Dowd v. . Seawell , 14 N.C. 185 ( 1831 )

Upon nil debet pleaded, the jury, before his Honor, Strange, J., at MOORE, on the last circuit, returned the following verdict, "that the defendant does owe the sum of fifty pounds, reduced by the scale to twenty-four pounds ten shillings." His Honor, upon the motion of the defendant's counsel, arrested the judgment, and the plaintiff appealed. We think the decision of the Superior Court right, and that the judgment must be arrested.

It is an action of debt for the penalty for marrying a couple without a license. The sum demanded is one hundred dollars, and the verdict is fortwenty-four pounds ten shillings. The Act of 1778 (Rev., ch. 134), gives a penalty of fifty pounds, which, when scaled, amounts to the sum found by the jury.

It was formerly thought that the action of debt, being for an entire thing, could not be maintained unless the exact sum — neither more nor less — was recovered. This is not now so considered, nor has been for a long time. And the rule is, that in actions where from the nature of the demand the true debt is uncertain, it may be alleged to be large enough to cover the real debt, and there shall be a verdict according to the truth, and judgment thereon. Hence, in debt on simple (186) contract, the declaration is good although the sums demanded in several counts do not amount to or exceed the sum demanded in the writ, or the recital of it in the beginning of the declaration.McQuillin v. Cox, 1 H. Bl., 249; Lord v. Houston, 11 East, 62. And inAylett v. Lowe, 2 Bl. Rep., 1221, it was held that upon a verdict for 100 in debt for 200, on a mutuatus, there should be judgment for the plaintiff. And so, too, in debt on a specialty, if the deed does not of itself show the certainty of the whole demand, but the extent is matter of proofaliunde, the verdict may be according to the truth, and if it be within the sum demanded, there shall be judgment for the plaintiff; as in Incledon v.Crips, 2 Salk., 558; S. c., 2 Ld. Raym., 814, which was debt on a bond, whereby the defendant obliged himself to pay the plaintiff £ 35 for every hundred stacks of wood, and he averred that he delivered a certain number of hundred and one-half, which came to 182.10. Upon demurrer, it was held that there could be no apportionment on this contract for the half hundred, and therefore the plaintiff could not have judgment for that; but it was further held that he might remit that, and have judgment for the rest, because the debt might be more or less by matter extrinsic of the deed, and therefore there was no variance between the deed and the verdict. And this observation shows the true rule; namely, that where the sum demanded is shown in the declaration to be on a contract or other matter, which in itself conclusively fixes the amount due thereon, then the recovery must agree with the demand. For the debt on that contract is that or nothing. This is not because in debt a sum in numero is claimed, but for the more substantial reason that if the recovery of more or less were allowed, there would be a variance between the allegata and probata, and the declaration would convey to the defendant no information of the cause of action. Where the verdict, therefore, may stand with the contract set forth in the declaration, and both be true, there shall be judgment. Where the verdict cannot be made to accord with the contract, there cannot be judgment, as in debt on bond for £ 100, a verdict for $100 is not good, because it (187) could not be for the debt created by the specialty sued on. It is the same upon any written instrument, as upon a bond; if it be declared on as a writing, constituting in itself a substantial contract, as a promissory note. It is not the instrument described, and therefore cannot be received in evidence.

The same principles apply to actions of debt for penalties given by statutes. As in every case, the declaration must set out the matter, whether of contract or law, whereby the demand arises; so in these actions the plaintiff must show a statute giving the penalty demanded by him, and charge the acts which show the defendant to be guilty of the offense within the statute. These allegations are indispensable to enable the defendant to know for what he is sued, and to protect himself by plea in another action for the same matter. Anciently the statute was set out at full length. That was relaxed, and stating it by its title was then allowed. Afterwards, a general reference to it by alleging the particular penalties given thereby, and concluding "against the form of the statute,"was held sufficient, upon the ground that the court was bound to take notice of all public laws, and that the particular statute was sufficiently identified by the statement of the penalty, and of the acts forbidden by it. But certainly there must be some description of it; and if there be no reference to it, the declaration is bad. Scroter v. Harrington, 1 Hawks, 192; Myddleton v. Wynn, Willes, 599.

If, however, the statute itself give an uncertain penalty, or a penalty to be measured by reference to some uncertain thing, then the sum demanded is not conclusive on the plaintiff; but he may recover according to the certainty made by his proof, because he can do no more towards a more definite description of the statute, or of the debt. In an action, therefore, for subtracting tithes against the statute 2 and 3 Ed., 6, which gives the treble value, the judgment shall be according to the verdict, though different from the sum demanded. Pemberton v. Skelton, Cro. Jac., 498. The Court says there that the variance is no objection, because the statute gives no certain sum, but only so (188) much in reference to the value, and the value cannot be positively estimated until it is done by the jury themselves. And the judges distinguish that case from an action grounded on a specialty, in which the certainty of the debt appears, and from an action grounded on a statutewhich gives a sum certain, in both which the precise sum must be demanded. This last position is, to be sure, but a dictum in that case, but it is the point of the decision in Cunningham v. Bennett, 1 Geo., 1 C. B., stated by Mr. Justice Buller in his Nisi Prius, a book of much authority. There it was held that a penal action could not be for less than the penalty given by the statute, and though the plaintiff had a verdict, judgment was arrested. I conclude, therefore, that wherever a statute gives a certain sum in numero, that exact sum must be demanded, else it cannot be taken to be the penalty given by that statute. Here the declaration conforms neither to the Act of 1741 nor that of 1778. The former gives 50 proclamation money to the use of the parish, or by the Act of 1777, to that of the county. The latter gives 50, scaled to 24.10, one-half to the informer and the other to the county. Consequently, the judgment must be arrested for this reason.

The other objection, that damages are demanded, is not a good one. They cannot be recovered, but it is not error to demand them. The case ofFrederick v. Lookup, 4 Burrows, 2018, shows this, for the judgment was reversed only as to the damages assessed, and affirmed for the debt, which was the penalty.

PER CURIAM. Judgment affirmed.

Cited: Skinner v. Moore, 19 N.C. 154; Lash v. Zigler, 27 N.C. 710;McAlister v. McAlister, 34 N.C. 187; Lowe v. Schenck, ibid., 310.