Opinion of the Court. GEORGE R. H. HUGHES in account with F. M. ZEIGLER. 1866 Jan.11 1872 To balance .... $4628.19 Jun. 10 Balance.... $6409.27 1872 Jun 10 To interest to date.. 1781.08 $6409.27 $6409.27 1872, June 10, To balance account, $6409.27. Chicago, 10 June, 1872. Master's fees, $20.-Paid by solicitor for de fendant. Respectfully submitted, JOHN WOODBRIDGE, Master in Chancery of Cook county. Appellant filed exceptions to the report, which were overruled, and a final decree entered for the amount shown to be due by the report, from which appellant appeals. The first and second errors assigned are, that the court erred in not allowing appellant credit for three-fourths of an item of $40, and one of $100 paid in 1864, costs and attorney fees in a certain chancery suit by him commenced against the heirs of one Robert to compel a conveyance of the title of the property in question. It is claimed the title was placed in Robert as an innocent purchaser, and for the benefit of Zeigler, and that the latter should pay three-fourths of the expense of getting back the title. The evidence shows that Robert was not a purchaser of the property, either innocent or otherwise; he never paid a dollar for the property, and never agreed to buy it. In what manner Zeigler could be benefited by this useless device, is more than we are able to comprehend; in fact, this transaction looks more like an attempt on the part of Hughes to Opinion of the Court. procure the property himself, than anything we can liken it to, and we think the court did right in rejecting these items. The third and fourth errors assigned are: The court erred in not allowing appellant credit for $50 attorney fees by him paid for filing a bill in chancery against the owner of the other half of the lot for a division thereof, and $100 which he paid one Brown, an attorney in Baltimore, for his services in procuring a quit-claim deed of Mager, the mortgagor, aside from the fact that there did not appear to have been any necessity for filing the bill for a division of the lot, as the bill was abandoned and dismissed. We are of opinion, that the 25 per cent which Hughes was to have on the net sales of the property as commissions was intended as payment of attorney fees in the management of the business, and if appellant saw fit to employ attorneys instead of doing the business himself, Zeigler should not be charged with what he paid for their services. The fifth error is not well taken. The same reasoning that applies to the first and second errors assigned will also apply to this. The sixth error assigned is, the court refused to allow appellant, for his services as an attorney, three-fourths of $500. The amount and man In this there was clearly no error. ner in which appellant was to be paid was specified in the written contract between him and Zeigler, and for the court to have allowed him more could not have been sanctioned or justified on any known principle of right. The decree of the circuit court will be affirmed. Decree affirmed. Statement of the case. ELLA LYNDON v. THOMAS LYNDON. 1. MARRIAGE—consent of parent or guardian of minor. The provision of our statute requiring the consent of parents or guardians to be had when the parties intending to marry are in their minority, is founded in justice and in considerations of public policy. In such case they are in a state of servitude to their parents, from which they can not be released except by the consent of the parents. 2. SAME may be avoided before consummation, on the ground of fraud and deception practiced. On bill to annul a marriage, and declare the contract void, it appeared that the complainant was a young school girl, only about fifteen years old at the time of the marriage; that the defendant was employed as her father's coachman, and while in such employ took advantage of his position, while driving the children out, to inveigle the complainant into the marriage; that he procured the license through perjury, by swearing positively that the complainant was of age; and that she never consummated the marriage by cohabitation, but immediately repudiated the same: Held, that the marriage, under such circumstances, ought not to be held valid, but ought to be declared void; but that, had the parties voluntarily lived together as man and wife, the latter knowing that the crime of perjury had been committed, it would have been held valid. 3. CHANCERY PRACTICE—effect of amending bill on default. When, after the defendant's default is taken in a suit in chancery, the complainant amends his bill, this virtually sets the default aside, and the defendant has the right to answer the same without any order setting aside his default. APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. This was a bill in chancery, exhibited by Ella Lyndon, by her next friend, against Thomas Lyndon, to have a marriage declared void. The opinion of the court states the substance of the material facts. Messrs. DENT & BLACK, for the appellant. Mr. JOHN LYLE KING, for the appellee. Opinion of the Court. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court: This was a bill in chancery, in the Superior Court of Cook county, to annul a marriage and to declare the contract void. The court refused the prayer of the bill, and dismissed the same at complainant's costs. To reverse this decree, complainant appeals. The complainant, it appears, was a young girl, about fifteen years of age, the daughter of a citizen of Chicago, who had employed the defendant as his coachman, in which capacity he was accustomed to drive out, in the family carriage, complainant, with the younger children. Instead of abiding by the implied understanding with which he entered his employer's service, it seems he early took occasion to inveigle this girl into the bonds from which she now seeks to be relieved; and he, to do so, committed the crime of perjury, having deliberately sworn before the clerk of the county court, in order to obtain the license to marry, that complainant was eighteen years of age. He swore this positively, not that he was informed and believed she was eighteen years of age, but that she was of that age. Our statute provides, that the consent of parents or guardians must be had when the parties intending this union are in their minority. Being in such condition, they are in a state of servitude to their parents, from which they can not be released except by the consent of the parents. This provision is founded in justice and in considerations of public policy. Appellant was a mere school girl, having just put on long clothes, and from the relations appellee stood to her and to her father, he was bound to respect her position and the father's rights. He entered his service with the implied understanding, at least, that he would violate no trust which the father had reposed in him, and take no advantage of his position, while driving the children out in the carriage, to Opinion of the Court. inveigle one of them into a marriage with him. It was a gross breach of trust, and though appellant was a party to it. before the final consummation she repented of her folly, and returned, so soon as the ceremony was performed, to the protection of her parents, where she has ever since remained, repudiating the affair as one in which her ju lgment had no part, and carried on by her in ignorance of its ultimate consequences, and in a moment of childish foily and delusion. But, to obtain the license to marry this child, appellee resorted to perjury. He deliberately made oath she was eighteen years of age. Whilst the statute nowhere declares a license obtained by such means to be invalid, or the marriage consequent thereupon void, in a court of equity, when application is made to declare such a marriage null, it never having been consummated by cohabitation or coition, it becomes a proper subject of consideration. We have found no case in the books like this. The one approaching it most nearly is Robertson v. Cole, 12 Texas, 356, and we are inclined to adopt the views presented in that case by the Chief Justice in delivering the opinion of the court. He says: "The license under which the officer of the law was officiating was not issued in good faith or on truthful statements, but on misrepresentations and false oaths. It was fair on its face, and was imposed on the plaintiff as one based in truth and as carrying with it all the sanctions of the statute, and as one which, among the public records, would be an evidence that the marriage was consummated with legal formalities, when, in fact, none of these things were true, and the appearance of the document among the public records. would or might operate as an enduring stigma and reproach, and as furnishing evidence that the marriage would have been founded in falsehood and consummated in iniquity." The court then ask, "can the law condemn this victim of deception to a perpetual association with the criminal, by whom she has been inveigled into what, as to her, should be regarded as a mere mockery of marriage? If so, the boast of the law, that |