Duffy v. Averitt, 27 N.C. 455, 5 Ired. 455 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 455, 5 Ired. 455

CHARLES DUFFY vs. JOHN A. AVERITT.

An objection to the process, by which a defendant is brought into court, comes ■too late after he has appeared, and pleaded in bar of the action.

A warrant from a justice in a civil case need not on its face be returnable on a certain day or at a certain place, but only within thirty days. The day and place are to be notified by the constable, who serves the warrant.

A warrant from a justice in a civil case requires no seal.

A warrant from a justice, in a civil case, must name the proper parties, and state a cause of action within the justice’s jurisdiction, both .as to the nature and amount of the demand.

The overseer of a road may recover in his own name the penalty for hands not working on the public road. He is not bound nor required to sue “ for himself and the county,” since the fine is to be applied by the overseer to the keeping up of the road.

Judgment on a warrant'by an overseer of a road for thirty dollars, for thirty hands not working on a public road, when the jury fined only twenty-eight dollars, will not be arrested. As there are no declarations on a warrant, the court will intend there were thirty counts for $1 each per hand, and then there may be judgment on the twenty-eight counts proved, and not on the other two.

The warrant, for the penalty for not working on a road, need not shew on its face that the road was in the county in which the warrant issues. Warrants never have a venue. The objection, even if the case had been in a court of record, must have been taken advantage of by a plea in abatement.

A warrant for a penalty must set forth the acts, which give the penalty to the plaintiff, in order to shew “ how the sum is due,” and this is a matter of substance. But the plaintiff may amend by agreeing to claim no costs from the defendant.

The cases of Welsh v. Scott, 5 Ired. 72. Greeti v. Mangum, 3 Murph. 39.. •Scroter v, Harrington, 1 Hawks, 192, and State v. Muse, 4 Dev. & Bat. 319, .cited and approved.

Appeal from the Superior Court of Law of Onslow county, at the Spring Term, 1845, his Honor Judge Settle presiding.

This action commenced by a warrant, returnable before a justice of the peace, for a penalty or forfeiture of thirty dob lars, incurred by the defendant for refusing or neglecting to send thirty hands to work one day on the public road, lying between Doctor’s Bridge and the Dark Entry, in Onslow county. The warrant was as follows, to-wit:

í( gtate 0f Carolina, P Onslow County, jj

To any lawful officer of said county to execute and return within thirty days from the date (Sundays excepted.) Whereas, Charles Duffy, overseer cf the public road, leading from the Doctor’s Bridge to the Dark Entry, complains, that John A. Averitt justly owes him the sum of thirty dollars, for his nonattendance on said road for thirty hands, which said Averitt is entitled to send on said road, and failing to do so, after being duly sworn according to law. These are therefore to command you to bring the said Averitt before me or some other justice of this county, to answer said complaint. Given under my hand, &c. (Signed)

J. M. FRENCH, J. P.”

The defendant in the County Court pleaded, General Issue. ,On the trial it appeared in evidence, that the defendant was the owner of twenty-eight hands, liable by law to work on this district of road, and had been duly notified by the plaintiff, who was the overseer of the said district of road, to send all his hands, liable to work on the road, at a certain time and place, for the purpose of repairing the same. After the jury was impannelled in this case, and before a verdict was rendered on the same, the defendant’s counsel moved to dismiss the suit or non-suit the plaintiff, on the ground; First, that the warrant was defective, because it did not refer to the statute, which gave the penalty sued for, and that omission was fatal; Secondly, that there was no seal annexed to the name of the justice of the peace, who granted the warrant. By the consent of the parties, his Honor reserved these questions •, and the plaintiff then proved, that the defendant, after being duly notified, failed to send twenty-eight hands to work on the road for one day, and a verdict was rendered by the jury in favor of the plaintiff for the sum of twenty-eight dollars. Upon the rendition of this verdict, the defendant’s counsel moved in arrest of judgment: 1st. That the warrant did not conclude against the form of the statute; which gave the pen-" alty or forfeiture sued for, nor did it refer to any statute; 2dly, On account of the variance of the sum demanded in the warrant, and that found by the jury; 3dly. That the warrant does not appoint some certain time and place within thirty days, for the defendant’s appearance before a justice of the peace; 4thly. That the warrant does not set forth that the district of road, of which the plaintiff claims to be overseer, is in the county of Onslow; 5thly. That the action for the forfeiture for not working on the road is qui tam in its character, and is so declared to be by the Revised Statutes, ch. 104, sec. 39, and that the plaintiff could not maintain this suit under this warrant.

His Honor overruled all these objections, and refused to arrest the judgment, and rendered judgment in favor of the plaintiff, from which the defendant appealed.

Attorney General for the plaintiff.

No counsel in this court for the defendant.

