#### B. F. WOOLEY v. O. C. BRUTON.

(Filed 29 November, 1922.)

1. Trials — Motions—Nonsuit—Evidence—Statutes—Waiver.

Tbe introduction of evidence by tbe defendant upon tbe overruling of bis motion at tbe conclusion of tbe plaintiff’s evidence, and bis failure to renew bis motion on all tbe evidence, is a waiver of bis right under tbe statute, O. S., 567.

2. Statutes — Marriage — Penalties — License — Justices of the Peace— Ministers of the Gospel — Contracts.

C. S., 2498, requiring that a minister or officer shall not perform tbe marriage ceremony “until there is delivered to him a license for tbe marriage,” is in pursuance of a public policy and requires an actual and not a constructive delivery of tbe license to tbe officer or minister before be shall perform tbe ceremony, and a mailing of tbe license before tbe performance of tbe ceremony, though the officiating officer bad been assured thereof by telephone from tbe register of deeds, is not such delivery as will protect tbe justice of tbe peace from tbe penalty imposed by C. S’., 2499.

Stacy, J., dissenting.

3. Limitation of Actions — Marriage—License.

A summons was issued to recover tbe penalty against a justice of tbe peace, O. S., 2499, for performing tbe marriage ceremony without tbe delivery of tbe license therefor to him, O. S., 2498, within less than a year from tbe time be bad performed it: Held,, tbe plea of tbe statute of limitations, C. S., 443 (2), could not be sustained.

4. Appeal and Error — Objections and .Exceptions — Briefs—Rule of Court.

An exception not set out in appellant’s brief on appeal will be considered as abandoned. Rule 34, 174 N. C., 837.

Appeal by defendant from Bay, J., at the April Term, 1922, of MONTGOMERY.

This action was begun before a justice of the peace against, the defendant, a- justice of the peace, for the recovery of the penalty of $200 for performing a marriage ceremony “without first having a marriage license therefor delivered him as required by law.” Judgment having been rendered against the plaintiff, he appealed to the Superior Court, *439where tbe action was tried de novo. The evidence showed that the defendant performed the marriage ceremony in question at Mount Gilead, in the county of Montgomery, on Saturday night, 22. January, 1916, and the defendant testified that he received the marriage license in the mail from Troy on Sunday, the day after the ceremony was performed. This action was begun on 19 January, 1917. Verdict and judgment for plaintiff. Appeal by defendant.

Bob V. Howell and Dockery & Wildes for plaintiff.

B. T. Poole for defendant.

Clare, C. J.

There were two issues submitted to the jury: (1) “Did the defendant unlawfully and without a license being first delivered to him, as required by law, perform a marriage ceremony between Dock "Wooley and Lucy Barringer?” (2) “Is the plaintiff’s right of action barred by the one-year statute of limitations governing the right to sue for penalty in such case?” The jury responded to the'first issue “Yes,” and to the last issue “No.”

The motion for nonsuit made at the close of plaintiff’s evidence was refused, but the motion was not renewed at the close of all the evidence. The motion for nonsuit at the conclusion of the plaintiff’s evidence was waived by the introduction of evidence by the defendant and the failure to renew motion on all the evidence. C. S., 567. Bordeaux v. R. R., 150 N. C., 530; Smith v. Pritchard, 173 N. C., 722.

It appearing that the summons was issued on 17 January, 1917, and that the illegal act complained of was committed on 22 January, 1916, we see no pertinency in the plea of the statute of limitations, G. S., 443 (2) ; and, indeed, the exception in that regard was abandoned, because not set out in the appellant’s brief. Buie 34 of this Court, 174 N. 0., 837.

The only exception left to be considered is the instruction of the court to the jury that if they believed all the evidence in the case to answer the first issue “Yes.”

C. S., 2499, provides: “Every minister or officer who marries any couple without license being first delivered to him as required by law . . . shall forfeit and pay $200 to any person who sues therefor.”

The defendant testified in his own behalf that one Harris came into his store late Saturday afternoon on 22 January, 1916, bringing Dock Wooley, whom he had arrested in Eichmond County on a criminal charge; that said Dock Wooley wished to settle the matter, and he suggested that the best way was for Dock to marry the girl. Thereupon, he called up over the telephone O. P. Deaton, the register of deeds at Troy, the county-seat, related the circumstances, and Deaton told him *440tbat be would issue tbe license, put it in tbe postoffice, and pbone bim, and tbat after tbe license bad been issued and put into tbe mail be could go ahead and perform tbe marriage ceremony. Later tbat afternoon tbe register of deeds pboned bim tbat tbe license bad been issued and stamped, and was already in tbe postoffice, perfectly all right, and to go ahead and marry tbe parties; tbat this was about 8 or 9 o’clock; tbat be then performed tbe marriage ceremony. He did not receive tbe license until tbe next morning, which was Sunday.

