Page v. Farmer, 6 N.C. 288, 2 Mur. 288 (1813)

June 1813 · Supreme Court of North Carolina

6 N.C. 288, 2 Mur. 288

Page v. Farmer.

In. an action of debt on a penal statute, thp writ called upon tile Defendant “ to render to the Plaintiff the sum of fifty pounds, “ due under an act of the General Assembly to him, and which from liim he unjustly detains, to his damage, &c.” Held that this writ is substantially in the debet and detinet.

This was an action of debt on a penal statute, and after verdict, it was, moved in arrest of judgment, that the writ ivas not in the debet and detinet, but in the detinet only. The writ called upon Farmer to answer Page of a plea “ that he render to him the, sum of fifty pounds, due, under an act of the General Assembly to him, and which, from him he unjustly detains to his damage, &c.” The Plaintiff contended that the Court must necessarily adjudge from the phraseology of the writ, that the action was in the debet and detinet, and was therefore such an action as the defendant contended should be brought; and it was submitted to this Court, whether this writ was in the debet and detinet, or detinet only.

Tayuoii, Chief Justice,

delivered the opinion of the Court:

it is not deemed necessary to decide the question, whether a vicious writ can betaken advantage of after verdict: or whether the statutes of jeofails extend to actions upon penal statutes. The construction of this writ, which presents itself to the Court as the just, and^noces-sary one, and derived from the unavoidable import of tlie words, renders it a writ in the debet and detivet. Though not precisely in the form that the usage of the law has annexed to such process, yet the words m winch it is expressed will not, without a strained interpretation, convey a meaning substantially different. The Defendant is called upon to answer to the Plaintiff, “ that lie render to him £50, due under an act of Assembly to him, and which the Defendant detains from him.” It is due to the Plaintiff, under or by virtue of the act of Assembly, and the Defendant cannot detain it unjustly, unless it is due from him. If A call on B to demand payment of a sum of money, which the former states to be due to him by bond, the amount of which lie charges the latter with detaining from him', B cannot doubt that the meaning of A is, to charge him with owing as well as detaining the money. Whether the writ uses the verb in the present tense, or substitutes for it the past participle, the charge of owing and detaining is in substance equally made out. The general issue then is, nil debet, to which the verdict of the jury is responsive, by its finding that the Defendant does owe. Let the reasons in arrest be overruled.