RtjffiN, C. J.

Most of the numerous points in this case seem to have been taken with but slight consideration.

A warrant is both the process, to procure the defendant’s •appearance, and is in the place of the declaration, to inform him of the nature of the demand. "Several of the objections in this case are for defects in point of form in the warrant, considered as process merely. Were they good, if taken in proper time, they come too late here. That for the want of a seal was taken pending the trial, upon the idea, apparently, that the defect might be cured by -verdict. But, in respect of the time of making the objection, the case is necessarily the same, whether it be made after the case is submitted to the jury on the issues, or after the jury returns a verdict; for, after the trial has begun, the Court will not suspend it for the sake of letting in technical objections, but will proceed with the trial with a view to a determination on the merits- But the objections to the process, as such,, had been before waived by the- plea in bar ; for, as the defendant may appear without process, his appearance and plea admit him to be in Court on sufficient process. The truth is, however, that both of the okjggjjQjjg 0f ]c¡I1(j are altogether unfounded.

A warrant need not contain any special day or place of return. This turns entirely on the act of assembly. That, Rev. St. ch. 62, sec. 7, 8, provides, that warrants shall be made returnable before some Justice of the Peace of the County, on or before thirty days from the date thereof, Sundays excepted. To that, this warrant conforms. It further provides, that upon serving a warrant, the constable, if required, shall take from the defendant a bail bond, “conditioned for his appearance at a certain time and place, therein to be specified, before some justice of the county, where the warrant issued and then it adds, that the warrant “shall be determined on the day appointed by the officer serving the warrant as aforesaid.” The day and place for the return are, therefore, not to be designated in the warrant, but by the constable.

Nor is a seal requisite to a warrant. It is requisite to a State’s warrant for a criminal charge. Welch v. Scott, 5 Ired. 72. That is at common law. But warrants in civil cases owe there origin to the legislation of this State exclusively. The provisions of the acts, respecting the jurisdiction and proceedings before justices of the peace out of Court, render it plain, that the process and proceedings are to be in writing, and, of necessity, verified by the signature of the justice.— But there is nothing in the acts, from which it can be inferred, that the warrant, judgment, or execution is to be under seal; and it has not been the practice to affix a seal to any of those proceedings. Indeed, neither of the Judges of this Court remembers to have seen a seal to a civil warrant.

But, as has been mentioned, a warrant is not merely process, but it is intended to serve the purpose of a declaration, as far as a declaration is deemed necessary in petty causes.— For the act, after specifying the subjects of a justice’s jurisdiction, (including a penalty incurred under a statute,) requires that “ihe sum claimed, and how due, shall be expressed in the warrant.” Consequently,- that instrument mustname the proper parties,- and state a cause of action within the justice’s ju-~ risdiction, both as to the nature and amount of the demand. To the warrant, viewed in this aspect, several of the defendant’s objections are taken ; and they will now be considered.

The plaintiff is Charles Duffy, “the overseer of the public road leading from the Doctor’s bridge to the Dark Entryand the suit is for a penalty, claimed for the neglect of the defend" ant to send his slaves to work on that road, after due summons, It is said, that the plaintiff cannot maintain the suit in his own name alone, because the statute, Rev. St. ch. 104, sec. 39, makes all the forfeitures, incurred under it, recoverable, the one-half to the use of the prosecutor, and the other half to the use of the County, We believe the objection would be well taken, if it depended on that section of the act. But we hold, that the whole act and the-subsequent one of 1842, ch. 65, taken together, remove the objection and sustain the suit in its present form. The first act on the subject was that of 1784, ch. 227, sec. 7, which, among many penalties, gave one of five shillings a day, “to be recovered by warrant and paid to the overseer and by him to be expended in hiring other hands to work on said road.” Then, in 1786, ch. 256, it was enacted, that all forfeitures under the act of 1784, should be recovered by action of debt, one-half to the use of the person sueing, and the other half to the use of the State, unless otherwise provided for in the said act of 1784. In relation, however, to the particular kind of forfeiture, now under consideration, acts passed in 1817, ch. 935, and in 1825, oh. 1287, which, after increasing the penalty to ten shillings, provided, that in all cases where “overseers of roads are compelled to warrant their hands” for neglect to work, the overseers shall be competent witnesses to prove the notice, and that the County shall pay the costs, if the defendant be unable. These several provisions make it very evident, that this penalty on a hand for not working was not intended to be within the general provision of the act of 1786, and to be recovered, one half to the usd of an informer and the other half to the use of the State, but was specially provided for and made recoverable by the overseer for the purpose, exclusively, of being expended on the road. In digesting those ac(;g jnto Revise Statutes, ch. 104, the forfeiture of one dollar a day for each hand' is re-enacted ;• but the provisions for a recovery by warrant, and for the payment to the overseer, and the apropriation of it in his hands to hiring other hands to work on the road are omitted. But enough is retained to shew the omission to have been mere oversight; for in the 11th Section the acts of 1817 & 1825, as just quoted, are incorporated — whereby an overseer, “who shall be compelled to warrant his hand” is yet made a competent witness and exonerated from the costs of the warrant. That makes it apparent, that it was understood, the overseer was still to sue. But it must be admitted, that,- by reason of the express provision of the 39th Section, it was at least,- doubtful, whether he could sue. But the difficulty is entirely removed by the act of 1842; which was, doubtless,- intended to supply the omission in the Revised Statutes and restore the old law of 1784 ; for it enacts “that all fines recovered and collected by the overseers of public roads from persons, who fail to-work on the same, shall be applied by the tiverseers to keep--ing their roads in repair.” Here the right of recovery is expressly given to the overseer, officially. This objection there-fore fails..