C. S., 2498, emphasizes tbe requirement tbat tbe license must be first delivered to tbe officer before tbe solemnization of tbe marriage: “No minister or officer shall perform a ceremony of marriage between any two persons, or shall declare them to be man and wife, until there is delivered to bim a license for tbe marriage of tbe said persons, signed by tbe register of deeds of tbe county in which tbe marriage is intended to take place, or by bis lawful deputy.” It is true tbat tbe marriage is not invalid because solemnized without a marriage license; Maggett v. Roberts, 112 N. C., 71; S. v. Parker, 106 N. C., 711; S. v. Robbins, 28 N. C., 23—or under an illegal license; Maggett v. Roberts, supra—but it is clear tbat both these sections of tbe statute require tbat tbe license shall be first delivered to tbe officer before tbe marriage is solemnized, else under tbe latter statute be is liable to tbe penalty sued for in this action.

Tbe defendant relies upon tbe well settled principle of law tbat delivery of goods by a vendor to a common carrier is delivery to tbe vendee. Hunter v. Randolph, 128 N. C., 92, and cases there cited. But tbat case rests upon tbe ground tbat tbe carrier is tbe agent of tbe vendee, to whom tbe possession passes from tbe vendor upon tbe delivery of tbe goods to .the carrier. He also relies upon Lynch v. Johnson, 171 N. C., 611, and cases there cited, which bold tbat where tbe bolder of a legal title executes a good and sufficient deed to another for tbe latter’s interest in land and deposits tbe deed in tbe postoffice in an envelope properly addressed, by mailing tbe deed tbe grantor parts with bis authority and control over it, and this passes tbe title in tbe property to bis grantee. But these cases have no bearing upon tbe words of tbe statute, C. S., 2498, which forbids any minister or officer to perform tbe ceremony of marriage “until there is delivered to bim a license,” for such marriage; and C. S., 2499, which imposes this penalty of $200 if tbe minister or officer shall marry a couple “without license being first delivered to bim as required by law.”

These are matters of public policy, and tbe sections above referred to clearly require an actual and not a constructive delivery of tbe license before tbe officer shall perform tbe ceremony. It is needless for us to *441speculate upon the motive of tbe Legislature in making this explicit requirement of the actual delivery of the license. It is sufficient to say “the law is so written.”

It should not pass without some notice that this action, which was instituted in January, 1917, has just reached this Court for decision— a period of nearly 6 years, which argues, together with so many other cases coming up before us similarly delayed, that there is a congestion in the administration of justice which should be remedied.

No error.

Stacy, J.,

dissenting: The only point presented on this appeal is whether the defendant, a justice of the peace, performed the marriage ceremony in question “without a license being first delivered to him, as required by law.” C. S., 2499. It is said in the opinion of the Court that this means “an actual and not a constructive delivery of the license before the officer shall perform the ceremony”; and hence it necessarily excludes the delivery to another for the officer. I do not think the statute, as enacted by the Legislature, is quite so exacting. In the case at bar the defendant, by request, called up the local register of deeds over the telephone, acquainted him with the circumstances, and obtained from him a promise to issue the marriage certificate and to mail it direct to the defendant. This was in January, 1916, before the passage of Public Laws 1921, ch. 129, requiring health certificates, etc. Later, in a telephone conversation with the register of deeds, the justice of the peace was informed, and correctly so, that the license had been issued and properly mailed, and that it was “perfectly all right to go ahead and marry them.” Thereupon, the defendant performed the marriage ceremony.

Both of the officers, with full knowledge of the facts, understood and considered this to be a sufficient delivery of the license, “as required by law.” It was the method mutually adopted for its delivery by the one and its receipt by the other. Unquestionably, what took place amounted to an issuance of the license. It was said in Coley v. Lewis, 91 N. C., 21, that a marriage license was issued “when the instrument, complete in form, passes out of the register’s hands by his own act into the hands of another; and this, unaffected by directions as to terms for its subsequent use.” To like effect is the holding in Maggett v. Roberts, 112 N. C., 71. And it is a universal principle of law that a delivery by specific authorization to a designated agent or agency is a delivery to the principal. 18 0. J., 477; 1 Words and Phrases, 1279. The statute provides for such delivery as is “required by law,” and no more. The register of deeds, under the facts here disclosed, would not be permitted to say that he did not issue the license; and the justice of the peace *442would not be beard to deny tbat be received it, or tbat it was delivered to bim, prior to tbe marriage. “Delivery does not necessarily import an actual physical tradition of possession from one band to another.” Ins. Co. v. Hall, 210 Mass., 332.

It will be observed tbat neither tbe issuance of tbe certificate nor its delivery to tbe officiating officer is a prerequisite to tbe validity of tbe marriage. Maggett v. Roberts, supra. It is tbe status of tbe contracting parties tbat tbe State or society is primarily interested in, and not so much tbe manner and form of tbe “delivery” and return of tbe license. Can it be said tbat an officer who performs a marriage ceremony without first actually and physically having in bis hands tbe marriage certificate, when, at bis request, it has been duly delivered to and received by another for bim, would be subject to'the statutory penalty, and, therefore, guilty of a crime? I think not.