O'kelly v. The Athens Mfg. Co.

• Decision Date: 30 June 1867
• Citation: 36 Ga. 51
• Parties: JAMES F. O'KELLY, plaintiff in error. v. THE ATHENS MANUFACTURING COMPANY, defendant in error.
• Court: Georgia Supreme Court

36 Ga. 51

JAMES F. O'KELLY, plaintiff in error. v. THE ATHENS MANUFACTURING COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, June Term, 1867.)

Qui tam. Motion for nonsuit decided by Judge Hutchins, Clark Superior Court, February Term, 1867.

James F. O'Kelly, in his own name, for the use of the County of Clark and of himself, brought qui tam actions against The Athens Manufacturing Company, The Georgia Manufacturing Company, and The Prineton Factory. The cases being-similar, it was agreed that the judgment in one of them should be the judgment in all.

The substance of the petition is that, The Athens Manufacturing Company, a chartered company under the laws of this State for the manufacture of cotton goods and cotton yarns, and required by statute to publish twice during each year, in a public gazette nearest their place of business, a list containing the names of each and every stockholder, *with the amount of stock owned by him or her, had failed so to do five times; to wit, once in 1863, and twice in each of the years 1864 and 1865, whereby it became liable to pay to said plaintiff $5,000 for each of said failures, one-half of which forfeiture belongs to said county and the other half to the plaintiff. The failures being admitted, the defendants moved a nonsuit on the grounds: 1st. Because the action was in the plaintiff's private name, and not in the name of the State, or of the Governor, or Solicitor General; and, 2d. Because the penal statute on which the action was bottomed had been repealed since this action was brought, and the penalties incurred thereby remitted by the State.

The Court sustained the motion, and ordered said case dismissed. Upon this the plaintiff assigns error.

W. L. Mitchell, attorney for plaintiff in error.

Wm. Hope Hull and J. Hillyer attorneys for defendant in error.

HARRIS, J.

The action ''qui tam" was originally one given to the people at large, or rather the forfeitures and penalties prescribed by acts of Parliament were permitted to be sued for by any informer, the act, however, reserving a portion to the king, the poor, or some public use, and hence the name. A suit begun by the informer gave him an exclusive right, and was therefore a bar to other suits. This led offenders to procure their friends to begin this "popular" action, in order to forestall or prevent other actions. This abuse of the suit producing so much collusion, caused the enactment of 4th Henry 7th ch. 20. After this...