The debt demanded in the warrant is $30 for the non-attendance on said road of thirty hands, whieh the said Averitt was bound to send on the said road, and the jury found a verdict for the plaintiff for $28. This formed another ground for the motion in arrest of judgment. There is no doubt, that, when a statute gives as a penalty a sum certain, the declaration must claim that precise sum, and the recovery be accordingly ; otherwise, there would be a variance between the pleadings and the evidence and verdict. But that does not determine the present question. If this statute gave a single penalty of $ 30 for the neglect of a hand, the suit could not be sustained for $ 28 for such neglect of one hand. But that is ñdt our case. The penalty here is $ 1 for each hatld; and it cannot be denied, that, were this a proceeding in a Court of record, the whole sum of $ 30 might be demanded in the commencement of the declaration, and that, yet there might be thirty separate counts, each for a penalty of §1 for the absence of one hand, and that the plaintiff would be entitled to a verdict on as many of the counts as he proved, and could have' judgment on them. Ii is precisely like the common case' of a suit on two bonds, where each is declared on separately; in which each cotint is, to this purpose, in the nature of a sepa-' rate action. But this being a warrant, there could of course' be no subh thing as'seiferal cotints. Yet there is no reason, why two or mofe penalties should not be included in the same' warrant; for the principle of precision in pleading, which' requires separate counts in declarations, has never been applied to warrants. In the first place, the act of 1794, Rev. Stat. 62. s. 21, makes a warrant good without regard to form, if the essential matters be set forth in it. In the next place,'' the act requires that the v/arrant should only express the sum' demanded and “ how due,’5 and according t"o the universal usage, those words are satisfied by stating the debt to be due by bond, note, statute, -or the like/, without a more particular description as to time, place, or other circumstances necessary in a declaration. The warrant,' therefore, must be supported,if by any intendment, it can be fairly taken, as demanding' what’mightbe demanded iU a declaration,'although it might, in • a declaration, be necessary to declare for different parts of the' demand in separate counts. ■ This may be done here, and it is/ indeed, according to the truth of the case, by considering this'’ warrant to be for thirty distinct penalties of one dollar each. Upon proving the 'defendant liable for twenty-eight' of them,' there is no reason why there should not be judgment for them, ' although he had not incurred the other two.

It is furthermore objected, that the jurisdiction of penalties is local, and therefore, that the warrant ought to have shewn,' that the road was in the county in which the suit was brought.1 But the parts of the act respecting proceedings before justices, ■ already quoted, clearly dispense with such a statement. Warrants never have a venue. Besides, the fact must have been proved on trial ¿ for, without such proof, the jury could not have given their verdict; and for that reason, the defect, if one, would be cured by the amendment act. Rev. Stat. c. 3. s. 5. Indeed, had this been an action in a court of record, the objection ought to have been pleaded in abatement. Greene v. Mangum, 3 Mur. 39.

Lastly, it is objected that the warrant does not set forth the acts, which give the penalty to the plaintiff, nor refer to them by the conclusion, contra formam statutorwm.

And this, we admit, the warrant ought to have done, in accordance with the provision, that it must express the sum “ and how due,” and we also admit that the defect is in a matter of substance, and is therefore fatal, unless removed by an amendment.

An amendment has been moved for, and the case last quoted is in point, both as to the power and propriety of allowing it in this court,- and as to the terms, on which it should be allowed. The defendant could only take advantage of it in arrest of judgment; arid then he would not recover costs, but only prevent the plaintiff fiom recovering them from him. The Court will not deprive him of any part of that advantage. But as the suit is brought to enforce a public right, and the justice of the case, as found by the jury, will be promoted by the amendment, we-feel bound to allow it oil condition, that the plaintiff shall give up all claim to costs,- and each party shall pay his own costs, in the same manner as if the judgment were arrested.

Per Curiam, Judgment accordingly.