Duffy v. Averitt

• Decision Date: 30 June 1845
• Court: North Carolina Supreme Court
• Parties: CHARLES DUFFY v. JOHN A. AVERITT.

5 Ired. 455

27 N.C. 455

CHARLES DUFFY

v.JOHN A. AVERITT.

Supreme Court of North Carolina.

June Term, 1845.

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. Green 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 dollars, 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:

+----------------------------+
                ¦“State of North Carolina, ¦)¦
                +--------------------------+-¦
                ¦Onslow County.            ¦)¦
                +----------------------------+
                

To any lawful officer of said county to execute and return within thirty days from the date (Sundays excepted.) Whereas, Charles Duffy, overseer of 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 penalty 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.

RUFFIN, 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 objections of that kind 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...