Cornelius Dowd Qui Tam v. Seawell

• Decision Date: 31 December 1831
• Citation: 14 N.C. 185
• Court: North Carolina Supreme Court
• Parties: CORNELIUS DOWD QUI TAM v. GIDEON SEAWELL.

14 N.C. 185

CORNELIUS DOWD QUI TAM

v.GIDEON SEAWELL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1831

1. In debt on the Act of 1778 (Rev., ch. 134) for marrying a couple without a license, if the writ demand £50, the penalty imposed by the act, and the jury find a verdict for £24.10, the sum to which the penalty is scaled, it is a variance for which the judgment will be arrested.

2. In debt, the exact sum demanded in the writ need not be found by the jury, when from the nature of the demand it is uncertain.

3. But where the contract, as stated in the declaration, fixes the amount due, the verdict must agree with the writ, or the judgment will be arrested.

4. Not because a specific sum is claimed, but because there is a variance between the declaration and the proof.

5. The same principle applies to actions of debt on penal statutes.

6. If the statute inflicts a penalty to be measured by reference to some uncertain standard, the verdict stands well with the declaration, although they do not agree.

7. But if the penalty be certain, the very sum demanded by the writ must be found by the jury.

8. Damages cannot be recovered in debt on a penal statute, but it is not error to demand them.

DEBT, upon the statute prescribing the rules to be observed in solemnizing the rites of matrimony. The writ demanded "fifty pounds, which he (the defendant) owes and unjustly detains, to his damage one hundred dollars, due for having solemnized the rites of matrimony between, etc., contrary to the act of the General Assembly in such case made and provided."

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.

RUFFIN, J. 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 for twenty-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 simplecontract, 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 in Aylett 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 proof aliunde, 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,...