¶1— The consent of a parent or guardian, that a license may be issued for the marriage of a minor, is a consent preceding, or attending the issue of the license. It may be expressed to the judge of probate personally, or communicated to him in writing. Code, § 2315. If it is not in either of these modes expressed, but was in fact given, the statutory penalty is not now recoverable. — Code, § 2319. But it must have been given in point of fact; if it was not given, however the judge of probate may have been misled or deceived as to the fact by others than the parent or guardian, the statutory penalty is recoverable. The judge can readily protect himself, by requiring the consent to be expressed to him personally, or communicated to him in writing. It is his.own fault, or misfortune, if he is *427misled or deceived by information derived from others. It is obvious the circuit court erred in the instructions given the jury, and in the refusal of the instruction requested by the appellant. The errors compel a reversal of the judgment.
¶2The death of the original defendant pending the appeal, operates an abatement of the ca.use of suit. In the absence of express statutory provision, actions for the recovery of statutory penalties — actions which are in their nature penal — do not survive. The death of either party, plaintiff or defendant, is an incurable abatement. — Fairley v. Davis, 6 Ala. 375; Jones v. Brooks, 30 Ala. 588. The cause of action not surviving, the case will not be remanded. — Cox v. Whitfield, 18 Ala. 738.
¶3Reversed.