gibson, C. J.

A statute which founds an action is to be strictly pursued. The notice to tender amends, which is the first step in a case like the present, is in the nature of a declaration, pointing out, with sufficient precision to preclude mistake, the nature and circumstances of the injury to be redressed. Without the technical formality of a declaration, it should have all the substance. Such is the result of the cases quoted in the argument. What, then, is the rule in pleading ? A circumstance unnecessarily set out must be proved as matter of substance, because the party has made it so, though proof of it would otherwise have been unnecessary; and this holds with undiminished force in regard to recitals of statutes. A plaintiff in an. action founded on a statute must set forth every fact necessary to bring his case within it; but as it is unnecessary to recite a public statute, by reason that the Judges are bound to take notice of it without pleading, the more prudent course is not to attempt it, and thus avoid the risk of variance. It was said by Lord Holt in Mills v. Wilkins, (6 Mod. 62), that the title of a statute is no more a part of it than the title-page is part of a book; but that when the plaintiff attempts to recite it, “ he thereby ties himself to an Act so entitled, and, if he cannot produce it, he is gone.” The rule equally holds in regard to the recital of the date, a qualification of its application being found only in the mis-recital of a public statute in an indictment concluding, not against the form of the statute generally, but against the form of the statute in such case made and provided. The Judges, being directed by the conclusion to the only statute made for the case, may give judgment on it as the foundation of the indictment, and disregard the mis-recital as surplusage. Here, however, there is neither conclusion nor anything else pointing even indirectly to the true statute; and the plaintiff, by giving a wrong date as matter of description, has pinned himself down to the production of a statute which does not exist.

There certainly was evidence in disproof of publication of bans to be left to the jury. The marriage was private, secret and sudden ; indeed, it was solemnized after a courtship of four days—a period too short to admit of publication.

But the father had ceased to stand in the relation of a parent, or consequently of a party who could be grieved. By turning his daughter loose on the world to shift for herself, he relinquished his paternal rights in relation to her person, and absolved her from filial allegiance. What though she were permitted to return to him when the intoxication which was the cause of her expulsion had passed away ? It was only to be turned out of doors when he should again get drunk. I pretend not that a single expulsion would forfeit his rights as a parent; but a repetition, attended with treatment which would render a continuance of her residence with him intolerable, would authorize a departure from his house, and enable her to contract marriage as an agent independent of him. There was evidence of such repeated acts of barbarity and violence to this daughter and the rest of the family, as justified her in forming a connection and an establishment independent of him. What right, then, has he to complain that she did so without consulting him, when he had made such a choice on her part indispensable J The maxim is, volenti non fit injuria ; and by wilfully subjecting her to the necessity of entering into matrimony, he excluded himself from the protection of the statute.

Judgment reversed.